Sledge v JP Stevens & Company, Inc. Brief for Plaintiffs-Appellees and Plaintiffs-Appellants
Public Court Documents
November 30, 1976

112 pages
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Brief Collection, LDF Court Filings. Sledge v JP Stevens & Company, Inc. Brief for Plaintiffs-Appellees and Plaintiffs-Appellants, 1976. 8d4988c7-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/88307247-e21c-4660-9998-0fd4ba4d5808/sledge-v-jp-stevens-company-inc-brief-for-plaintiffs-appellees-and-plaintiffs-appellants. Accessed April 19, 2025.
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LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW SUITE 400 • 1400 EYE STREET, NORTHWEST • WASHINGTON, D.C. 20005 • PHONE (202) 371-1212 CABLE ADDRESS: LAWCIV, WASHINGTON, D.C. TELEX: 205662 SAP UR FACSIMILE: (202) 842-3211 M E M O R A N D U M September 21, 1990 To: Ron Ellis Steve Ralston Eric Schnapper Kerry Scanlon Ken Kimerling Dick Larson Isabelle Katz Pin&ler From: Rick Seymour Re: Sledge v. J.P. Stevens & Co. (4th Circuit) Nine days ago, I mailed you a copy of our brief in this case. Kerry, who reads his mail closely, noted that pp. 7, 8, and 10-13 were missing from the copies mailed to you. The brevity of this note is due to the fact that I am sprinkling ashes over myself as I write. Herewith are the missing pages. Plaintiffs andtical for the claims arising in either period.15 October 30, 1984 Order adopting the Special Master's recommenda tions, document no. 252; November 20, 1984 Stipulation and Order dismissing 192 claimants who did not provide discovery as or dered, allowing 30 additional days for three claimants to provide discovery, and providing for four other claimants, document no. 253; August 29, 1986 Consent Order resolving certain questions on the timeliness of back pay claims, document no. 263; June 8, 1987 Consent Order ending the first wave of discovery, document no. 270; August 14, 1987 Consent Order on the starting and ending dates of the period of liability, on the second wave of discovery on back pay claims and on the merits of the claims, document no. 272; August 21, 1987 Consent Order dismissing multiple claims, allowing the withdrawal of some claims in their entirety, and allowing the withdrawal of other claims in part, as a result of information obtained on the merits of the claims, document no. 273; September 17, 1987 Consent Order dismissing multiple claims, document no. 274; September 18, 1987 Consent Order on the timeli ness of back pay claims, document no. 275; November 6, 1987 Order on the starting dates of the period of recovery and the dismissal of claims covering earlier periods and allowing the starting date to be raised again based on the theory of a continuing violation, document no. 277; May 13, 1988 Consent Order re-opening the first wave of discovery for 60 days, document no. 286; May 11, 1988 Consent Order allowing the withdrawals of entire claims and of parts of claims, document no. 287; February 23, 1989 Order on Plaintiffs' Motion for Partial Summary Judgment on specified back pay questions, document no. 327, 2 Joint Appendix 541 at tab K; February 12, 1990 Order determining the dates of documented applications, where the dates on the application forms are incomplete or ambiguous, document no. 432; March 8, 1990 Order denying plaintiffs' motion for a determination of their entitle ment to prejudgment interest and for a determination of the rate thereof, with leave to renew the motion upon the final determina tion of the defendant's liability, document no. 442; April 6, 1990 Consent Order on Plaintiffs' Motion for an Order Establish ing a Procedure for Narrowing the Issues as to Delay-in-Hiring Claims, and as to the Dismissal of Unfounded Claims, document no. 456; April 6, 1990 Consent Order on Undocumented Applications, document no. 454; and April 6, 1990 Consent Order on the Defend ant's Application for a Stay of Proceedings and on Plaintiffs' Motion to Dismiss the Defenses Asserted by the Defendant to Back Pay Claims, document no. 455. 15 For example, the February 12, 1990 order determining the dates of documented applications, where the dates on the applica tion forms are incomplete or ambiguous, document no. 432, covered applications filed after November 10, 1972 as well as those filed earlier. Determinations as to the timeliness of claims, with drawals or dismissals of claims to date based on their merits, discovery from claimants, etc., are much more efficiently handled if they are addressed once rather than twice. 7 the company have conducted joint interviews with more than 2,900 back pay claimants, pursuant to stipulated procedures approved by the district court.16 The initial filing of completed question naires filled 16 cartons.17 These interviews took place in the Roanoke Rapids area, and in areas to which large numbers of claimants had moved: Raleigh, Greensboro, Richmond, the Tidewater area, Washington, Philadelphia, and New York. Telephonic inter views took place with claimants elsewhere in the country, in the armed forces in Germany and the Pacific, and on naval vessels docking at various ports of call. Plaintiffs have contracted with the Social Security Administration to obtain annual reports of earnings, to assist in the determination of interim earnings. More than 1,700 consent forms have already been filed with the government, and plaintiffs are obtaining the remainder. Contrary to the implication of the defendant's brief, a great deal of work has been done on the back pay claims, and but for this appeal the day of judgment on those claims would not be long distant. On July 13, 1989, the company moved to vacate the district court's 1975 findings of liability, affirmed by this Court in 1978, on the ground that these findings did not meet the standards set forth in Wards Cove Packing Co. v. Atonio, 490 U.S. ___ ^ 104 L.Ed.2d 733, 109 S.Ct. 2115 (1989).18 The district 16 June 27, 1983 Consent Order concerning discovery from back pay claimants as to the merits of their claims, document no. 164, and the further orders on this subject noted above. 17 Docket entry for July 26, 1984, 4 Joint Appendix 848 at Tab BB. 18 2 Joint Appendix 584 at Teds O. 8 ant's officials favored whites over blacks without regard to qualifications? the defendant never seriously questioned the accuracy of any of plaintiffs' exhibits or analyses although it disputed the conclusions to be drawn from them; and the defendant presented no meaningful analyses of its own. J.P. Stevens used a centralized hiring office, and the same hiring procedures, for all positions at its plants and offices in Roanoke Rapids.22 This case involves the normal in dustrial situation in which employees are hired for what are hoped to be permanent positions. It does not involve seasonal employment. The selection procedures used by the defendant were subjective,23 and all of the persons making personnel decisions were white.24 (a) The Defendant's Records The company did not keep any records of the reasons why 22 See findings 4-5, 1 Joint Appendix 22-23. The one excep tion was a post-suit 1971 change as to the Customer Service Office and the Information Services Center. Applicants for those positions go through the same hiring process as applicants for other facilities in Roanoke Rapids, except that they also had to be approved by company officials outside of Roanoke Rapids. See finding 4, 1 Joint Appendix 22. The cited references to the transcript in these findings can be located in the Joint Appendix as follows: Finding 4: testimony of Mr. Akers, 6 Joint Appendix 2378-79 and 2462-63; Finding 5: testimony of Mr. Akers, 6 Joint Appendix 2464-66. Plaintiffs' exhibit 105 is not in the Joint Appendix. 23 Finding 20, 1 Joint Appendix 26. 24 Findings 17, 18 and 21, 1 Joint Appendix 25-26. The cited references in Finding 17 can be located in the Joint Appendix as follows: testimony of Mr. Miller, 5 Joint Appendix 2112; 4 Joint Appendix 1753-71 (pages of defendant's exhibit 4 out of order and appearing in the middle of defendant's exhibit 2) . 10 it hired one applicant instead of another, why it rejected an applicant, why it assigned one person to one department or job category and another person to a different department or job category, or why it promoted one person instead of another. The application forms of unhired plaintiffs are in the record, and they contain no information from which anyone could glean the reason for their rejection.25 The employment records of plain tiffs who worked for the company are also in the record, but they contain no information explaining the plaintiffs' initial assign ments to particular jobs or departments, or the reasons for the plaintiffs' lack of promotion.26 Nor do these illustrative records even show the names of the company official who made the decisions in question. The unhired applicant, and the misassigned or unpromo ted employee, cannot supply the missing information. Applicants are routinely told only that they should come back later, or that nothing is available at the time, or that they will be called if anything comes open.27 The defendant never produced at trial any evidence showing why any of the named plaintiffs was not hired, or was not assigned to a better job, or was not promoted to a better job. Indeed, the defendant admitted it did not know why plaintiff Sledge was not rehired, and that its records did 25 Plaintiffs' exhibits 33, 35, and 37, 4 Joint Appendix 1040-43, 1053-54, 1058-59. 26 Plaintiffs' exhibits 32, 34, 36, 38, and 39, 4 Joint Appendix 1037, 1046-47, 1057, 1065, 1068 and 1070. 27 Testimony of Mr. Miller, Tr. 314, 499, 5 Joint Appendix 2063, 2247. 11 not disclose the reason.28 The defendant never produced at trial any explanation for its failure to hire any of the numerous highly-qualified black applicants discussed in open court.29 The defendant did not keep records showing the race of its employees,30 and did not keep records showing whether ad verse impact resulted from any personnel practice, procedure, or asserted qualification. The defendant filed a sworn Affidavit in the district court, in which its former Industrial Relations Manager stated that "it is virtually inconceivable" that the 180 or so officials involved in personnel decisions for the 1972-80 period and still employed by the company or its successor "could remember what input they had, or the reasons for, any particular employment decision."31 If so, it is even less conceivable that such offi cials would remember the bases for their personnel decisions for the earlier period at issue in this appeal. The district court found that plaintiffs had gone as far as it was possible to go in identifying the causes of the adverse impact against blacks in every aspect of the defendant's selection process,32 and the defendant's brief points to no way in which plaintiffs could have made a more detailed showing. 28 Testimony of Mr. Miller, Tr. 565, 5 Joint Appendix 2313. 29 See the discussion below at 18-19. 30 Finding 103, 1 Joint Appendix 47. 31 Affidavit of Tandy Fitts, 3 Joint Appendix 784 at Tab Y. 32 November 30, 1989 Order on Defendant's motion to Vacate Findings of Liability, 1 Joint Appendix 8-9. 12 (b) The Role of Qualifications in Personnel Decisions The company has never developed any standardized qualifications to use in selecting applicants to hire, hires to assign initially to specific job categories, or employees to promote.33 Hiring decisions are made by personnel officers who have "little knowledge of any specific qualifications for specif ic jobs, other than a general requirement that employees be able- bodied and genuinely interested in working."34 Departmental overseers are the officials with knowledge of specific job requirements, and have the power to accept or reject applicants. The company relies on them to ensure that applicants meet specif ic job qualifications.35 However, the Personnel Director testi fied without rebuttal that it was "very rare" for a departmental supervisor to reject an applicant,36 so virtually all hiring decisions were made without regard to any specific qualifica tions. The Personnel Director described the "general qualifi cations" taken into account in hiring as "general appearance, apparent intelligence, as you would judge from the interview, apparent interest in the job; of course, their background, 33 Finding 9, 1 Joint Appendix 24. The cited references in Finding 9 can be located in the Joint Appendix as follows: testimony of Mr. Miller, 5 Joint Appendix 2103, 2107, 2117-21. 34 Findings 8(b) and 9, 1 Joint Appendix 23-24. 35 Finding 10, 1 Joint Appendix 24. 36 Testimony of James B. Miller, Tr. 313 lines 5-13, Tr. 368 lines 5-8, and Tr. 505 line 4 to 508 line 2, 5 Joint Appendix 2062, 2117, and 2253-56. 13 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 76-1988 No. 76-2150 LUCY M . SLEDGE, et al. Plaintiffs-Appellees in No. 76-1988 Plaintiffs-Appellants in No. 76-2150 and TEXTILE WORKERS UNION OF AMERICA AFL-CIO, CLC, Plaintiff-Intervenor-Appellee in No. 76-1988 Plaintiff-Intervenor-Appellee in No. 76-2150 - v - J.P. STEVENS & COMPANY, INC., Defendant-Appellant in No. 76-1988 Defendant-Appellee in No. 76-2150 On Appeal from the United States District Court for the Eastern District of North Carolina BRIEF FOR PLAINTIFFS-APPELLEES IN No. 76-1988 AND FOR PLAINTIFFS-APPELLANTS IN No. 76-2150 Of Counsel: RICHARD B. SOBOL 910 - 17th Street, N.W. Washington, D.C. 20006 JACK GREENBERG 0. PETER SHERWOOD 10 Columbus Circle, Suite 2030 New York, New York 10019 JULIUS L. CHAMBERS 951 South Independence Boulevard Charlotte, North Carolina 28202 RICHARD T . SEYMOUR 316 Southern Building 19-25 H Street, N.W. Washington, D.C. 20005 T. T. CLAYTON Clayton & Ballance 307 W. Franklin Street Warrenton, North Carolina 27589 Counsel for Plaintiffs-Appellees in No. 76-1988 Counsel for Plaintiffs-Appellants in No. 76-2150 INDEX Page TABLE OF AUTHORITIES iv STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE 5 A. Statement of Proceedings 5 B. Statement of the Facts 8 1. Class Claims of Discrimination 8 (a) Findings as to Selection Practices 8 (b) Findings as to the Effects of these Practices 10 (1) Statistical Evidence on Hiring Claims 10 (2) Labor Force Data 13 (3) Statistical Evidence of Discrimination against Black Employees 18 (M) Differences in the Form and Intensity of Racial Discrimination against Black Females and of Racial Discrimination against Black Males 21 (5) The Defendant's State ments of Facts as to the Initial Assignment Claims 23 2. The Personal Claims of the Plaintiffs 2H (a) The Individual Claim of Plaintiff Sledge 25 (b) Claims as Class Members for Hiring Discrimination 29 (c) Claims as Class Members for Discrimination in Assignments 3LI a. ARGUMENT A. A Previously Certified Class Action Does Not Become Moot as to the Class Because of the Dismissal of the Personal Claims of the Class Representatives B. Statistical Evidence, Supported by Evidence of Facially Neutral Practices Which have a Dispro portionately Adverse Impact on Blacks, Are Sufficient to Establish a Prima Facie Case C. The District Court Did Not Err in Finding That the Defendant Discriminates in Hiring, or in Granting Relief from that Discrimination, Not withstanding the Defendant's Claim that it Already Employs Enough Blacks D. Where the Record Showed that Hundreds of White Supervisors Have the Power to Make Completely Subjective Personnel Decisions, that for Several Years They Had Made their Decisions on the Basis of Race, and that This has Continued for the Years Since the Trial, and Where the Defendant Was Unable to Propose any Alternative Form of Relief that Would Be Effective, the District Court Did Not Abuse its Discretion by Ordering Temporary Quotas 1. The District Court Had the Duty to Exercise its Discretion so as to Grant Complete Relief 2. The District Judge Exercised Great Care in Framing Relief 3. In an Appropriate Case, a Temporary Remedial Quota May Lawfully be Decreed R. Under the Facts of this Case, and the Defendant's Demonstrated Unwillingness or Inability to Control its Supervisors, and in Light of the Defendant's Inability to Propose any Effective Alternative, the District Court Did Not Abuse its Discretion by Ordering Temporary Quota Relief 5. The Defendant's Objections to the Form of the Quota Relief Entered Herein Are Without Merit Ml Page Ml M-3 M7 5M 5M 55 57 59 63 - ax E. The District Court Did Not Abuse Its Discretion With Respect to Any Other Part of the Decree 1. The District Court Was Not Required to Ignore the Differences between J. P. Stevens' Racial Discrimination Against Black Males and its Racial Discrimination Against Black Females 2. The District Court Did Not Abuse its Discretion by Adopting Some of the Defendant's Suggestions (a) Anti-White Bias (b) Training Requirements 3. The District Court Did Not Abuse Its Discretion by Entering Any Other Provision of the Decree (a) Red-Circling (b) Bumping Less Senior Employees in the Event of Layoff (c) Constructive Seniority Under Franks v. Bowman Trans porta- tion Co. (d) Other Provisions of the Decree F. The District Court Used an Incorrect Legal Standard in Determining Whether the Plaintiffs Had Established a Prim a Facie Case as to their Personal Claims 1. The District Court Erred by Failing to Consider the Statistical Evidence and the Evidence of Company Practices 2. The District Court Erred by Placing the Burden on Plaintiffs to Prove Specific Racial Motivation on the Part of the Defendant as to their Personal Claims 3. The District Court Erred by Placing the Burden on Plaintiffs to Prove their Specific Qualifications for the Defendant's Jobs - i.ii - G5 65 6 6 66 67 68 68 68 71 71 75 75 78 kage 80 Page G. When Tested by Proper Legal Standards, the Uneontroverted Evidence Establishes that Plaintiffs Have Proved Discrimination ' Against Them 81 CONCLUSION 83 Addenda la Civil Rights Attorneys’ Fees Awards Act of 1976, Pub.L. 94-559, 90 Stat. 2641 7a TABLE OF AUTHORITIES A. Cases Pages Afro-American Patrolmen’s League v. Duck, 503 F .2d 294 (6th Cir., 1974) 60 Albemarle Paper Co. v. Moody, M22 U.S. 405 (1975) 33,54 Ass’n of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970) 42 Barnett v. W.T. Grant Co., 518 F .2d 543 (4th Cir., 1975) 42 ,43,54, 60,64,76 Barrows v. Jackson, 3M6 U.S. 249 (1953) 42 Baxter v. Savannah Sugar Refining Corp., 495 F.2d M37 (5th Cir., 1974), cert, den., .419 U.S. 1033 (1974) 80 Boston Chapter, NAACP v. Beecher, 371 F.Supp. 507 (D.Mass., .1974), aff’d, 504 F .2d 1017 (1st Cir., 1974), cert, den., 421 U.S. 910 (1975) 49 Bradley v. School Bd. of City of Richmond, 416 U.S. 696 (1974) 75 Bradshaw v. Associated Transport, 12 F.E.P. Cases 859 (M.D.N.C., 1974) 78,83 Brown v. Gaston County Dyeing Machine Co., 457 F .2d 1377 (4th Cir., 1972) , cert, den., 409 U.S. 982 (1972) 41,43,46, 60,72 ,73, 78,79 Carter v. a.l .1 aglie r , 452 F .2d 327 (8th Cir., 1971) (en bane) , cert, den., 4 06 U.S. 950 (1972) 64 - 1 v - JL Cathey v. Johnson Motor Lines, '398 F.Supp. 1107 (W.D.N.C., 1974) Pages 78 Chambers v. Hendersonville City Bd. of Ed., 364 F .2d 189 (4th Cir., 1966) (eu bane) 79,81 Contractors' Ass'n of Eastern Pennsylvania v. Secretary of Labor, MM2 F.2d 159 (3rd Cir., 1971), cert, den., MOM U.S. 85M (1971) 58 Crockett v. Green, 388 F.Supp. 912 (E.D.Wis., 1975) M 9 Cypress v. Newport News General and Nonsectarian Hospital Ass'n., 375 F.2d 6M8 (4th Cir. , 1967) 60,79 Davis v. County of Los Angeles, F .2d , 13 F.E.P. Cases 1217 (9th Cir., 1976) 64,65 Davis v. Washington, 512 F.2d 956 (D.C.Cir., 1975) , rov'd on other issues, U.S. , s.ct. 5.1,52 Dickinson v. United States, 346 U.S. 389 (1953) 83 Doctor v. Seaboard Coast Line R.R. Co., 540 F .2d 699 (4th Cir., 1976) 42 East v. Romine, Inc., 518 F.2d 332 (5th Cir., 1975) SI English v. Seaboard Coast Line R.R. Co., 12 F.E.P. Cases 75 (S.D.Ga., 1975) 72 E.E.O.C. v. Elevator Constructors, Local 5 398 F.Supp. 1237 (E.D.Pa., 1975), aff'd, 538 F .2d 1012 (3rd Cir,, 1976) M 8,51 E.E.O.C. v. Elevator Constructors, Local 5 538 1.2d 1012 (3rd Cir., 1976) 58 E.E.O.C. v. Local 638, Sheet Metal Workers. 532 1.2d 821 (2nd Cir., 1976) 73,7M Erie Human Relations Coinrn'n v Tullio 493 F .2d 371 (3rd Cir., 1974) 62 Fairley v. Patterson. 493 r ?r 1 5Q» (5tli Cir., 197M) 75 Fowler v. Seliwar/.walder. 35.1 F Sunn 721 (D.Minn., 19/2) 49 Franklin v. J i ' o \ e 1 E1JV. co . , 501 F.2d 10'3 (6th Cir. , 1974) - v - ___ 82 Pages Pranks v. Bowman Transportation Co. 995 F .2d 398 (5th Cir., 1979), rev'd in part, 929 U.S. 79 7 (1976) 98,99,67 72 ,73 Franks v. Bowman Transportation Co., 929 U.S. 79T (1976) 91,71, 80,81 Gamble v. Birmingham Southern R.R. Co., 519 F .2d 678 (5th Cir., 1975) 63 ,7 0 Graniteville Co. (Sibley Div.) v. E.E.O.C., 938 F .2d 32 (9th Cir., 1971) 78 Gray v. Greyhound Lines-East, F.2d , 13 F.E.P. Cases 1901 (D.C.Cir., 1976) 92 Green v. County School Bd., 391 U.S. 930 (1968) 59 Hackett v. McGuire Bros., 995 F.2d 993 (3rd Cir. , 1971) 92 Hairston v. McLean Trucking Co., 520 F .2d 226 (9th Cir., 1975) 67 ,79 ,S0 Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1.187, aff'd sub nom Harper v. Kloster, 986 F.2d 1139 (9th Cir., 1973) 98,51,52 Hawkins v. North Carolina Dental Society, 355 F.2d 73.8 (9th Cir., 1966) 60 Hester v. Southern Ry. Co., 997 F .2d 1379 (5th Cir., 1979) 51,52 Hill v. Western Electric Co., F.Supp. , 12 F.E.P. Cases 1175 (E.D.Va., 1976) 51 Interstate Circuit v. United States, 306 U.S. 2 08 , 226 (1939) 82 Johnson v. Ryder Truck Lines, 12 F.E.P. Cases 895 (W.D.N.C., 1975) 78 Jones v. Lee Way Motor Freight, 931 F.2d 295 (10th Cir., 1970) 78 Jones v. Pitt County Bd. of Ed., 528 F .2d 919 (9th Cir., 1975) 79 Jones v. Tri-County Electric Cooperative, 512 F .2d 1 (5th Cir., 1975) 98 Kirkland v. Now York State Dept. of Correctional Sorvices, 520 F.2d 920 (Pnd dir., 1975), cert, den., U.S. , ‘15 U.S. Law Week 5299 (1976) 61,02 vx Pages Lea v. Cone Mills Corp., 4-38 F.2d 8G (4 th Cir., 1971) 83 Logan v. General Fireproofing Co., 521 F .2d 881 (4th Cir., 1971) 50,52 Louisiana v. United States, 380 U.S. 145 (1905) 54 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (197 3) 78,79,81 Mims v. Wilson, 514 F.2d 106 (5th Cir., 1975) 48,73 Morrow v. Crisler, 4-91 F.2d 1053 (5th Cir., 1974) (en bane) , cert, den., 419 U.S. 895 (1974) 4 S,51, 58,62 Moss v. Lane Co., 471 F.2d 853 (4th Cir., 1973) 41 Muller v. United States Steel Corp., 509 F .2d 923 (10th Cir., 1975) 78 NAACP v. Allen, 493 F.2d 614, (5th Cir., 1974) 48,51,54, 58,6.1,62 North Carolina Teachers' Ass'n v. Asheboro City Bd. of Ed., 393 F.2d 73G (4th Cir., .1968) (en banc) 79 O'Shea v . Littleton, 4.14 U.S. 488 (1974) 42 Parham v. Southwestern Bell Telephone Co., 433 F .2d 421 (8th Cir., 1970) 78 Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir., 197 6) , cert, den., U.S. , 45 U.S. Law Week 3330 (1976) 46,57,58, 59 ,61,67 , 70,73,82 Patterson v. Newspaper & Mail Del. Union of N.Y. & Vic., 384 F.Supp. 585 (S.D.N.Y., 1974) 74 Payne v. Travenol Laboratories, 416 F.Supp. 248 (N.D.Miss., 1976) 4 9 Peters v. Jefferson Chemical Co., 516 F .2d 447 (5th Cir., 1975) 78 Pettway v. American Cast Iron Pipe Co., 494 F .2d 211 (5th Cir., 1974) 60,68,73 Quarles v. Philip Morris, 279 F.Supp. 505 (U.D.Va., 1968) 64 Reed v. Arlington Hotel Co., 476 F .2d 721 (8th Cir., 1973), cert, den., 414 U.S. 854 (1973) 72 VXZ Rios v. Enterprise Ass ’ n Sleamflttcrs Local 038 of U.A. , 501 I-.2d 022 (2nd Cir., 197M) Pages r Robinson v. Lorillard Coop., MMM F .2d 791 (Mth Cir"., 1971) Robinson v. Union Carbide Co., 538 F .2d 052 (5th Cir., 1976) Rook v. Norfolk & Western Ry. Co., 973 F .2d 13MR (Mth Cir., 1973) Rodriguez v. East Texas Motor Freight, 505 F .2d M0 (5th Cir., 197M) , cert, granted, U .S. , MR U.S. Law Week 3670 (1976) Rogers v. Int'l Paper Co., 510 F .2d 13M0 (8th Cir., 1975) , vacated with respect to the denial of back pay, M2 3 U.S. 809 (1975) Rowe v. General Motors Corp. , M57 F .2d 3MS (5th Cir., 1972) Russell v. American Tobacco Co., 528 F .2d 357 (Mth Cir., 1976) , cert, den., U.S. , MM U.S. Law Week 3593 (1976) Schlcsinger v. Reservists to Stop the War, M18 U.S. 208 (197M) Senter v. General Motors Corp., 532 F .2d 511 (6th Cir., 1976) Sims v. Sheet Metal Workers' Int'l AssTn, Local No. 65, M89 F .2d 1023 (6th Cir., 1973) Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966) Swint v. Pullman-Standard Co., 539 F .2d 77 (5th Cir., 1976) Trafficante v. Metropolitan Life Insurance Co., M09 U.S. 205 (1972) United States v. Allegheny-Ludlum Industries, 517 F .2d 826 (5th Cir., 1975) , cert. den., U.S. , MM U.S. Law Week 3593 (1976) United States v. Hethlchem Steel Corp, , MM6 F.2d 652 (2nd Cir., 197l) 65 68 51 55,63,70 81 68 60 67 ,7M M2 60 60 78 M5,50,51, 5M ,66,68, 70 ,73,7M M2 72 60,68 VI11 United States v. Chesapeake & Ohio Ry. Co., 471 F.2d 582 (9th Cir., 1972) , cert. den. , Mil U.S. 939 (1973) Fa^cs 471 F .2d 582 (9th Cir., 1972), cert, den., Mil U.S. 939 (1973) 57,6M ,65 66 ,79 United States v. Dillon Supply Co., M29 F .2d 800 (9th Cir., 197 0) 78 United States v. Fast Texas Motor Freight, 10 F.E.P. Cases 971 79 United States v. Hayes Int’l Corp. 956 F .2d 112 (5th Cir., 1972) 69 United States v. Hazelwood School District, 539 F .2d 805 (8th Cir., 1976) 60,81 United States v. Ironworkers Local 86, 993 F .2d 599 (9th Cir., 1971), cert, den., MOM- U.S. 98M (1971) 58 United States v. Jacksonville Terminal Co., 951 F .2d 918 (5th Cir., 1971) , cert, den., 906 U.S. 906 (1972) 46,73,79 United States v. Local Union 212, I.B.E.W., 972 F .2d 639 (6th Cir., 1973) 58 United States v. Montgomery County Bd. of Ed., 395 U.S. 225 (1969) 65 United States v. N.L. Industries, 979 F .2d 359 (8th Cir., 1973) 60,68 United States v. St. Louis-San Francisco Ry. Co., 969 F .2d 301 (8th Cir., 1972), cert, den., M09 U.S. 1107, 1116 (1973) 67 United States v. Sheet Metal Workers, Local 10, 6 F.E.P. Cases 1036 (D.N.J., 1973) 67 United States v. T.I.M.E,-D.C., 517 F .2d 299 (5th Cir., 1975), cert. granted, U.S. , 49 U.S. Law Week 3669 (1976) 69,72, 79,81 United Transportation Union and Rock v. Norfolk & Western Ry., 532 F.2d 336 (Mtli Cir., 1975) , cert, den., U.S. , 99 U.S. Law Week 3592 (1976) 71,80,81 Wade v. Mississippi Cooperative Extension Service, 528 F .2d 508 (5th Cir., 1976) 6 0 Wall v. Stanly County Bd. of Ed., 378 l'.2d 275 (Mth Cir., 1967) (on banc) 79 Ward v. Appricc, 6 Mod. 269 (1705) 82 X X Worth v. Seldlru 422 U.S. 490 (1976) 42 Pages Watkins v. Scott Paper Co., 530 F .2d 1159 (5th Cir., 1976) , cert, den., U.S. , 45 U.S. Law Week 3253 (1976) 46,55,68, 71,73 B. Statutes and Constitutional Provisions Constitution, Article III 42 42 U.S.C. §1981 1, 75 Civil Ri.ghts Attorneys’ Fees Awards Act of 1976 , Pub.L. 94-559, 90 Stat. 2641 75 Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103 58 Title VII, Civil Rights Act of 1964, 42 U.S.C. §§2000e et seĉ . passim C. Other Authorities 118 Cong. Rce. 58 122 Cong. Rec. 75 Note, "Employment Discrimination and Title VII of the Civil Rights Act of 1964" , 84 Harv.L.Rev. 1109 (1971) . 50 U.S. Bureau of the Census, Bureau of Labor Statistics, Jobseeking Methods Used by American Workers (1975) 16 x IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 76-19S8 No. 76-2150 LUCY M. SLEDGE, et aL, Plaintiffs-Appellees in No. 76-1988 Plaintiffs-Appellants in No. 76-2150 and TEXTILE WORKERS UNION OF AMERICA, AI'L-CIO, CLC , Plaintiff-Intervenor-Appellee in No. 76-1988 Plaintiff-Intervenor-Appellee in No. 76-2150 - v - J. P. STEVENS & COMPANY, INC., Defendant-Appellant in No. 76-1988 Defendant-Appellee in No. 76-2150 On Appeal from the United States District Court for the Eastern District of North Carolina BRIEr FOR PLAINTI IT S-A PPE LLEES IN No. 76-19S8 AND FOR PLAINTIFFS-APPELLANTS IN No. 76-2150 STATEMENT OF THE ISSUES A number of questions are presented for review in these consoli dated appeals: 1. Does an action previously certified as a class action become moot as to the class because of the ultimate dismissal of the personal claims of the class representatives? 2. Is uncontested statistical evidence, coupled with uncontested evidence of the defendant's use of departmental seniority and of its effect on blacks, the defendant's reliance on primarily subjective cri teria in deciding whom to hire or to promote, and the defendant's failure to post notices of job vacancies, sufficient to establish a prima facie case of racial discrimination against a class? 3. Was the district court clearly erroneous in deciding to credit the testimony of Ur. Sheldon Haber, plaintiffs' expert witness, with respect to the propriety of using workforce statistics as a standard for determining whether an employer has discriminated in hiring? L! . Where the district court found that the defendant had had a longstanding practice of discriminating against black applicants for em ployment, and where the record was supplemented in February 1976 to show that the defendant had continued this practice from the time of trial to the end of 1975, did the district court abuse its discretion by entering a Decree prohibiting such discrimination, notwithstanding the defendant's contention that it was already employing enough blacks? 5. The district court found that the defendant left hiring, initial assignment and promotional decisions to a virtually all-white group of hundreds of supervisors, that the defendant gave them no objec tive standards to follow in making these decisions, that for a long time these supervisors had been making their decisions on the basis of race, and that the defendant had done nothing to prevent them from exercising their discretion along racial lines. The Record was supplemented to show information for the three years following the trial, and it showed three years' post-trial continuation of the sane racial exercise of supervisory discretion. The district court requested the defendant to propose a form of relief, short of a quota, which would effectively end these practices. The defendant did not do so. Under these facts and circumstances, was it 2 an abuse of the district court’s discretion to order temporary quota relief? 6. Where the district court found that the defendant discriminated against black males on the basis of their race, and where it found that the defendant discriminated against black females on the basis of their race, but where it found that the manner of the defendant's racial dis crimination was different for black males than it was for black females, did it abuse its discretion by taking this difference into account in shaping its Decree? 7. Did the district court abuse its discretion by including within its Decree provisions for red-circling, provisions to implement the de cision of the Supreme Court of the United States in Franks v. Bowman Transportation Co., 424 U.S. 747 (197G) , provisions (such as the manner in which the Franks provisions worked) to which the defendant made no objec tion below, provisions (such as the training program) which the defendant had proposed below, provisions (such as the limitation of the effect of some seniority changes to blacks) on which the defendant had insisted be low, or any other provisions? 8. in determining the personal claims of the named plaintiffs, did the district court err by failing to consider the evidence, and its own findings, with respect to the class claims? 9. In determining the personal claims of the named plaintiffs, did the district court err by placing the burden of proof on the named plain tiffs to prove specific racially discriminatory intent as to their personal claims, and by placing the burden of proof on them to prove their specific qualifications for the defendant’s jobs, in the absence of any allowing by the defendant that there were in fact such specific qualifications? 10. Did the plaintiffs in this action establish a prima facie case of discrimination against them by proving that the defendant has 3 discriminated against the class in specific ways, and that they have been affected by this discrimination in exactly the same manner as other class members? 11. Did plaintiff Sledge establish a prima facie individual case of discrimination against her by proving that following her layoff she had recall rights to the Terry Inspector job from which she had been laid off, that her work record before the layoff had been exemplary, that she was not required to, but did, apply for re-employment with the defendant several times during her layoff, that during the period of her layoff the defendant violated its own policies by hiring four white women for this job, that all Inspector jobs were largely reserved for whites at the time, that the defendant never recalled her or tried to recall her, and that the defendant has no explanation for its failure to recall her? 12. If either of the questions 10 or 11 is answered in the nega tive, did the district court err by restricting plaintiffs’ discovery in such a way as to affect the outcome of these determinations? 13. May the prima facie claims of discrimination against plain tiffs Sledge and Hawkins be defeated by speculative inferences, totally unsupported by the record, that plaintiff Sledge was unavailable for work during the period in which the defendant is contended to have discrimi nated against her, and that plaintiff Hawkins had applied for employment- in bad faith, without any real interest in obtaining it? 1H. As cm alternative to the last question, when a prima facie claim lias otherwise been made out and neither the defendant nor the Court had ever indicated that availability for work or good faith was at issue, may the claims of these plaintiffs be finally dismissed without affording them an opportunity for an evidentiary hearing at which they can disprove the inferences of unavailability and of bad faith? >1 STATEMENT OF THE CASE A . Statement of Proceedings This case was filed on October 2, .1970 as an across-the-board class action under Title VII of the Civil Rights Act of 19OR, 42 1J.S.C. §§2000e et seq., and under M2 U,S.C. §1981. it challenged racial dis crimination in employment at eight plants and three office facilities 1/ of the defendant in Roanoke Rapids, North Carolina. (JA 12). Approx imately 4,000 employees worked in these plants and offices at the time of trial. (Defendant's exhibit 1, JA-Exh. 147, and Finding 87, JA 303). There were extensive discovery disputes between the parties, and the Court ultimately allowed restricted discovery to proceed. (JA 2 04- 06, JA 253-55, and SJA 21) . Plaintiffs had requested full access to the personnel files of present and of former employees, and had filed inter rogatories seeking relevant information as to present and former employ ees. (Plaintiffs' Third Interrogatories 9 and 10, JA 1.85-88; plaintiffs' Second Request for Production, items 12 and 14, JA .199; plaintiffs' Re quest for Inspection and Copying, SJA 1). Following motions to compel discovery and hearings thereon, plaintiffs filed a Further Motion to Compel Discovery on August 28, 1972. (JA 239). The district court on September 29, 1972 denied the Further Motion insofar as it related to these interrogatories and items, and denied plaintiffs' motion to require the defendant to race-identify former employees. (JA 254-55). T7 By order of this Court entered on November 19, 1976, the Joint Appendix in No. 76-1988, another appeal involving the same parties, is to be used as the Joint Appendix in this appeal. References to "JA” are to this Joint Appendix, and references to "JA-Exh." arc to the Ex hibit volume of the Joint Appendix in No. 76-1988. References to "SJA" are to the Supplementary Joint Appendix in both appeals. Please note tliat plaintiffs' exhibit 101 is not the document appearing at pp. 38 to 144 of the Exhibit volume, but appeal's at SJA 35-147. _ S _ Plaintiffs requested reconsideration and set forth the prejudice that would ensue if it were denied (SJA 3) but the district court allowed the request only insofar as it pertained to the inspection of the appli cation forms of then-current female employees hired on or after October 2, 1967 and the personnel information forms of then-current em ployees. (SJA 21) . The case was fully tried on liability from November G-10, 1972, briefed, and finally argued on February 23, 1973. On December 22, 1975, the district court entered its Findings of Fact and Conclusions of Law. (JA 276). The district court held that plaintiffs had shown classwide racial discrimination with respect to hiring, initial assignment, pro motions, layoffs, recalls, the use of departmental seniority, the racial reservation of certain jobs for whites and others for blacks, the defen dant's reliance on uncontrolled supervisory discretion, the defendant's failure to establish objective criteria for hiring, promotion and trans fer, the defendant's failure to post notices of job vacancies, and the defendant’s imposing on black females a .longer waiting period before hire than it imposes on white females. (Conclusion 8, JA 333-35). The dis trict court also held, however, that the defendant had not discriminated against any of the plaintiffs, (Conclusion 5, JA 331), and dismissed all of their personal claims of discrimination. (JA 275). The district court directed counsel to confer with respect to the form of Decree to be entered, (JA 338) , and several meetings were subse quently hold for this purpose between counsel for plaintiffs and counsel for the defendant. Counsel for plaintiffs also met or conferred several times with counsel for the Textile Workers’ Union of America, which repre sented the defendant’s production and maintenance employees in Roanoke Rapids. The union moved for leave to intervene as a plaintiff "for the limited purpose of assisting this Court in fashioning and effectuating a 6 suitable remedial decree", (JA 399) , and the motion was granted. (R. 707). The parties were unable to agree on the form of a remedial decree, and plaintiffs (JA 359) and the defendant (JA 392) each submitted pro posed Decrees to the Court on February 29, 1976. The defendant’s pro posed Decree did not specifically remedy several of the discriminatory practices described in Conclusion 8 of the district court's Conclusions of Law (JA 333-35), including Conclusion 8(a) (reliance on subjective decisions of white supervisors), 8(b) (failure to establish objective guidelines for selection), 8(f) (reservation of low-paying Warehouseman job for blacks) , 8(g) (black males are assigned to much lower-paying 2/ jobs generally), 8 (j) (discrimination against black females in their original job assignments), 8 (k) (discrimination in layoffs and recalls), or 8 (1) (imposition on black females of longer waiting period before hire than is imposed on white females) . The union essentially supported plaintiffs' proposed Decree. The district court heard argument as to the form of Decree to be entered, and received documentary evidence to update the Record. (Plaintiffs' exhibits .133 and 139; Record Volume XVIII; R.70G) . At this hearing, the district court directed the defendant to file a paragraph-by paragraph statement of its objections to the various provisions of 3/ plaintiffs' proposed Decree. The defendant complied (R.720) and plaintiffs and the union responded (R.79-5, 7 55). An evidentiary hearing with respect to the proposed Decree was held on May 9, 1976, and both -------77 With respect to Weaver and mechanical jobs, the defendant did propose a training program. (JA 393-99) . 3/ The court reporter lias not yet completed the transcript of this hearing on February 29 , 1976. It lias been requested numerous times by the parties. 7 documentary and expert evidence was received. The defendant filed several post-argument memoranda with respect to the proposed Decree, and plaintiffs and the union responded to them. On June 25, 1970, the district court entered its Decree. (JA 489). On April 22, 1976, plaintiffs had requested reconsideration of the district court's holding of, and dismissal as to, the? named plain tiffs' personal claims. (SJA 23). This request was denied in an Order entered on September 10, 1976. (JA 530). On September 25, 1976, the district court entered a certificate under Rule 54(b) of the Federal Rules of Civil Procedure, (JA 53.1a), and on October 1, 1976 the Clerk entered judgment against plaintiffs with respect to their personal claims. (JA 531b). The eight plaintiffs who testified at the trial then took this appeal. (Supplement 2 to Record, at 45). B. Statement of the Facts 1. Class Claims of Discrimination (a) Findings as to Selection Procedures The district court found the following facts as to the defen dant’s practices in the selection of applicants to hire and employees to assign to jobs or to promote: The defendant has many more applicants than it can hire (Findings 25-28; JA 298-99) , and of course lias at any given time many more employees than it can then promote. All hiring and promotional decisions are based upon the subjective opinions of an all-white group of personnel officials and supervisors. (Findings 9, 11, 17, 18; JA 299-96). There are no objective qualifications or stan dards for hire or for promotion. (Findings 9, 11; JA 29*1-95). Most hires are inexperienced and have to be trained for the jobs on which they are placed (Appendix I to Findings of Fact, Adopted Findings 27 , 31, 59; JA 340-41, 396). Level of education is not very important for 8 most jobs (Adopted Finding 29; JA 390). The defendant’s Personnel Director testified, and the district court found, "that most of the job categories in these plants can be filled by any willing, able-bodied person." (Adopted Finding 26; JA 3M0) . The company makes no effort to hire the "most qualified" applicant, (Adopted Finding 35; JA 391) , and allows its supervisors to fill vacancies in identical jobs by using their differing subjective opinions about the importance of various criteria. (Adopted Findings 97, 98; JA 395-96). There is no posting of job vacancies, and there is no job bid ding system. (Findings 15, 16; JA 295-96). In filling vacancies by promotion, the company makes no effort to find and promote the best qualified employee; it ordinarily ignores all employees in other depart ments. (Findings 13, 19; JA 295). Most of this evidence was adduced in the testimony of company officials and was undisputed. The district court then made the following findings: 20. Decisions in hiring and in promotion are based primarily on the subjective opinions of personnel offi cials and of departmental overseers. 21. Stevens' policy of heavy reliance upon sub jective considerations in hiring and promotion, and its policy of relying exclusively upon an informal "grape vine" network among departmental overseers in making interdepartment promotions, in effect gives the officials making these decisions the power to discriminate. This finding is strengthened by the fact that all officials making these decisions are white, and all such officials have always been white. 22. Stevens has never adopted any systematic means of preventing these officials from using their powers so as to discriminate, and its only evidence that they do not in fact use their powers in such a fashion is the subjective feeling of company officials that the officials making personnel decisions would never do such a thing. 23. Decisions to promote are made by departmental overseers without the aid of ony company standards. Over seers have the power to impose any criteria they wish, and different overseers may apply different criteria in filling vacancies to the same job categories in theii dif ferent departments. 9 24. In summary, the defendant's procedures for hiring and promotion not only afford opportunities for discrimination but in many instances are conducive to discrimination. (JA 297) . (b) Findings as to the Effects of These Practices (1) Statistical Evidence on Hiring Claims With respect to applicants, the district court found the foi lowing facts based on company records for the period of time for which they were available • Percent of Applicants Who Were Successful in Getting Jobs Period White Black White Black of Time Hales Males Females Females 5/69-12/31/69 86% 61% 54% 25% 1970 92% 54% 56% 33% 1971 75% 42% 56% 20% 1/1/72-6/30/72 60% 30% 49% 18% (Findings 25-28; JA 298-99) . For the entire period May 1969 through June 30, 1972, the figures were: White Black White Black Males Males Females Females Applicants 1,237 1,968 1,260 1,9.18 Hires 932 874 684 ' 442 % Hired 75.3% 44.4% 54'. 3% 2 3.0% led The company did not, either at the trial or in the evidentiary hearings held to frame the Decree, offer any explanation for these dif ferences. (Finding 29; JA 300). After the entry of decision, the record was supplemented. Plaintiffs' exhibit .133 is a collection of company documents showing data about applicants, hires and initial assignments for the period from 10 January 1, 1972 through December 31, 1975. When added together, they show the following information with respect to the years 1972-1975, the years involved in the company's "50- 50 hiring" claim (defendant's brief at 16) : Number of Applicants No. of Hires Percent of Applicants Successful in Getting Jobs Other Comparisons White Males 1,889 1,529 81% — Black Males 3,595 1,576 99% — % of Appli cants Who Were Black: 66% % of Hires Who Were Black: — — -- 29% * * * White Females 1,669 1,022 61% — Black Females 3,652 973 27% — % of Appli cants Who Were Black: 69% % of Hires Who Were Black: 99% Again, the company offered no explanation for these differences. There is no evidence that the number of applicants includes any duplicate applications -- i ,e., subsequent applications filed by persons who already have an active application pending. The dates of subsequent visits to the personnel office are recorded on the original application form if the original form is still active. Q'..g . , JA 869; plaintiffs' exhibit 96). At trial, plaintiffs' exhibits 65, 66, 69, 72, 77, 78, SI and 83 listed the name, address, Social Security number, month and year of first application for over 1,800 applicants 18 years old and older, 11 all who could at that time be race-identified. The proportion of these listed individual applicants who were black is generally higher than- the proportions obtained from the applicant-flow figures stated in Findings 26-28 (JA 298-99) . Period of Time 1970 1971 1972 (part) Percent of Male Appli cants Who Were Black Percent of Female Appli cants Who Were Black Lists of Applicant-flow Lists of Applicant-flow Applicants from Findings Applicants from Findings 71.0% 70.3% 69.3% 58.7% 60.3% 65.1% 61.4% 61.8% 66.7% 55.5% 60.7% 69.0% Plaintiffs’ exhibit 141 (SJA 148), introduced in evidence at the May 4, 1976 hearing (JA 1611-12) is a collection of documents compiled by the North Carolina Employment Security Commission for Halifax and Northampton Counties, North Carolina. The parties have stipulated that this is the defendant's labor market area. (JA 1544, 1612). This ex hibit shows that there were 3,426 separate job applicants in these two counties who had current applications for employment referrals with the North Carolina Employment Security Commission as of January 1976, and that 2,208 of them -- 64.4% of the total -- were black. The proportion of blacks among the defendant's employees was 15.9% in 1967, 17.4% in 1968, 17.4% in 1969 as well, 19.4% in 1970 when the Complaint was filed, 23.7% in 1971, and 33.7% in 1972 when the case was tried. (Defendant's Exhibit 1, JA Exh. 147). Plaintiffs' exhibit 139, introduced in evidence at the February 24, 1976 hearing, (R.706) , is a group of EEO-1 forms which shows that the proportion of blacks among the defendant's employees was 36.9% on March 30, 1974 and declined to 34.2% on January 11, 1975. These figures exclude over a hundred em ployees of two of the defendant's clerical facilities, the Customer Service Office and the Information Services Center, 99.of whom were 12 white. (Finding 33, ,TA 302). Including them in the figures would reduce the percentage of blacks. The defendant's exhibit 9(e), (JA-Exh. 2 00), as explained by the Affidavit of Tandy Fitts, (JA-Exh. 203) , excludes all sal aried positions, held almost exclusively by whites, and shows that MO.8% of the defendant's remaining employees were black as of December 1975. There is no direct evidence to show the proportion of blacks among the de fendant's employees at the Roanoke Rapids facilities involved in this ease as of December 1975. Plaintiffs' exhibit .134 shows that there were 217 of ficials and managers, 3 of whom were black, as of January 11 of the same year. Adding these and the 1972 figures for the Customer Service Office .and Information Services Center, the best available estimate is that 37.1% of the defendant's employees were black in December 1975. Cf. defendant's brief at 17. (2) Labor Force Data The civilian labor force in Halifax and Northampton Counties consisted of 28,900 persons in 1979. (Plaintiffs' exhibit 141, table 20; defendant's exhibit 7, JA-Exh. .180). The defendant had 4,000 employees at that time, in cluding the two facilities not reflected in the EEO-1 forms, (plaintiffs'ex hibit 134) ,• and thus employed 13.8% of the civilian labor force, roughly one out of every seven persons in the labor force. It employs 80.9% of the lo cal textile labor force. (JA .1629) . The total civilian labor force in these counties, including the defendant's employees, was M0.6% black in 197M. At the May 4, 1976 hearing, plaintiffs introduced the testimony of Sheldon Haber, Ph.D., who was qualified as a labor economist and testified as to the appropriate standard -- applicant-flow or labor force data -- for determining the labor pool available to an employer, and thus whether it lias discriminated in hiring. Generally, lie testified, applicant-flow data provide a fairer and more accurate measure of the labor pool available to an employer than is 13 provided by labor force data. It would not be appropriate to use appli cant flow data where the employer has discriminated so much against persons of a particular race or sex that it has discouraged them from applying. (JA 1606-07). Sudden surges in the number of applicants of one race, while the number of applicants of the other race remains substantially the same, are probably due to local short-term changes in the labor market. The 1072 surge in the number of black applicants and the 1975 surge in the 4 / number of white applicants do not in themselves mean that any outside groups were artificially generating black applications in one year and 5/ white applications in the other. In any event, an employer which is required to hire blacks, or to offer to hire them, in the ratio in which they apply is not harmed by either black or white surges as long as the applicants are qualified and willing to work for the employer. (JA 1607- 09, 1635-39, 1642-43). The main problem with the use of labor force figures is that they do not accurately reflect the persons who are available to fill the 47 From 1971 to 1972, the number of black applicants rose from 1,395 (Finding 27; JA 299) to 2,292 (plaintiffs' exhibit 133), an increase of 70.4%, while the number of white applicants declined from 880 to 759, a decrease of 19.3%. From 1974 to 1975, the number of black applicants re mained identical, but the number of white applicants rose from 683 to 991, an increase of 9 5.1%. (Plaintiffs' exhibit 133) . both the black increase and the white increase were outside the time included within the trial record, so neither affected the district court's findings. 5/ There is no evidence of such efforts, and there is no evidence that either surge included any persons who were either unqualified for employment with the company, or who were in bad faith, i . e . , applied with out any interest in working for the defendant. To the contrary, the per centage of black applicants who were hired went up from 1971 (41.9:% of black male applicants hired, and 20.3% of black female applicants hired; Finding 27, JA 299) to 1972 (96.9% of black male applicants hired, and 30.0% of black female applicants hired; plaintiffs' exhibit 133), rather than down as would be expected if such a manipulation had taken place. 19 particular jobs the employer lias to offer, at its pay rates. These figures are too abstract for this purpose. Only applicant-flow data provide this information. (JA 162 5-26) . He testified that there are other serious problems with the use of labor-force figures in this case. First, he testified that a sub stantial part of the local labor-force figures are made up of persons such as professionals, who arc unlikely to be interested in textile jobs, (JA 1614-16), and this group is disproportionately made up of whites. It is not appropriate to include them in labor-force figures as if they were available for textile jobs. (JA 1615). Plaintiffs' exhibit 141, table 3A for each county, (SJA 152, 159) , shows that the employed part of the local labor force was 27,080 persons. This in cludes 5,370 persons -- .19.8% of the entire labor force -- who arc engineers, medical and health service professionals or technicians, 6/ teachers, other professionals, nonfarm managers and administrators and sales workers. Only 840 blacks, 15.6% of the total, are included within these 5,370 persons. By subtracting these persons from the totals, the proportion of blacks in the employed part of the local, labor force becomes 44.7%. (Plaintiffs' exhibit 141; JA 16.17) . No comparable breakdown of the unemployed part of the local .labor force is possible , but the problem of the inclusion of a disproportionately-white group, sub stantial in size, who are unlikely to be interested in employment with the defendant is likely to occur with respect to them as well. (JA 1617- 18) . The only correction that can be made is with respect to the 5,370 already-employed persons. Subtracting them from the local labor force of ------------ TT7 Managerial jobs arc at issue in this case, but the defendant generally trains and promotes its managers from within, rather than hiring them from "Nonfarm Managers and Administrators" who show up at its Central Personnel Office. 15 28,900 persons results in a corrected figure of 23,530 persons, of whom 10,890 persons -- 96.3% -- are black. (Plaintiffs' exhibit 181). Second, lie testified that the local labor-force figures are com posed of both the employed (90.7% of the total) and the unemployed (5.3% of the total) , but persons who are already employed are much less likely to be interested in obtaining jobs with the defendant. A nationwide study by the U.S. Census Bureau, Jobseeking Methods Used By American Workers , stated that only a quarter of jobseekers were employed at the time they sought other jobs. Another quarter had had jobs recently, and he testi fied that it was fair to consider the recently-employed as having the 7/ characteristics of the employed. Statistics compiled by the North Carolina Employment Security Commission, introduced in evidence as part of plaintiffs' exhibit 181, showed that approximately 95% of the indi vidual jobseekers applying for employment referrals at the Commission's Roanoke Rapids branch office had no full-time job, part-time job, or job attachment (layoff status, etc.). (JA 1618-23). The employed portion of the labor force is 3S.9% black, corrected to 00.7% black because of the first problem addressed, and the unemployed portion of the labor force is 66.7% black. (JA 1617, 1622; plaintiffs' exhibit 101). Reweighting the labor force statistics to account for the difference between the availability for hire of already-employed persons and the availability for hire of unemployed persons produces a labor force 55.7% black accord ing to the nationwide Census Bureau data, and 65.6% black according to the local North Carolina Employment Security Commission data. Third, the 1970 Census disproportionately undercounted blacks, by a range of from 2% to 5%. This affects the labor force statistics, and This assumption favors the defendant, since the proportion of blacks among the already-employed is much less than the proportion of blacks among the unemployed. 16 requires that the percentage of blacks be adjusted upward by that amount. (JA 1624) . Taking these problems into account produces labor force statistics which more closely approximate the labor pool available for hire by the defendant: Available Labor Pool for Halifax and Northampton Counties Original: Percent Black Employed (94.7% weight) 38.9% Unemployed (5.3% weight) 66.7% Labor Force (reflecting this weighting) * * * Corrected: Employed, excluding professionals, nonfarm managers and administrators and persons in sales 40.6% +2% to 5% for undercount 44.7% Unemployed (no comparable adjustment possible) 66.7% Labor Force, weighted 50-50 between employed and unemployed persons (source: U.S. Bureau of Census, Jobseeking Methods Used by Ameri can Workers) 55.7% +2% to 5% for undercount Labor Force, weighted 5% for employed persons and 95% for unemployed persons (source: plaintiffs' exhibit 191, N.C. Employment Security Commission statistics on persons seeking work) 6 5.6%. +2% to 5% for undercount Even with these refinements, however, Dr. Haber testified that the resulting figures are a less accurate reflection of the persons available for hire than are the applicant-flow figures. (JA 1625-26). Dr. Haber testified that courts and government agencies "sometimes" rely on labor force figures for EEO purposes, but that the reason for some such uses "is that the complications are not really appreciated or understood fully", that the data was originally collected by the Census Bureau for other 17 purposes, and that "[t]here is this temptation, if you will, to use pub- 8/ lished data simply because they are published. White employees generally work for shorter periods of time than black employees. Only 95.5% of the white hires from January 1, 1970 to September 30, 1972 were still working on October 1, 1970, but 56.5% of the black hires were still working on this date. For females alone, the difference was twice as large: only 93.7% of the white female hires, but 68.0% of the black female hires, during this period were still working at 9/ its end. The greater rate of white terminations thus inflates the pro portion of blacks among the defendant's employees beyond the proportion that would occur from its hiring practices in isolation. (3) Statistical Evidence of Discrimination against Black Employees With respect to employees, the district court found the following facts based on company payroll and personnel records: At the time of trial, the average black male with twelve years' seniority made less than the average white male with one year's seniority (Finding 62; JA 310-11); the average white male without any previous work experience made over twenty cents an hour more than the average black male with previous tex tile experience (Finding 63; JA 3.11); the average white male with a 3rd- grade education made 19/ an hour more than the average black high school 10/ graduate (Finding 67; JA 313-19) . The company had reserved clerical, 8/ Cf. the defendant's treatment of this testimony in its brief at 91. 9/ The number of hires was taken from Findings 26-28 (JA 298-99) for the period from January 1, 1970 to June 30, 1972, and from plaintiffs' ex hibit 133 for the period July 1 to September 30, 1972. The number of such employees still working for the defendant on October 1, 1972 is taken from plaintiffs' exhibit 59 (Record Volume XI). 10/ The defendant's black employees are better educated than its white employees. (Findings 66 and 7 0(d); JA 313, 317) . These statistics are all for hourly employees. 18 supervisory, weaver and fixer jobs for whites, and the low-paid job of warehouseman for blacks. (Findings 32-59; JA 30.1-09). The company as signed black males to its lowest-paid departments, and penalized them with loss of seniority if they transferred to higher-paying departments. (Findings 71-76; JA 317-19). A much higher percentage of white female em ployees than of black female employees had jobs at the top of the defen dant's pay scale, and this was true even when education and previous ex perience were equalized. (Findings 78-81, JA 320-22). White females who were hired in 1972 had to wait an average of 99 days from their applica tion to the date of hire; the company made black women wait an average of 89 days (Findings 89-90; JA 326). The post-trial supplementation of the record indicates that the de fendant's practices are having the same effect now that they did at the time of trial. The defendant's own exhibit 9(c) , (JA-Exh. 200) , while it excludes the predominantly-white salaried jobs, (JA-Exh. 203; plaintiffs' exhibit 139) , nevertheless shows that the average hourly pay rate for the whites in December 1975 who were included in the exhibit was $3.93 an hour. U / For blacks, the average was $3.21 an hour. On October 1, 1972, the white average had been $2.56 an hour and the black average had been $2.37 an hour. (Calculation from plaintiffs' exhibit 29, Record Volume XI). The racial gap in average hourly pay rates lias thus widened even after the more highly paid whites are deleted from the figures for both periods. The defendant's EEO-1 forms for January 11, 1975 for all facilities but the Customer Service Office and the Information Services Center (plain tiffs' exhibit 139) -- for which it provided no information -- also show u y These figures arc obtained by dividing the aggregate hourly pay for each race by the number of employees of that race. 19 that little substantial change has been made, compared with the March 9, 1972 EEO-1 forms introduced at trial (plaintiffs' exhibits 89 and 90 (table 2 (a)) ; Record Volume XVI) : dob Categories 1972 1975 Number of Employees Number of Blacks Number of Percent Employees Black Officers & Managers 208 0 217 3 Professionals 15 0 28 0 Technicians 18 0 21 0 Sales Workers 0 0 0 0 Office & Clerical 212 3 226 7 Craftsman (Skilled) 981 33 592 75 Operatives (Semi-skilled) 2,252 662 1,920 787 Laborers (Unskilled) 996 259 928 281 Service Workers 39 29 9 9 TOTAL 3,666 986 3,386 1,157 Plaintiffs' exhibit 133 shows that, in the three years since the trial for which figures arc available, the company lias continued to prac tice reserving certain jobs for persons of one race. Cf. Findings 32-59 (JA 301-09) . Initial Assignments in 1973, 1979 and 1975 to Jobs the _______District Court Had Found to be Racially Reserved_________________ Jobs Number of Vacancies Filled Number Filled by Blacks Percent Filled by Blacks Clerical 67 9 6% Fixer 92 1 2% Supervisory 78 0 0% Weaver (males only) 162 37 23% Warehouseman 57 59 95% In the one area in which performance seems to have improved -- the 20 assignment of black males to weaving jobs -- virtually all of the progress was made in the two years after the trial. In 1D73 and 1979 , the company initially assigned 97 males to weaving jobs, of whom 35 were black. In 1975, the company initially assigned 30 males to weaving jobs. Only 2 were black. (9) Differences in the Form and Intensity of Racial Discrimination against Black Females and of Racial Discrimination against Black Males The district court found that the defendant discriminated against black females on the basis of their race, but that the form and intensity of its racial discrimination against black fcmoJ.es differed from that of dts racial discrimination against black males. (Findings 99, 77, and 81; JA 30G, 319-20, 322) . Black females, for example, were not hired by the defendant until relatively late. Plaintiffs’ exhibit 59 shows that botli black males and black females were excluded from the defendant's plants, but that the ex clusion of black males was not nearly so total as the exclusion of black females. Tables 1(a) and 1(b) of this exhibit show the following data for current hourly employees as of October 1, 1972: * Bl ack White Black White Females Females Males Males Number 960 1,062 783 1,170 No. Hired before 1965 18 639 195 679 -- Percent of Total No. Hired before 1970 (filing of Complaint) 3.9% 60.1% 18.5%. 57.6% (includes persons above) 176 839 919 919 -- Percent of Total 38.3% 7S .5% 52.9% 12/ 78.5% Plaintiffs' exhibit 89 127“ confirms the tibove data: The district court did not allow plaintiffs to discover CEO-1 forms for periods prior to October 2, 1967. (JA 209, 259). The defendant’s exhibit 1, which includes data for J.967 , is not broken down by sex. 21 Date of Number of EEO-1 Data Male Employees Percent Black Number of Female Employees Percent Black February 29, 1968 1,997 23.9% 1,310 7.9% March 8, 1969 2,051 23.1% 1,211 7.8% April 25, 1970 (J.ast data before filing of Complaint) 1,961 26.6% 1,310 8.8% March 6, 1971 2 ,078 28.6% 1,928 16.6% March 9, 1972 2,198 31.0% 1,518 21.1% Once insi.de the plant, black males were assigned to traditionally black low-paying jobs, but black femaJ.es were given job assignments which, while discriminatory, were less so. Racial differences in average hourly pay rates were much greater for black maJ.es than for black females (Findings GO, 62 , 63 , 67 and 77; JA 309-11, 313-19 and 3.19-2 0), and racial differences in the proportion of blacks in jobs at the top of the defen dant's pay scale are, while still substantial for black women, much larger for black males. Findings 61(b) and 78, (JA 3J.0, 320) , for example, state 61(b) . 2.7% of the black males -- but 35.0% of the white males -- earned $2.81 an hour or more. ... * * * 78. As of October J., 1972 , for current hourly em ployees, 13.1% of black females -- and 23.8% of white females -- earned $2.51 an hour or more ... . Nevertheless, both of the differences stated in these findings arc statis tically significant. (Plaintiffs' exhibits 95 and 50; JA 703-06). The district court gave a specific example of the differences be tween the defendant's racial discrimination against black males and against black females. After noting that the Weaver job "is one of Stevens' relatively high-paying jobs for both males and females" and that the company "frequently hired inexperienced persons off the street for weaving jobs", (Finding 99; JA 305) , the district court stated that in 22 - mid-May, 1969, "Stevens had 73 male weavers and 209 female weavers. Only three of the male weavers, and four of the female weavers, were black ... ." Finding *15; JA 305) . In the next thirty-seven months, "Stevens hired 119 males and 99 females whom it initially assigned to the job of weaver [and] ... 21 males and 17 females whom it initially assign ed to the job of weaver learner." "Of those persons ... 3b.5% of the fe males -- but only 5.7% of the males -- were black." (Finding 96; JA 305). In this period, "the average white male hire had a chance of being as signed" to such a job "over fifteen times greater than the chance of an average black male hire." (Finding 47; JA 306). After finding that the defendant had advanced no explanation for these facts, (Finding 98; JA 306) , the district court stated its ultimate finding (JA 306) : 99. The court finds that Stevens ordinarily reserved the job of weaver for whites until May, 1969. Thereafter, it fully eliminated the racial restriction insofar as it affected black women, but kept the restriction in force in sofar as it affected black men. (5) The Defendant’s Statements of Facts as to the Initial Assignment Claims The defendant’s brief states at 17 that "of all employees assigned to the top paying jobs immediately upon being hired, 33.92% of such assign ments went to blacks during the years 1969 through 1972." At 17-18, it states that in J969, "when blacks were only 17.4% of the total ... employ ees ... blacks received 40% of such initial ... assignments ... ." At 18, it states that for males in the years 1969-72, "32.25% of such assignments went to blacks" and in 1969, "when ... blacks were only 17.9% of the total number of employees in these plants, black males received 39.21% of such initial ... assignments ... ." The jobs to which the defendant refers are those paying $2.53 or more an hour as of October 1, 1972, the period in question is from May 18, 1969 through June 30, 1972, and these assignments are only to jobs where plaintiffs knew of the pay rates. Be that as it 23 may, the defendant's statements do not accurately reflect their stated source, plaintiffs' exhibit 93 (Record Volume XVI). The following table is drawn from this exhibit and accurately reflects it: Breakdown of Initial Assignments No. of Such Assignments No. of Such Assignments of Whites No. of Such Assignments of Blacks Percent Black Total, 1969-72 2,531 1,390 1,191 95.1% Total to Jobs Paying $2.53 or More 510 337 173 33.9% Percent So Assigned — 29.2/6 15.2% — 'A* * * * 9; Total Males, 1969-72 1,605 823 782 98.7% Total to Jobs Paying $2.53 or More *103 273 130 32.3% Percent So Assigned — 33.2% .16.6% — * * * * Total, 1969 377 195 .182 9 S. 3% Total to Jobs Paying $2.53 or More 51 31 20 39.2% Percent So Assigned — 15.9% 11.0% — * * * * Total Males, 1969 262 113 199 56.9% Total to Jobs Paying $2.53 or More *18 28 20 91.7% Percent So Assigned — 29.8% 13.9% — 2 . The Personal Claims of the Plaintiffs Eacli plaintiff is contended to have a personal claim of discrimi- nation indistinguishable from that of any class member; only plaintiff Sledge is contended to have an additional claim of individual discrimi nation unlike the general treatment accorded to class members. 2*1 (a) The Individual Claim of Plaintiff Sledge Plaintiff Lucy Sledge is a black woman (JA 642) hired by the defen dant on July 18, 1966. (Finding 1 (m) ; JA 289). With the exception of a leave of absence for childbirth, she worked for the defendant until she was laid off from her job as a Terry Inspector on July 11, 1968. (ItU) . It is not contended that her layoff was discriminatory, but the defendant’s inspection jobs were still largely segregated, with only a few token blacks in them, as of May, 1969 (Finding 82(d); JA 323-24). The termination form filled out by her supervisor stated that the quality and quantity of her work were good, that her conduct and attendance were good, that her attitude toward other employees was good, that ho rec- commended her for another job in the plant, that lie wanted her to return to his department in the future, and that lie recommended re-employing her on the same job. (Plaintiffs' exhibit 102; JA-Exh. 145). She applied for 13/ re-employment on several occasions ending at some point in 1969, but was never recalled or rehired. (JA 643). She filed an E.E.O.C. charge on March 6, 1970 and ultimately received a Notice of Right to Sue dated September 15, 1970. (JA-Exh. 2-3). Under the defendant's personnel policies, an employee who has been laid off lias priority over applicants for placement in jobs opening up in the plant without being required to apply for employment, (JA 561-63, JA-Exh. 48, 50), and a laid-off employee who keeps returning to the personnel office seeking employment will ordinarily be hired. 137 The dates of her applications are unknown. She could not remem ber them, (JA 643) , and the defendant did not have records oL' them when they were requested in discovery. (JA 198 and 234). In the ordinary course, this was to lie expected. Applications were ordinarily destroyed after the expiration oi the six months for which they were considered cur rent, (Adopted Finding 34, JA 341), and the parties did not stipulate the retention of application forms and other personnel records until January 7, 1971. (R. 83). The applicati ons thus preserved would only go back to July or August 1970. 25 (JA 1097-98). nils is particularly true if the employee had a good work record, as indicated on his or her termination form (JA 1098-99). The defendant hired a substantial number of persons in 1908; its own exhibit 5 shows a total of 70 persons who were hired in 1968 were still employed at the time of trial four years later. (JA-Exh. 2.08, 170, .172 , 179, 176, and 178). Plaintiffs' exhibit 1 s2iows that several white women were hired after plaintiff Sledge was laid off, and were liired despite liaving liad work experience inferior to hers , or education 14/ inferior to hers. The exliibit is explained at JA 569-73 and 771-73. The district court found that the defendant had rehired a number of persons whom it Jiad previously fired; that it had rehired a number of persons whoso former supervisors had recommended against re-employing them in the same or other jobs; and t2iat it had rehired former employees with poor attendance records and poor work records. (Finding 88; JA 325-20). The evidence presented to the district court to sustain that finding involved a number of whites, including Marie G. Wilson, 19_/ E ,g, , Monnie M. Powell, on July 29 , 1968; Jane M. Hawkins on August 28, 1908; Lucy C. Hatche.1 on the same date; Sandra Floyd on September 6, 1968; Helen F. Marshall on September 27, .19GS; Margie P. Peffer on October S, 1968; Maxine G. Walker on November 8, 1908; Lillian L. Draper on November 20, 1968; Cecelia L. Carver on December 9, 1968; Lois M. Acree on December 11, 1908; Betty Collier on December 13, 1968; and Linda V. Smith on December 27, 1968. The codes on the sane exhibit show that Hawkins, Floyd, Marshall, Peffer and Carvei1 were hired despite having had either no previous employ ment experience or no such experience relevant to textile work. The same exhibit shows further that several of these women were hired despite having education inferior to that of plaintiff Sledge: Hatehel (0th-grade), Marshall (lOth-grade) , Peffer (llth-grade) , Carver (llth-grade) , Acree (7th-grade) and Collier (7th-grade) . Because of the district court's limitation on discovery, the first paragraph includes only persons who were stil3. employed in 1972, and the second paragraph includes only persons who wore still employed as of October 23, 1972. (SJA 21). Education and experience data was therefore not available to plaintiffs for all persons listed in the first paragraph. Experience codes are the same as the table numbers in plaintiffs' exhibit 52 (Record Volume XI) . 26 a white female who had either quit or been discharged a total of 14 times, frequently with recommendations against re-employing her on any job, and who had been warned several times about her absenteeism. One such voluntary termination, accompanied by an adverse recommendation against her employment in any job in the plant, occurred on December 26, 1968. By April 1969, she had been rehired and was already being warned again about her attendance. She was nonetheless rehired a total of 13 15/ times. (Plaintiffs' exhibit 101, SJA 37-42). T 5 7 ‘ Other examples were: -- Clyde B. Wages, a white male who had had nine accidents while employed by the company, and had in that time received eight warnings as to absenteeism and other problems. He was fired on October 29, 1969 for excessive unexcused absenteeism; rehired on December 29, 1969; fired for the same reason on March 19, 1970 with a supervisory recommendation against re-employing him in any job; rehired again on May 7, 1970 and quit without notice six months later. (Id., SJA 47-51). -- Johnnie Strickland, a white female, was originally hired on September 19, 1966, quit without notice on May 8, 1967, was rehired three weeks later, quit again on November 2, 1967, was rehired eleven months later, quit again without notice on March 21, 1972 with a supervisory rec- commendation against re-employing her in any job, and was rehired on June 28, 1972. (Id., SJA 59-61). -- S. Ray Barnett, a white male, was originally hired on Septem ber 28, 1965, quit on October 13, 1966 with a supervisory recommendation against re-employing him in any job; was rehired shortly, thereafter; quit again on November 4, 1966 with a supervisory recommendation against re employing him in any job; was rehired again; quit again on April 14, 1967 with a supervisory recommendation against re-employing him in any job; was rehired again, and quit again on March 4, 1971 with a supervisory recom mendation against re-employing him in any job. (Id. , SJA 84-86) . -- Cynthia B. Wells, a white female with a 9th-grade education, quit on July 26, 1971 -- five months after her hire -- because the work was too hard for the pay. Her supervisor recommended against re-employing her in any job. She was rehired on October 18, 1971, less than three months later. (Id. , SJA 42-44) . -- Clarence Sewell, Jr., a white male with an 8th-grade educa tion, had had 6 accidents while employed by the defendant and quit on July 31, 1967. His supervisor recommended against re-employing him in any job. He was rehired on August 26, 1968, (Id. , SJA 35-37). 27 The defendant hired four white women, and no blacks, for Terry Inspector jobs from May 18, 19G9 to the end of the year. (Plaintiffs' exhibit 92 at p. 17, Record Volume XVI). It introduced no evidence to explain the disparate treatment of plaintiff Sledge. The district court- held that she had not been discriminated against, on the ground that there was no evidence of her dates of application or of vacancies on those dates, and on the inconsistent ground that the defendant was then hiring blacks in substantial numbers "and the court cannot assume that this plaintiff was singled out for rejection simply because she was black.” (Finding 1 (m) , JA 290) . At a hearing held in this case on February 29, 1976, the dis trict court stated that its reason for finding that she had not been discriminated against was that she testified at trial that she then 16/ lived in New Jersey, and the court was uncertain when she’d moved. -------- 1(77 The court reporter lias not yet provided the requested tran script. Both plaintiffs and the defendant have pressed for it, but without avail. 28 Whan plaintiffs requested, reconsideration of the dismissal of her claim, they pointed out that plaintiffs1 exhibit 32 showed her address the time of her layoff (JA—Exh. 1) and at the time of her January 8, 1970 E.E.O.C. charge (JA-Exh. 2) , to have been in Roanoke Rapids, North Carolina. (SJA 24). The October 2, 1970 Complaint alleged that she was a resident of Nortli Carolina (JA 13-14) and the Answer admitted the allegation. (JA 95) . (b) Claims as Class Members for Hiring Discrimination Plaintiff Patricia Purnell is a black woman (JA 646) who had a high school degree (JA 649) but no previous employment experience. (JA 648). She applied for employment with the defendant on a number of occasions, her two application forms retained by the defendant show dates of October 10 aid 23, .1969 and June 1 and 13 , 1972. (JA-Exh. 4, 6). She also applied in August 1972. (JA 647). She was never em ployed by the defendant. (JA 646-47). Plaintiffs' exhibit 1 shows that several white women were hired by the defendant shortly after 17/ plaintiff Patricia Purnell's applications, some with no better work IT/--------- ------ P-g- , Alice S. Cook on October 24, 1969; Grace M. McCoy on October 30, 1969; Frances W. Borrell on November 5, 1969; Dorothy M. Gray on November 11, 1969; and Patricia II. Shearin on November 21, 1969; June T. Cobb on June .13 , .1972; Judith W, Elli s on the same date; Ellen A. Harlow on the sane date; Polly p. Odom on the sane date; Cynthia 13. Edwards on June 14, 1972; Martha C. Turner on the same date; Cheryl A. Wasmund on the sane date; Ruby 1. Waters on June 15, 1972; Frances H. Harris on June 21, 1972; Marguerite Wheeler on June 21, 1972; Nina L. Albertson on June 22, 1972; Carol A. Yates on the sane date; Carolyn 13. Warner on June 23 , 1972; Jean G. Moseley on June 26, 1972; Shelby 13. Mann on the same date; Johnnie Strickland on June 28, 1972 (see p. 2 7 note 15 supra) ; and Ruby S. Turner on July 11 , 1972 . The codes in rhe sane exhibit show that Cook, Shearin, Ellis, Martha Turner, Wasmund and Mann were hired despite having had either no previous employment experience or no such, experience relevant to (footnote continues on following page) -29 experience or with education inferior to hers, or who had applied on or after the date she filed her application. Plaintiffs’ exhibit 105 (R. Volume XVII) is a monthly compilation of applicants and hires. It shows that, in the month of her October 19G9 applications, 71.9.1 of white female applicants, but only 15.9% of black female applicants, were hired. In the October-Decembcr 19G9 calendar quarter, 61.9 of white female applicants, and only 21.2% of black female applicants, were hired. In the month of June, 1972 -- the latest data avail able at trial -- 92.6% of white female applicants, but only 18.3 of black female applicants, were hired. On plaintiffs' request for re consideration, the district court had available to it plaintiffs' exhibit .133 (R. Volume XVIII) which includes such documents for the July-Septcmber 1972 calendar quarter. In that period, 62.7. ! of white female applicants, but only 39.1% of black female applicants, were hired. She filed an E.E.O.C. charge on September 5, 19G9, alleging continuing discrimination in hiring from April 19GS on (JA-Exli. 8) and ultimately received a Notice of Right to Sue dated September 15, 197 0. (JA-Exh. 9). The defendant introduced no evidence as to why she was not hired. The district court correctly noted that plaintiffs had aban doned the nonclass contention in the Amended Complaint that she had textile work (1.e . , waitress, maid, etc.). The exhibit also shows that several of these white women were hired despite having less edu cation than plaintiff Patricia Purnell: Cook (lOth-grade), Borrell (lOth-grade) , Cobb (7th-grade) , Odom (7th-grade) , Martha Turner (10th- grade) , Harris (9th-grade) , Warner (lOth-grade) , Mann (11 th-grade) and Ruby Turner (lOth-grade). The exhibit also shows that five of these white women -- Cobb, Ellis, Odom, Mann and Ruby Turner -- applied on or after the date on which she filed her application. Notc: data on education, experience and date of application arc missing for many of the white women listed in the first paragraph above, for the reasons stated in note 19 supra. 30 been singled nut for retaliation on the basis of her civil rights J B / h activities, but held without explanation that she had not been dis criminated against. (Finding 1 (k) ; JA 2S7) . Plaintiff Clara Purnell is a black woman who unsuccessfully applied for employment with the defendant on more than one occasion. (JA 664-65). The defendant had retained an application dated July 26, 1972 , (JA Exh. 17) , but this was not her first. (JA 665) . She had a high school degree, and had had three years’ experience working as a motel domestic. (JA Exh. 17). As stated above, the defendant hired 62.7% of white female applicants, but only 39.1% of black female appli cants, in the July-Soptember 1972 calendar quarter. Plaintiffs' exhibit 1 shows that a number of white women were hired shortly after her July 26, 1972 application, some of them with no relevant work ex perience, or with education inferior to hers, or who applied later 19/ than she did. w Plaintiffs did not press the contention because there was no evidence available to support it. Plaintiffs requested only a finding that she had been discriminated against as a class member. 19/ E ,g ,, Elizabeth D. Arp on July 26, .1972; Connie D. Cullom on July 27 , 1972; Judy D.Stanley on July 28, 1972; Mary B. Hux on July 31, 1972; Evelyn J. Smith on July 31, 1972; Betsy M. Vaughan on July 31, 1972; Kathy G. Whitton on August 1, 1972; Nancy T. Shadrick on August 3, 1972; Lottie S. Edenbeck on August 4, 1972; Mary S. Wood on August 4, 1972; Betty J. Jones on August 7, 1972; Aubria F. Warwick on August 8, 1972; Debra M. Atkins on August 9, 1972; Sara F. Turner on August 14 , 1972; Donna M. Finney on August .15, 1972; Sadie B. Butts on August 17, 1972; Barbara S. Ellis on August 17, 1972; Brenda G. Poole on August 17, 1972; Shelby W. Massey on August 22, 1972; Carolyn G. Keeter on August 23, 1972; Betty M. Keeter on the same date; Barbara A. Powell on the same date; and Gloria N. Edwards on August 24, 1972. The codes in the same exhibit show that Arp, Cullom, Smith, Vaughan, Whitton, Edenbeck, Wood, Jones, Butts, Ellis and Keeter were hired despite having had either no previous employment experience or no such experience relevant to textile work. The exhibit also shows that several of these white women were hired despite having less education (footnote 19 continues on following page) 3.1 She filed an E.E.O.C. charge on September 5, 1969, and ulti mately received a Notice of Right to Sue dated September 15, 1970. (JA-Exh. 19-20). The defendant introduced no evidence as to why she was not hired. The district court held without explanation that she had not been discriminated against. (Finding 1 (j) ; JA 286). Plaintiff Lucy Sledge did not rest solely on her recall rights, but applied for re-employment several times after her layoff, in addition to her individual, nonclass claim as to the defendant's failure to recall her, she also has a class member-type claim as to its failure to hire her pursuant to her applications. Plaintiff Thomas K. Hawkins is a black male who applied for employment witli the defendant on July 21, 1969 . (JA 672). He had worked for a year and a half as a sheet metal apprentice with Bethlehem Steel (Finding 1(f); JA 280) and had a year and a half of college at 20/ the time of his 1969 application. (JA-Exh. 22). He was not hired. (JA 672). The defendant hired 73.7% of white male applicants and 61.5% of black male applicants in 1969, and during the July 1969- January 1970 period for which his application was current, hired of white male applicants and 55.8% of black male applicants. (PIa 82 .B% i n t‘i ffs>1 than plaintiff Clara Purnell: Arp (9th-grade) , Cullom (lltli-grade) , Smith (10th-grade) , Vuigjion (9th-grade) , Whitton (llth-grade) , Ldenbeek (8th-grade) , Wood (9th-gradc) , Warwick (8th-grade) , and Ellas (8th grade) . The exhibit also shows that Jones, AtkinsButts and Ellis were hired despite having applied later than plaintiff Clara Lurncll did. For the reasons explained in note IB, supra, such data is missing for many of the women listed in the first paragraph above . 2 0/Although the district court stated that there was no evidence whether he went back to college after he filed his application, there was in fact evidence that he did not. He testified at trial in 19/2 that he then had only a year and a half of college, the amount of ecu cation stated on his 1969 application. - 32 - exhibit 105). Hiring patterns for males were not uniform during this 21/ period, however. In the period for whieh his application was cur rent, the defendant hired several white males, some of whom had educa tion inferior to his, or who had either no previous employment 22/ experience or none relevant to textile work. He filed an E.E.O.C. charge on September 5, 19G9, and ultimately received a Notice of Right to Sue dated September 15, 1970. (JA-Exh. 2*1-28) . The defendant introduced no evidence as to why he was not hired. The district court found that lie had not been discriminated against on - too grounds. The first ground was that he was not a bona fide appli cant, a finding based on his having signed an E.E.O.C. charge five days after his application, on the fact that Joe P. Moody, who had been 2_3_/ active in trying to end employment discrimination, had witnessed --------- 2T7 Tor the calendar quarter ending in September 19G9, this ex hibit shows that the defendant hired 66 . 2 % of white male applicants and 75.7% of black male applicants. 22 / E.g., David L. Connor on July 2*1, 1969; Willie H. Male on July 30, 19G9; Joe Peterson, Jr. on August *!, 1969; John J. Clark on August 18, 19G9; Thomas E. Nowell on August 28, 1969; Lee B. Brown on September 3, 1969; Everette P. Moore on September 5, 1969; Junior L. Morgan on September 8, 1969; Jesse L. Reid on September 11, 1969; James W . Hayes on September 16, 1969; Henry C. Glasgow on September 30, 1969; Edward Clements, Jr. on October 6, 1969; Albert L. Cushing on October G, 19G9; Aaron L. Oliver on October 7, 1969; William A. Booth on November 3, 1969; Milbert Leo Hux on December 5, .1969; Thomas L. Rainey on December 15, 1969; Bobby R. Phipps on January .12, 1970; and Will T. Lynch on January 13, 1970. The sane exhibit shows that each of these persons for whom educational information is available had a level of education inferior to that of plaintiff Hawkins, and that the following persons either had no previous employment experience or no such experience relevant to textile work: Connor, Male, Reid, Clements, Little, Hux, Rainey, Phipps and Lynch. 23/ Tliis Court cun take judicial notice that Mr. Moody was a plaintiff in Albemarle Paper Co. v. Moody, *122 U.S. *105 (1975) . his charge, and the fact that he listed one of the attorneys for plain tiffs as a personal reference. (Finding 1(f); JA 280-81) . Plaintiff Hawkins was never asked, by the defendant or by the district court, whether his application was in good faith. The second ground was that there was no evidence to show that the defendant's failure to hire him was racially motivated. (Id.) . (c) Claims as Class Members for Discrimination in Assignments Plaintiff Luke Phipps is a black male (JA 670) who was hired on April 3, 1969 and initially assigned to the job of Warehouseman. He took a leave of absence on January 23, 1971 because of sickness and was re-employed as a warehouseman on February 8, 1971. lor the entire period of his employment until his discharge on June 26, 1971, he worked in the Warehouse Department of the Roanoke Rapids Fabri cating Plant. (Finding 1 (i) ; JA 289-85; JA-Exh. 21). Finding 55 (JA 308) states that the job of Warehouseman, paying $2.07 an hour at the time of trial, is one of the defendant's lowest-paid jobs. The district court further found that the defendant "has ordinarily reserved the low-paying job of warehouseman for blacks.” (Finding 59; JA ^09). At the end of 1969, the average white male pay rate was $2.90 an h o u r . (Finding 60; JA 309). On January 1, 1970, plaintiff Phipps’ pay rate was $1.85 an hour. (JA 210). At the end of 1970, the average white male pay rate was $2.53 an hour. (Finding 60; JA 309). On January 1, 1971, plaintiff Phipps' pay rate was $1.96 an hour. (JA 210). This was a larger difference than before. At the time of trial, the average pay rate for white males hired in 1969 was $2.70 an hour. (Finding 62; JA 310), sixty-throe cents an hour more than what plaintiff Lhipps w ~No claim of discrimination is raised herein as to bis discharge. 3i would then have made as a Warehouseman if he had continued in this job. As an employee, he was also affected by the failure to post notices of job vacancies and by the loss-of-seniority penalty for transferring departments. Finally, plaintiffs' exhibit 1 shows that several white men with no previous employment experience relevant to textile work were hired within four months of plaintiff Phipps' hire date and by 1972 were earning at a rate far above the $2.07 an hour then appli- 25/ cable to Warehouseman. The defendant introduced no evidence as to why he was initially assigned to the Warehouseman job or as to why he was never promoted. The district court found, without explanation, that he had not been discriminated against. (Finding 1 (i) ; JA 285). Plaintiff Herman Jones is a black male who was hired on October 17 , 1962 as a Janitor. (Finding 1(g); JA 281). Until his voluntary termination on August 3, 1970, he worked variously as a Janitor, a Warehouseman, a Sweeper and Cleaner and again as a Ware houseman. During this entire eight-year period, he remained in the Warehouse Department of the Roanoke Fabricating Plant. (JA-Exh. 29). At the time of trial, the average hourly pay rate for white males hired in 1962 was $2.79 mi hour (Finding 62; JA 3.10) rather than the $2.07 an hour he would have been making if lie had remained employed as a Warehouseman. The following table contrasts average white male hourly pay rates as of the end of the years stated (Finding 60; JA 309) with 257 The restrictions placed by the Court on discovery deprived plaintiffs of the ability to show the initial assignments of these persons. They are: Raymond H. Adams, hired on April 3, 1969 and earning $2.53 an hour in 1972; Marvin 0. Whitfield, hired April 28, 1969 and earning $3.30 an hour in 1972; Arthur T. Hawks, hired June 13, 1969 and earning $2.62 an hour in 1972; Thurman S. Wynne, hired May 6, 1969 and earning $3.06 an hour in 1972; and Lloyd C. Salmon, Jr., hired June 26, 1969 and earning $3.30 an hour in 1972. - 35 plaintiff Jones’ hourly pay rates a few days later (JA 210): White Males Plaintiff Jones End of 1967: $2.12 January 1, 1968: $1.69 End of 1968: 2.26 January 1, 1969: 1.79 End of 1969: 2 .90 January 1, 1970: 1.85 As with plaintiff Phipps, the difference became larger over time. As with him, plaintiff Jones was affected by the defendant's failure to post notices of job vacancies and by the .loss-of-seniority penalty for transferring departments. As with plaintiff Phipps, plaintiffs' exhibit 1 shows later-hired white males were by 1972 in jobs paying far more than the $2.07 rate for Warehousemen, despite 26/ their lack of relevant employment experience. Plaintiff Jones filed an E.E.O.C. charge on November 17, 1969 and ultimately received a Notice of Right to Sue dated September 15, 1970. (JA Exh. 30-31) . The defendant introduced no evidence as to why he was assigned to a job as a Warehouseman, or as to why he was never promoted. The district court found that lie had not been discriminated against, on the grounds that he had not substantiated his charge of having been assigned to a low-paying job because of his race and of having been denied transfer, and because there was "no evidence from which the court can find that Jones was qualified to perform any other job than that of janitor ... or warehouseman ... ." (Finding 1(g); JA 281-82). -------2E7 E .g,, Earl J. Evcrette, hired on October 19, 1962 and earning $2.73 an hour in 1972; Howard H. Jones, hired on November 15, 1962 and earning $2.23 an hour in 1972 ; Billy J. Sorie, hired on January 2, 1963 and earning $3.30 an hour in 1972; Milton E. Harris, hired on January 7, 1963 and earning $2.29 an hour in 1972; and Carlton S. Edwards, hired on January 9, 1963 and earning $3.19 an hour. Plaintiffs do not have information on Evcrette's previous employment experience. With that exception, none of these white males had previous employment experience relevant to textile work. 36 Plaintiff Marie G. Robinson is a black woman who was hired by the defendant on September 2b, 19G5 and assigned to work as a Winder Tender. (Finding 1(1); JA 288). She had a 12th-grade education, and previous experience of a type unrelated to textile work. (Plaintiffs’ exhibit 1; JA-Exh. 33). Through the time of trial, she worked only in the Preparation Department of the Patterson plant. On February 2G, 1969, she was transferred to the job of Spooler Tender, where she worked at the tine of trial. (Finding 1.(1); JA 288-89; JA-Exh. 32). There is no difference in pay between these jobs. (JA-Exh. 155). She believed that she was in one of the higher-paid jobs in her department and so testified,but clearly knew little about the defendant’s pay rates for different jobs in her own department. (JA 680-81). xn fact, there were 23 job slots in her department higher paid than her job, and 36% of the whites but only lb% of the blacks were in such higher- paid jobs. (Defendant's exhibit b, JA Exh. 155). The defendant's exhibit b showed that only the Warehouse Department of the Patterson plant had a greater proportion of blacks than the Preparation Depart ment, and that the Preparation Department had the fourth lowest-paying mix of jobs. Using the same approach the defendant used for its exhibits 9 (b) and 9 (c) and which is described in the Affidavit of its present Personnel Manager (JA Exh. 202-03) , plaintiffs calculated the total hourly outlay for all of the hourly-paid employees in each of the departments of the Patterson plant, as shown on the defendant's exhibit b, (JA Exh. 155-56) , and divided this outlay by the total number of hourly-paid employees to determine which departments in the Patterson plant had better concentrations of high-paying jobs than others. The results are: 37 Department Number of Hourly Employees Percentage Average Pay of Black_____ Hourly Employees Weaving 258 12.8% $2.73 Supply 9 0 % 2.59 Slashing 26 26.9% 2.51 Spinning 91 35.2% 2.51 Repair 22 31.8% 2 .98 Carding 39 99.1% 2 .98 Ind'l Eng. 5 0 % 2 .95 Preparation 85 99.9% 2.36 Cloth 21 33.3% 2.25 Warp Drawing 3 0 % 2.16 Warehouse 13 89.6% 2 .16 The first three departments contain half of the 562 hourly em ployees in the Patterson plant. When the total outlay for hourly-paid S employees is calculated for the three highest-paid departments as a unit (51.2/0 of hourly employees) and for the eight lowest-paying de partments as a unit (9-8.8% of hourly employees) , and the average pay in each group is calculated by simple arithmetic, the results from defendants exhibit 9 arc: Department Number of Hourly Employees Weaving, Supply and Slashing 288 Spinning, Re pair, C nrding, Ind'l Eng., Preparation, Cloth, Warp Drawing, and Warehouse 2 7'I Percentage ' Average Pay of Black_____ ■ Hourly Employees 13.9% $2.71 91.6% 2.38 Plaintiff Robinson's pay rate was then $2.37 an hour, close to the de partmental average for the lower-paying departments in her plant, and 38 putting her within the showings of discrimination against black female employees generally, against black female employees with her 12th-grade level of education, and against black female employees with previous employment experience unrelated to textile work. (Findings 78-81 and Conclusion 8 (j) ; JA 320-22 , 335) . As an employee, she was also necessarily affected by the defendant’s failure to post notices of job vacancies and by the loss- of-seniority penalty for transferring out of her low-paid department. Plaintiffs’ exhibit 45 (R. Volume XI) shows at p. 10 that ‘12.2% of white female hourly employees in the Patterson plant, but only 1 8 .4/0 of black female hourly employees in that plant, were at the time of trial in jobs paying $2.71 an hour or more. Plaintiffs' exhibit 93 (R. Volume XVI) shows that, from May 18, 1969 to June 30, 1972, the defendant initially assigned over three hundred white women to jobs paying more than Winder Tender or Spooler Tender. Plaintiff Robinson filed an E.E.O.C. charge on November 17, 1969 and ultimately received a Notice of Right to Sue dated September 15, 1970. The defendant did not introduce any evidence as to why she was assigned to the Preparation Department or to the jobs she held m that department, or as to why she was never promoted to better-paying jobs and/or departments. The district court found that she had not been discriminated against, on the grounds that there was no evidence showing that she was qualified for a job other than that to which she was assigned, or that a vacancy existed and some white person got the job. Plaintiff Mable Moody Miles is a black women (JA 651) who has a lUth-grade education and previous employment experience unrelated to 39 textile work. (JA Exh. 10) . After several years of efforts to obtain employment with the defendant, she was hired on June 21, 1967 as a Winder Tender in the Preparation Department of the Patterson plant. (Finding .1(h) ; JA 283; JA Exh. 11) . She was at various times a Spooler Tender and a Warper Tender, and was in the latter job at the time of trial. (JA Exh. 119; JA 652). At the time of trial, only the Section Men and Overseer jobs in the department were paid at a higher rate. (Defendant’s exhibit 4, JA Exh. 155). At trial, the district court sustained the defendant's objection to the question whether she would prefer to be working in another department with a higher-paid job, on the ground that the answer was so certain to be in the affirma tive that it didn't need to be asked. (JA 659-60) . The facts with respect to the pay levels of the jobs available in the Preparation Department, as opposed to those available in other departments, arc the same for her as for plaintiff Robinson. The Warper Tender job had a pay rate of $2.45 an hour at the time of trial, (JA Exh. 155), and from May 18, 1969 to June 30, 1972, the defendant hired 79 white women and assigned them to jobs paying more than the Warper Tender pay rate. (Plaintiffs' exhibit 93) . As with plaintiff Robinson, she comes within the class showings of discrimi nation against black women. As with her, she was affected by the defendant's failure to post notices of job vacancies and by its loss- 27/ of-seniority penalty for transferring departments. She filed an E.E.O.C. charge on November 7, 1969, charging that whites, but not blacks, were hired into the weaving department and into 277 The district court's finding referred to her complaint about inability to get assigned to the first shift, (JA 284), but plaintiffs do not complain of this as discrimination except insofar as her problem is based on the seniority she lost because of the discriminatory delay in her hire. The lack of any defense makes it difficult to divine the nature of this problem. 40 c H (i ii ’l I! n 'i ii I f allowed, plaintiffs withdraw items 8 and 9 of their ther Motion to Compel Discovery From the Defendant. Of Counsel: RICHARD B. SOBOL 1110 Royal Street New Orleans, Louisiana 70116 JULIUS L. CHAMBERS 237 Vest Trade Street Charlotte, North Carolina 2S202 JACK GREENBERG JAMES M. NAUR IT, III WILLIAM ROBINSON 10 Columbus Circle New York, New' York 10019 Respectfully submitted RICHARD T. SEYMOUR 1 7 6 3 R S t r e e t , N . W . Washington, D.C. 20009 T. T . CLAYTON FRANK W. BALLANCE . 307 West Franklin Street P. 0. Box 236 Varrenton, North Carolina 275S9 Attorneys for Plaintiffs Dated: August 28, 1972 the cloth room, that whites obtained better jobs without asking for them, and that the defendant did not post notices of job vacancies. (JA-Exh. 12). The charge was amended on August 27, 1970, with substantially the same allegations. (JA-Exh. IS). She ultimately received a Notice of Right to Sue dated September 15, 1970. The defendant introduced no evidence as to the reason she had been assigned to the low-paying Preparation Department or as to the reason she was not given a promotion into a department with better-paying jobs. The district court credited all of the evidence proffered on her behalf, but held without explanation that she had not been discriminated against. ARGUMENT A . A Previously Certified Class Action Does Not Become Moot as to the Class Because of the Dismissal of the Personal Claims of the Class Representatives The defendant’s appeal in No. 76-1988 and plaintiffs' appeal in No. 76-2303 demonstrate that there is a live "case or controversy" between the plaintiff class and the defendant. The defendant’s brief raises no questions "concerning the continuing desire of any of these class members for the ... relief in issue" and raises no questions "concerning the tenacity and competence of their counsel in pursuing ... legal relief". Under such circumstances, held the Supreme Court in Franks v. Bowman Transportation Co., 424 U.S. 747, 752-57 (1976), the class action may not be dismissed as moot. The defendant urges that Rule 23's requirement of "typicality" and of "fair and adequate representation" cannot be met if the class represen tative no longer has a personal stake in the case. This was resolved ad versely to the defendant in Franks, 424 U.S. at 752-59. See also Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 , 138U (4th Cir., 1972) , cert. den., 409 U.S. 982 (1972); Moss v. Lane Co., 471 F.2d 853, 855-56 ill (4th Cir., 1973); Barnett v. W.T. Grant Co., 518 F.2d 543, 548 note 5 (4th Cir. , 1975) . The cases cited by the defendant are inapposite. 0'She a v. Littleton, 414 U.S. 488 (1974), rested on the failure of the purported class representatives to claim that they had a personal stake in the case, not on their failure to prove such a claim on the merits. Two other eases, Schlesinger v. Reservists to Stop the War, 418 U.S. 208 (1974) and Warth v. Seldin, 422 U.S. 490 (1976) turned upon the prudential aspect of 28/ standing doctrine, and are inapplicable here. Doctor v. Seaboard Coast Line Railroad Company, 540 F.2d 699 (4th Cir., 1976), was an interlocutory appeal from a denial of class certi fication, and thus turned on the sufficiency of the named plaintiffs' claims, not on the effect of a failure to prove that the claims were valid. This Court made this perfectly clear in its opinion. Holding that the typicality requirement must be met both at the time the complaint is filed and at the time of class certification, this Court continued in footnote 24 ... Of course, if the representative party so quali fies, the mere fact that later the representative party's claim is found without merit will not destroy the class action ... ." ~287 The Court has held that there are too aspects to the doctrine of standing. First and primarily, the plaintiff must have a significant nexus with the claim to satisfy the Article III requirement of a "case or contro versy" . Second, there is a prudential "rule of self-restraint", Barrows v. Jackson, 346 U.S. 249, 255 (1953) which the Court has created "for its own governance" and which enables it to refuse to hear some cases which meet the Article III requirements. Ass'n of Data Processing Service Organiza tions v. Camp, 397 U.S. 150, 154 (1970) . The Court said in Camp that "Congress can, of course, resolve the question one way or another ... ." Id. In Hackctt v. McGuire Bros., 445 F.2d 943, 446 (3rd Cir., 1971) , the court held that, in enacting Title VII, Congress intended "to define standing as broadly as permitted by Article III" , thus rendering the pru dential aspect of standing inapplicable to Title VII cases. The Supreme Court approved Hackctt in Trafficante v. Metropolitan Life Insurmico Co., 409 U.S. 205, 209 (1972). See also Cray v. Greyhound Lines-Cast, F .2d , 13 F.L.F. Cases- DT01 (D.C .Cir. , l97b) . 540 F .2d at 707. B. Statistical Evidence, Supported by Evidence of Facially Neutral Practices Which Have a Dispro portionately Adverse Impact on Blacks, Arc Sufficient to establish a Prlma Facie Case It is late in the day for the contention that statistical evidence, particularly when supported by evidence of a departmental seniority system locking black employees into lower-paying departments, failure to post notices of job vacancies, and reliance in making personnel decisions on the uncontrolled subjective discretion of a virtually all-white group of supervisors, is insufficient to establish a prima facie case. E,g., Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 1382-83; Barnett, supra, 5.18 F.2d at 54-8-50. The defendant raises several contentions in an effort to escape this now-settled rule. First, it presents statistics tending to show that it employed a lot more blacks at the time of trial than it did earlier. Brief, at 14-. The fact that the pendency of this litigation lias led to some changes is not, however, a defense to liability. Second, it urges that blacks have received a greater rate of promotions in four plants, and a lesser rate in two others. Brief at 14-, 18. In the absence of a showing that the cents-per-hour value of the promotions was as great for blacks as for whites, and that these promotions wiped out the effect of the discrimi natory initial assignments which started blacks out at much lower pay 29/ rates, this is not a defense to liability. Third, the defendant urges 297 Edwin Akers, the official of the defendant through whom defen dant's exhibit 5 was placed in evidence, testified that any pay increase, whether an increase of a cent an hour or forty cents an hour, was included in this exhibit without differentiation, (dA 1318-19) , that black males have been assigned to lower-paying departments according to plaintiffs' exhibit 91 (JA 1322), and that the cents-per-hour value of promotions is not as much when promotions arc given to persons in low-paying jobs than when given to persons in higher-paying jobs (JA 1323-24) . (footnote continued on following page) - 43 - that plaintiffs did not contend that J.P. Stevens paid blacks less money than whites for working on the same job. Brief at 15. This is not a de fense to liability on a claim of discrimination in assignments to its various jobs. Fourth, the defendant urges that black females, once em ployed, have roughly the same average pay rates as white females. Brief at 15. This is correct, but they have still been discriminatorily denied equal access to the defendant's top-paying jobs for women. See the State ment of Facts, supra, at 22-23 . Fifth, the defendant points out that plaintiffs did not seek to prove that its discharges of employees, or that its testing system, was discriminatory, Brief at 15; the transcript ref erences are to plaintiffs' opening statement, (JA 54-1-42, 547). This is irrelevant to the claims presented. Sixth, the defendant quotes Finding 102 (JA 329 i Brief at 15) without indicating that it has been withdrawn and that the new Finding 102 states only: Plaintiffs do not claim that the promotional opportunities of Stevens’ employees are controlled by seniority. (JA 531). Seventh, the defendant points to the lack of evidence of a de liberate racial motivation on the part of J.P. Stevens. Brief at 15. As the district court held, this is not a defense to the defendant's liability for its practices and for the actions of its supervisors. (JA 331, 336-37). Eighth, the defendant urges that the district court did not find discrimi nation with respect to 29 blacks who hud clerical qualifications and had unsuccessfully applied for employment with the defendant. Brief at 16. Adding together the figures from defendant's exhibit 5 for per sons hired in 1968, 32 blacks and 43 whites were hired, and 26 "promotions" went to blacks and 28 to whites. Blacks were thus M2.7^ of the.hires but . obtained M8.1?o of the "promotions". Yet, as of October 1, 1972 , white males hired in 1968 had an average hourly pay rate 35.7d per hour higher than the average black male pay rate. (Finding 62; JA 3.10). Clearly, either the value of black promotions is much less than the value of white promotions, or blacks started out in much lower-paying jobs and the pro motions did not eradicate this difference. Cf. JA 1325-32. The district court's finding 9G (JA 328-29) was in fact based upon its uncertainty that the applicants in question were in fact applying for clerical jobs, Id^, and the court clarified this finding to provide that they could supply this missing fact in future back pay proceedings. (JA 531) . There was no affirmative finding of nondiscrimination as to 3Q/these persons. Ninth, the defendant presents its workforce contention. Brief at 16-17. The facts relevant to this contention are discussed in the Statement of Facts at 13-18, and the matter is briefed at 97-54, infra. Tenth, the defendant incorrectly urges that plaintiffs' exhibit 93 proves nondiscrimination in initial assignments. Brief at 17-18. The correct facts are stated in the Statement of Facts at 23-24. Eleventh, the defendant urges "that of the total pay to all production and mainte nance employees in the Roanoke Rapids plants" as of December 1975, "blacks receive a share ... almost identical to their numerical proportion ... Brief at 18-19. As explained in the Statement of Facts at 19, this chart excludes the higher-paid and disproportionately white salaried jobs. Even at that, it shows that whites are earning an average of 22/ an hour more than blacks. At 2 ,080 hours a year, the total annual earnings loss for blacks, as compared with earnings of whites, is $571,542.40. This is not "almost identical", and is a confirmation of, rather than a defense to, liability. Twelfth, the defendant urges upon the Court the vague 30/The case of just one of these persons may be informative Ellen I Ellis is a black woman who first applied for a job on August 1969 She had a high school degree and two years' clerical experience as a receptionist and typist. She returned to Stevens' p e r s o n n e l office at least nineteen times after her first application, in further eifoils to rUv»--vin emolovnicnt After three years, she was hired, on September 1 , 1972 for one of Stevens' lowest-paid jobs for women, tying arid wrapping o? towels for $2.07 an hour. Mr. Akers testified that this was not a very suitable job for a person of her cpalifications. Llaintif exhibits 1, 25 and 96 (Record Volumes VIII, X and XVI), JA S6J, 130 1- . ~ 7The persons in those jobs should be included if the chart is to be relied upon! It distorts reality tc> exclude categories^ will. Swint v. lMllman-Standnrd__Co_i, 539 1 .2d 77, 96 r5tii Cir. , 1976) . generalities proffered by Mr. Akers, Brief at 19-20, and found insuffi cient by the district court as a defense to liability. (Conclusions 9- 10; JA 335-37). The district court was plainly correct as a matter of 32/ 33/ law, and plainly correct as a matter of fact. Thirteenth, the defendant urges that some excellently-qualified whites, whose applications were examined on the record, had not been hired "even though many of them had re-applied time and time again". Brief at 22-23. The cited appli cations involved 22 persons; with the exception of Dennis Robert Scherrer, the company witness who discussed them testified that none of them re turned a single time. (JA 1393-99). Fourteenth, the defendant lias quoted a couple of questions and answers to make it appear that Dr. Mann had 327United States v, Jacksonville Terminal Co., 951 F.2d 918, 992 (5th Cir., 1971) cert, den. , 906 U.S. 906 (1972) held that protestations of racial neutrality were insufficient to rebut inferences of discrimina tion arising from statistics. The Title VII defendant may rebut such inferences only if it "evidentially demonstrates that objective criteria pertinent to the particular job are the determinants of who is 'best qual ified’ ." Accord, Watkins v. Scott Paper Co., 530 F.2d 1159, 1.177-78 (5th Cir., 1976) , cert. den. , U.S. , 95 U.S. Law Week 3253 (1976) . In Brown, supra, 957 F.2d at .1382-83 , this court held that "elusive, purely subjective standards must give way to objectivity if statistical indicia of discrimination are to be refuted" and that "in the absence of objective criteria __ the statistics indicate that race.is the only identifiable factor ... ." 33/ The testimony quoted in the defendant’s brief overlooks some im portant matters. First, it is not correct simply to state that "Roanoke Rapids __ is predominately [sic] white". The witness testified.as fol lows on cross-examination (JA 1265) : Q: Would it be accurate to say that the City of Roanoke Rapids is essentially a white island amongst a population of a much higher proportion of blacks all around it? A: Yes, it is definitely that. Second, Mr. Akers' testimony that whites were better skilled tlian blacks in the past had just one stated objective fact to back it up: that the white schools in Roanoke Rapids used to run a night "textile school" at which whites were trained to work on textile jobs.. (JA 1208- 09). On cross-examination, he testified that the defendant's predecessor operator of these plants provided free textile machinery to this school, but did nothing comparable for the black schools in Roanoke Rapids or in Halifax County, and that this racially segregated training program was discontinued in the 1990's. (JA 1219-26). reached a "totally erroneous" conclusion, Brief at 27-28, but omitted to mention that Dr. Mann testified on this subject correctly just before the quoted passage, momentarily misspoke in the quoted passage, and corrected himself immediately after the quoted passage, before counsel's statement. (JA 722-25) . None of these matters arc a defense to liability on any of the claims of discrimination found. C. The District Court Did Not Err in Finding That the Defendant Discriminates in Hiring, or in Granting Relief from that Discrimination, Notwithstanding the Defendant's Claim that it Already Employs Enough Blacks The figures shown at pp. 10-11 above demonstrate that a white appli cant who walks into the defendant’s Central Personnel Office in Roanoke Rapids and asks for a job has nearly twice the chance of getting hired that a black applicant has. Plaintiffs contend that this situation is un lawful and must be remedied, regardless of how many blacks or whites the defendant may then have working for it, for such a fact is legtilly irrele vant to the defendant's favoring of white applicants over the six and a half years included in the record. This Court so stated in Patterson v. American Tobacco Co., 535 F.2d 257 , 275 note 18 (4th Cir., 1976) , cert. den., U.S. , 45 U.S. Law Week 3330 (1976) . To hold otherwise would be to impose a ceiling on the law's pro tection of blacks or of whites, and to say that once the employer has ap proximated the community racial proportions in its employment of a particu lar group, it may thereafter discriminate against additional applicants from that group with complete immunity from the commands of Title VII. This is not, and never has been, the law. The law, instead, requires 34V equality of access. Where access is unequal., the law is not satisfied ------ 3TT7 Sometimes, where access lias been found to have been unequal, it is necessary to impose a temporary, result-oriented quota to remedy the inequality and to guarantee that future access will truly be equal.. This is discussed below at 54-65. In any event, this is a matter of remedy by a racial proportion among employees which mirrors the racial proportions in the community. Where access is equal, the Jaw does not require that the racial proportion of a group of employees mirror the racial proportions in the community. See Morrow v. Cr.isler, 991 F.2d .1053, 1056 (5th Cir., 1979) (en banc) , ccrt. den. , 919 U.S. 895 (1979) ; NMCP v. Allen, 993 F.2d 619, 618 (5th Cir., 1979); Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 , 1193 note 5 (D.Md., 1973) , aff*d sub nom Harper v. Kloster, 986 F.2d 1139 (9th Cir., 1973); Mims v, Wilson, 5.19 F.2d 106, 109 note 5 (5th Cir., 1975). The question in any case is, what is the best standard to determine whether there is true equality of access? In some cases, discrimination has been so total that virtually no blacks apply, and failure to use Census- type statistics, whether racial proportions of the community or of the workforce, would enable the worst violators of Title VII to escape J.iabil- ity. There,where nothing else is available, the courts have used Census- type statistics as the standard for deciding whether there was true equality of access. This was the case in Jones v. Tri-County Electric Co operative , 512 F.2d 1, 2 (5th Cir., 1975) , in H.H.O.C. v. Elevator Con structors, Local 5, 398 F.Supp. 1237 , 1299 , 1252 (H.l).Pa., .1975) , aff1 d , 53S F.2d 1012, 10J.9-16 (3rd Cir., 1976) , in Franks v. Bowman Transporta- tion Co., 995 F.2d 398, 919 (5th Cir., 1979), rev'd on another issue, 3_5_7 929 U.S. 797 (1976), in Morrow and in Allen. Sometimes, courts have Changes in local, labor conditions -- the closing of a plant with low-paying jobs and a predominantly black group of employees, or the closing of a plant with a predominantly white group of employees -- may lead to temporary fluctuations on applicant flow. Such fluctuations, from unknown causes, occurred once for blacks and once for whites in the six and a half years for which there is evidence herein. The fact that the black percentage of applicants deel.ined because of the white surge does not bring this principle into play. If there is a substantial proportion of black applicants for the employment in question, that fact in itself indicates that the employer's policies arc not discouraging blacks from applying, even if the black proportion of applicants is somewhat J.ess than their pro portion in the community. used population or workforce figures to confirm showings of discrimination based as well on applicant-flow or test pass/fail rates. Boston Chapter, NMCP v. Beecher, 371 F.Supp. 507, 519 (D.Mass., 1979), af f' d , 509 F.2d 1017 (1st Cir., 1979) , cert. den. , 921 U.S. 910 (1975); Payne v. Travenol Laboratories , 916 F.Supp. 298, 257-58 (N.D.Miss., 1976). In some eases, population statistics alone have been so convincing of discrimination that no additional showing was required. Fowler v. Schwarzwalder, 351 F.Supp. 721 (D.Minn., 1972); Crockett v. Green, 388 F.Supp. 912, 917 (E.D.Wis., 1975) . Cf_̂ , Franks, supra, 995 F.2d at 919 ("The most vociferous figure __ is that Bowman's office staff was __ and had always been one hundred percent white."). In this case, there is ample evidence to support the district court's findings that the relevant standard is applicant-flow. There is data on applicant flow over a period of six and a half years, and it shows a consistent pattern throughout this period. Statement of Facts at 10-11. There is no evidence of îny problem of duplicate applications being filed while a current application is pending, and there is affirmative evidence that the number of separate individuals who have applied for employment at J.P. Stevens has a proportion of blacks even higher than that shown in the applicant-flow data. Statement of Facts at 12. There is evidence that the proportion of blacks among the persons seeking employment referrals at the Roanoke Rapids branch office of the North Carolina Employment Security Commission is comparable to the proportion of blacks shown in the applicant-flow data, Statement of Facts at 12, and this supports the accu racy of the applicant-flow data. There is evidence that the defendant employs 13.8% of the local workforce and 80.9% of the local textile work force, Statement of Facts at 13, making it clear that the use of workforce statistics would in effect be "bootstrap" evidence, using the defendant's performance as the standard by which to judge the legality of its performance. There is the unrebutted testimony of plaintiffs' expert witness that applicant-flow data is the appropriate standard in this case, Statement of Facts at 13-17, and the district court chose to credit this testimony. There is the fact that the defendant excluded hundreds of white employees in its calculation of the proportion of blacks among its employees. Statement of Facts at 13. There is the fact that white hires don't work as long as black hires, thus inflating the proportion of blacks among the defendant's employees beyond what it would be from the 36/ defendant's hiring practices in isolation. Statement of Facts at 17. Finally, there are several corrections to the raw labor force data which are necessary to approximate the actual labor pool available for hire by the defendant, and the resultant data confirm the conclusion indicated by the applicant-flow data. Statement of Facts at 17. The district court's decision to credit this testimony and to rely upon this evidence cannot be considered clearly erroneous. Tliis Court has cautioned against the kind of unthinking use of "community racial proportions" advocated by the defendant. Logan v. General. Fireproofing Co., 521 F.2d 881, 883 (4th Cir., 1971) . In Log cm, tills Court cited a Note, "Employment Discrimination and Title VII of the Civil Rights Act of 1964", 84 Harv.L.Rev. 1109, 1154 (1971). This Note, quoted in the defendant's brief at 25-26, singles out the essential prob lem to which Dr. Haber testified: that Census-type statistics do not 36/l The Fifth Circuit addressed this type of situation in Swlnt v. Pullman-Standard Co., 539 F.2d 77, S3 and 83 note 10 (5th Cir., 1976) . Greater job opportunities for whites elsewhere may have been the cause leading to a white rate of terminations which was much higher tluui the black rate of terminations. This produced a situation in which the black percentage of its employees was 49.5/, almost half again the black percen tage of the workforce, but did not mean that the defendant had been dis criminating against whites in its hiring. Id. It seems apparent from thi that an employer with the sane percentage of blacks in its entry-level job as the percentage of blacks in the workforce may still be discriminating very substantially against blacks in hiring. 50 i reflect the persons interested in filling the company’s jobs at the com pany’s rates of pay. Accord, harper, supra. The courts have looked with disfavor on the use of Census or labor- force statistics when they Eire inconsistent with available and valid applicant-flow data. E,g., Davis v. Washington, 512 F.2d 95G, 900 (D.C.Cir., 1975) , rev’d on other Issues, U.S. , 148 L.Ed. 597 (1976) ("There is no authority -- and we decline to provide any -- for the proposition that proof of a. racially disproportionate impact must encompass botli pass/fail rates and disparate population figures."); Hester v. Southern Ry. Co., 997 F.2d 1379, 1379 (5th Cir., 1979) (Recourse to Census-type figures provides "no more than an indication", and "recourse would still have to be had to the statistics concerning the applicant pool and its racial composition before meaningful comparison with the percentage of blacks actually employed could be made."); Swint, supra note Hill v. Western Electric Co., F.Supp. , 12 F.E.P. Cases 1175, 1179- 80 (E.D.Va., 1976). The Fifth Circuit decided to use labor-force rather than applicant-flow data in Robinson v. Union Carbide Co., 538 F.2d 652 (5th Cir., 1976), but because the level of duplicate applications was so 37/ high that the applicant-flow data was completely unreliable. The case therefore fits in with Morrow, Allen, and Elevator Constructors. Unlike the case at bar, there was also no independent evidence in Robinson con firming the reasonableness of the applicant-flow figures. Robinson turned on its facts, and indicates no intention to overrule Hester, decided a year earlier, or to disapprove Swint, decided eleven days earlier. No 377 The court of appeals quoted one witness who testified that the problem of duplicate applications was so extensive that trying to deter mine the racial proportion of individual applicants frein the number of forms filed was like "trying to measure jellyfish with a rubber band ... ." 538 F.2d.at 658. 51 court in the country has ever chosen to disregard valid applicant-flow data in favor of Census-type statistics which pointed to a different con clusion . The Davis-Hester-Logan-liar per approach makes excellent factual as well as legal sense. Apart from all other matters discussed above, first, workforce statistics incorporate the actions of all local employers. If some of them are discriminating and the standard of performance is work force statistics, their discrimination lowers the standard of legality for other employers as well as for themselves. If none of the .local employers hired a single black, there would be virtually none in the workforce and reliance on workforce statistics would immunize them from liability. Second, reliance on workforce statistics gives too great an opportunity to the panties to define the relevant area in an arbitrary manner. Although Roanoke Rapids is a "white island" in a predominantly black county, supra at M6 note 33, the defendant at trial introduced its exhibit 3, (JA-Exh. 1LI8), showing that the population of Roanoke Rapids was 10.1% black, but that 33.7% of the defendant’s employees were black. (JA 1173). Third, the lack of any necessary connection between a defendant's hiring practices and the percentage of its employees who are black gives too much of an opportunity to employers to manipulate the percentage of their em ployees by not counting persons in predominantly-white jobs. Fourth, totally unconnected events would have too much influence on a workforce standard. If a company was discriminating in hiring on March 1, and another company opened up a plant on March 8, offering higher pay rates and hiring away the defendant's white employees, reliance on this percentage-of-workforce- versus-percentage-of-employees standard would mean that a company which discriminated in hiring on March 1 would not be discriminating on March 8, with no change in the underlying practices. The defendant urges, in the utter absence of any proof, that appli cant-flow data arc subject to "manipulation". Brief at HO note 1. See the Statement of Facts at 14. In any event, the objection is not strong. Virtually anyone can do the defendant’s jobs, and it cannot suffer if the G ...persons it employs can perform its jobs. The defendant seems to fear the specter of some civil rights organization recruiting blacks to apply for jobs when they have no interest in working for the defendant, in order to increase the defendant's obligation to hire blacks. The defendant urged below that it could not distinguish between bona fide and mala fide appli cants so as to delete them from the applicant-flow count. The district court responded to this fear, however unrealistic it may be, by changing the standard of the defendant’s performance from actual hires to offers 38/ to hire, and this resolves the problem. Finally, the defendant tries to set in motion a rather limping parade of horribles -- What if ten times as many blacks apply? What if only one white applies and is hired? The short answer is that such tilings have never happened in the six years, seven and a half months for which the figures are in the record. If unusual situations occur, the defendant’s remedy is to move for a clarification of the Decz'ec, or an amendment to it, 38/ For example, suppose that there were 500 white and 500 black applicants, all bona fide, and 200 jobs to fill. Under plaintiffs' origi nal proposal, (JA 407), both blacks and whites would get a hundred jobs. If a thousand black mala fide applicants applied, blacks would have ob tained three-quarters of the vacancies -- 150 jobs -- and whites would receive only fifty jobs. Under the court's modification, (JA 493) , blacks would not re ceive a single extra job because of the mala fide applicants. The company would make its offers according to applicant-flow -- 50 to whites and 150 to blacks. Fifty whites and 50 blacks would accept, with two-thirds of the blacks being mala fide and refusing to accept. The company would then make additional offers to fill the remaining hundred jobs, and at eacli stage only the bona fide applicants would accept. The result would be 100 new employees of eacli race, exactly as if there had been no mala 1 idc ap plicants. Mala fide applicants making no difference, it would require an even wilder flight of fancy to believe that some civil rights organization would take such an approach. 53 under paragraphs 36 and 37. (JA 512-13). Otherwise, since the defendant already keeps a daily tally of applicants and hires by race and sex, it can comply in the same manner in which it makes sure that it doesn't run out of materials and that its checks don't bounce. D . Where the Record Showed that Hundreds of White Super visors Have the Power to Make Completely Subjective Personnel Decisions, that for Several Years They Had Made their Decisions on the Basis of Race, that this Continued for the Years Since the Trial, and Where the Defendant Was Unable to Propose any Alternative Form of Relief that Would be Effective, the District Court Did Not Abuse its Discretion by Ordering Temporary Quotas 1. The District Court Had the Duty to Exercise Its Discretion So As to Grant Complete Relief On the record of racial discrimination herein, "the district [court] has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. United States, 380 U.S. 145, 154 (1965). "The terms 'complete justice' and 'necessary relief' have acquired a clear meaning in such circumstances." The purpose of the district court's discretion under Title VII is "to make possible the fashioning [of] the most complete relief possible." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). " ... [A] court cannot abdicate to defen dants' good faith its duty of insuring removal of all vestiges of discrimi nation." Barnett, supra, 518 F.2d at 550. "The federal chancellor lias the nondiscretionary duty to end all discriminatory practices, past, present and future." NAACP v. Allen, supra, 493 F.2d at 622. A remedy necessary to complete relief "must be granted despite difficulty in its formulation." Swint, supra, 539 F.2d at 101. While a district court has discretion, its remedy must "promise realistically to work and to work now." Allen, supra, 993 F.2d at 617, citing Green v. County School Board, 391 U.S. 430 (1968). Whore a district court is faced with two alternative Title VII remedies, one which would be completely effective and the other less effective, only a showing of business necessity can justify entry of the less effective relief. Rock v, Norfolk & Western Ry, Co., 473 F.2d 1344, 1348-49 (4th Cir., 1973). The Fifth Circuit has adopted the same position this Court took in Rock: The question is not whether the opportunities af forded by Seott were "ample" in the sense that they substantially reduced the effects of prior discrimination. The question is whether Scott has done enough. And "enough" means, for the pur poses of Title VII, everything that is possible. This realm of possibility should be limited only by the most compelling business reasons. If the business can function safely and efficiently after the imposition of remedial relief, it must be subject to such remedial relief. Watkins v. Scott Paper Co., supra, 530 F.2d at 1.168. 2. The District Judge Exercised Great Care in Framing Relief Faced with a record establishing the unusual breadth and intensity of discrimination herein, and faced with the clear duty to grant "complete relief", the district judge properly proceeded with great caution and fair ness. First, he directed the parties to meet and confer on the injunctive relief to be entered. (JA 338). Even if no agreement were forthcoming, this required the parties to confront each others' problems and attempt to deal with them. As explained at the February 24, 1976 hearing, counsel for plaintiffs met four tunes with counsel for the defendant, twice in Charlotte and twice in Washington, and plaintiffs' original draft Decree was substantially altered to resolve some problems raised by the defendant Second, he allowed counsel for plaintiffs to hold a meeting with class members, to explain the decision on liability to them and to obtain infor mation and views from them relevant to the drafting of a proposed Decree. (R. 630). This was of great assistance to counsel for plaintiffs. Third, he allowed the Textile Workers Union of America to intervene as a party plaintiff, so that the defendant's employees, both black and white, would have an independent voice in the framing of the Decree. The union had in fact made several suggestions to plaintiffs prior to the February hearing, and plaintiffs' proposed Decree reflected these suggestions when ulti mately presented to the district judge. Fourth, he allowed the supple mentation of the record to determine whether the defendant was still discriminating. Fifth, the terms of the Decree were fully argued on February 2M, 1976 and he then gave the defendant the opportunity to make a written, paragraph-by-paragraph critique of plaintiffs' proposed Decree, and asked that practical questions of burden be fully set forth. Sixth , he allowed the defendant to file several additional memoranda objecting to plaintiffs' proposed injunctive relief. Seventh, he held an eviden tiary hearing at which the parties could introduce evidence of all facts bearing on relief. Dr. Haber testified at this hearing. The Personnel Manager for all but two of the facilities involved in this litigation also testified, but only to introduce the defendant's exhibit 8. (JA 1661 JA-Exh. 187). At every stage of these proceedings, counsel for plaintiffs responded in good faith to as many of the defendant's practical objections as they could, consistently with their knowledge of the record and their duty to the class. They proposed several revisions in the Decree they had already proposed to the district court, to take account of matters raised by the defendant. The defendant was similarly given every chance to pro pose alternative forms of relief which would be effective, but could not come up with any. In his entry of relief, Judge Dupree relied on his own great familiarity with the record, the experience he has gained over the past six years with the defendant's now-routine predictions of disaster if it is not heeded at every procedural and substantive turn, and his experience as a trial judge with the practical workings of relief. He 50 did not grant plaintiffs all that they had asked, but struck a middle ground consistent both with his desire to be fair to the defendant and with his plain duty to grant complete relief in the face of the defendant's demonstrated inability or unwillingness, either before or after the trial, to control its own supervisors. Cf. this Court's discussion of persistence in discrimination, as warranting injunctive relief which might nof other wise be appropriate, in United States v. Chesapeake & Ohio Ry. Co., 971 F .2d 582 , 591 (9th Cir., .1972), cert, den. , 911 U.S. 939 (1973). The Decree from whicli the defendant appeals is his judgment of what is required 90_/ to effectuate Title VII at these plants. The product of so careful and painstaking a process should not lightly be overturned. 3. In an Appropriate Case, a Temporary Remedial Quota May Lawfully be Decreed This Court held in Patterson v. American Tobacco Co., supra, 535 F.2d at 273-79, that the imposition of temporary remedial quotas in an appropriate case does not offend §703 (j) of the Civil Rights Act of 1969 , 92 U.S.C. §2000e-2 (j) , and no purpose would be served by re-arguing the authorities there discussed. There are, however, two additional matters 39/ 397 E .g,, he denied the general promotional quotas plaintiffs had re quested (JA 381-83, *J37) and substituted a bidding system (JA 505-06, *|29) ; he denied the interplant transfer of seniority requested by plaintiffs (JA 37.1, ,J2|I) ; and he even limited the posting of vacancies in response to the defendant's contention that it would be too burdensome to require posting vacancies on all bulletin boards. (JA 375, «J26; JA 509, *J22) . 9 0 / The language used by the district court in denying the company's motion for a stay of the Decree (JA 527) makes it plain that he would never have entered the Decree if lie believed that any lesser relief would have been adequate to effectuate Title Vll under the facts of this case. Nothing in the record would support the proposition that he committed clear error in his view of the facts, or that his framing of relief was an abuse of dis cretion in light of his view of the facts. 57 worth mentioning. First, the concurring and dissenting opinion in Patterson raised the question of the constitutionality of temporary reme dial quotas. Judge Clark raised a similar question in his concurring opinion in Morrow v. Crlsler, supra, 4-91 F.2d at 1058, and resolved it in NAACP v. Allen, supra. Second, the concurring and dissenting opinion in Pattersoa raised the question of Congressional intent with respect to temporary remedial quotas. The answer is now clear. Congress ratified the use of temporary remedial quotas in appropriate cases when it enacted the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103. During debate on the measure, Senator Ervin-introduced an amendment, No. 829, which if passed would have barred such relief. Senator Javits urged its defeat because it would legislatively overrule decisions such as United States v. Ironworkers Local 86, 443 F.2d 544, 552-54 (9th Cir., 1971) , cert. den., 404 U.S. 984 (1971) and Contractors' Ass'n of Eastern Pennsylvania v. Secretary of Labor. 442 F.2d 159 (3rd Cir., 1971), cert, den., 404 U.S. 854 (1971). He inserted both decisions into the Congressional Record. 118 Cong. Rec. S 693 to S 704 (daily ed., January 28 , 1972) . He stated that the amendment "would torpedo orders of courts seeking to correct a history of unjust discrimination ... ." 118 Cong. Rec. S 704-05. Senator Williams stated that "this amendment would strip Title VII ... of all its basic fiber. ... This amendment raises the real threat of destroying any potential for effective law enforcement." 118 Cong. Rec. S 705. The amendment was defeated. 118 Cong. Rec. S 706. Reviewing the legislative history, the Sixth Circuit held that it was not the intent of Congress to forbid such quota remedies. United States v. Local Union 212, I.O.E.W., 472 F.2d 634, 636 (6th Cir., 1973). Accord, Elevator Constructors, supra, 53S F .2d at 1019-20. 58 ll-. Under the Facts of this Case, and the Defendant's Demonstrated Unwillingness or Inability to Control its Supervisors, and in Light of the Defendant's Inability to Propose any Effective Alternative, the District Court Did Not Abuse its Discretion by Ordering Temporary Quota Relief This case involves the "exaggerated facts" evisioned in the con curring and dissenting opinions in Patterson, 535 F.2d at 277. Over two hundred white officials daily make absolutely standardless personnel decisions with respect to the selection of persons to hire, the selection of departments and jobs to which the new hires should be initially assigned, the selection of employees to promote, and the selection of the jobs to which they should be promoted. Even among whites, by themselves, it is 43/ impossible to find any consistent approach for making these decisions. The defendant's failure to impose any objective standards in practice allows supervisors to base their decisions on whim, on caprice, and on 42/ racial stereotypes. This is why court after court has condemned the vesting of such unchecked power in virtually all-white groups as, in the words of the district court, "conducive to discrimination". (Finding 24, 41/ Dr. Ireland performed multiple linear regressions to find out whether there was any relationshop between objective qualifications such as level of education, type of previous employment experience, and seniority, and the job assignments of white males, lie then went through the same procedure for white females. These operations were performed on the data for the individuals reflected in plaintiffs’ exhibit 1. He found that "there was really no practically meaningful relationship" between these objective criteria and the pay levels of whites of either sex. (JA 1570-77, 1596-1G04; plaintiffs’ exhibit 135). All objective variables known to plaintiffs were included in this analysis. 42/ One cannot help wondering how many of the defendant's super visors, for example, believe that the company's black employees arc lesser- educated than its white employees, even though the truth is that they're better educated. 59 I quoted at 10, supra) . The record herein establishes that, at each point in the personnel process at which subjective judgment plays a part, whites are consistently favored and blacks are consistently disfavored. This must be remedied, remedied completely, and remedied now. In view of the number of per sonnel decisions being made, the large number of job categories with re- W spect to which they are made, the defendant's insistence that it must continue to roly on subjective factors, its demonstrated unwillingness or inability to control their exercise of discretion in the one matter rele vant to this case -- the exercise of discretion along racial lines -- and the inability of the defendant to propose any effective alternative, the imposition of temporary remedial quotas is the only effective form of relief possible. It does not destroy supervisors' discretion, as the defendant suggests, but channels their exercise of discretion in the one way relevant to this case, .leaving all others untouched. _43/ ------ u y .............. Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723-24 (4th Cir., 19G6); Cypress v. Newport News General and.Nonsectarian Hospital Ass'n., 375 F.2d 648, 655 (4th Cir., 1967); United States v. Bethlehem Steel Corp., 446 F.2d 652 , 655 (2nd Cir., .1971); Rowe v. General Motors Corp,, 457 F.2d 348, 359 (5th Cir., 1972) ("We and others have expressed a skepticism that Black persons dependent directly on decisive recommenda tions from Whites can expect non-discriminatory treatment."); Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 1382-83; United States v. N.L. Industries, 479 F.2d 354, 369 (Sth Cir., 1973); Sims v. Sheet Metal Workers' Int'l Ass'n, Local No. 65, 489 F.2d 1023, 1026 (6th Cir., 1973); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 232 (5th Cir., 1974); Afro-American Patrolmen's League v. Puck, 503 F.2d 294, 300 (6th Cir., 1974); Barnett, supra, 518 F.2d at 550; Wade v. Mississippi Cooperative Extension Service, 528 F.2d 50S, 517-18 (5th Cir., 1976); Senior v. General Motors Corp., 532 F.2d 511, 528-29 (6th Cir., 1976); United States v. Hazelwood School District, 534 F.2d 805, 812-13 (Sth Cir., 1976). 44/ Plaintiffs' exhibit 2 is a job-by-job listing of employees, which shows that, at the time of trial, there were 595 hourly positions at the defendant's plants and Central Office. 60 The imposition of such relief in this case is justified under the most exacting standards. In NAACP v. Allen, supra, 993 F.2d at 621, Judge Clark stated that such quotas "should be reserved for those situations in which less restrictive means have failed or in which the chancellor could reasonably foresee that they would fail". (Emphasis supplied). Here, no party has been able to propose any effective alternative, and the post trial experience shows that only the compulsion of the district court will bring about change. In Patterson, supra, 535 F.2d at 275, this Court found no compelling need for a quota where the employer had, albeit tardily, accomplished on its own the same goal sought by the district court's quota relief. Here, the defendant's hiring practices have continued exactly as they were, and the pay disparity between black and white hourly employees has actually increased since the trial. In Allen, Judge Clark found It important that there was "clear evidence of a long history of intentional racial- discrimination" (as herein, with the findings of subjective dis crimination by white officials and supervisors), the absence of efforts "to recruit minority personnel" (as herein; while there was no need to re cruit for black applicants generally, the defendant has done nothing to recruit blacks into its traditionally-white jobs, such as supervisory, clerical, fixer, male weaver jobs, and other high-paid jobs), and the uti lization of discriminatory selection procedures (as herein). 993 F.2d at 620. While not holding that such evidence was essential to support quota relief in any case, its presence in Allen, as here, provides addi tional- strong support. 993 F.2d at 621. In Kirkland v. New York State Dept, of Correctional Services, 520 F.2d *120, 927-30 (2nd Cir., 1975), the court of appeals announced guidelines for the imposition of quota relief. First, there must be evi dence of "a clear-cut pattern of long-continued and egregious racial dis crimination.” 520 F.2d at 927. That requirement is satisfied herein. 61 Second, the adverse effect of the quota must be spread over as broad a group of whites as possible. If the effect of the quota is concentrated on a small number of readily identifiable whites, such as the persons ranked on a valid Civil Service promotional examination, the quota is not permissible. Here, there is nothing like a promotional ranking which would have such a concentrated effect on a small number of identifiable whites. 520 F.2d at 127, 429. Here, the very anarchy of the defendant's selection practices guarantees the inability to predict the whites who will be adversely affected. Third., the quota cannot require the placement of an objectively unqualified person. 520 F.2d at 430. Here, the Decree express ly provides that the defendant is not required to place such persons. (JA 490, 497, 498, 506, 511). Under those standards, one quota was affirmed and the other reversed. Plaintiffs do not urge that this Court adopt the Kirkland test, since there are a number of problems with respect to its second standard and the enshrinement of ranking systems not really ad dressed by that court, but note that this case meets the Kirkland standards, whether Kirkland is or is not adopted as the law of this Circuit in a case ill which the facts squarely pose the issue. Cf. Erie Human Relations Comm'n v. Tullio, 493 F.2d 371, 373 (3rd Cir., 1974) , which rejected the contentions that quota relief could only be entered upon (.1) a showing of intentional discrimination and (2) a showing that the selection procedures not challenged in the litigation lire job-related. The imposition of quota relief was clearly an appropriate exercise 457 of discretion under the facts of this case. Neither this Court nor the W See also Judge Clark's statement in NAACP v. Allen that the district court's failure to impose quota relief in Morrow v. Crisler, supra, "itself contravened the Fourteenth Amendment since it operated to perpetuate constitutionally deficient employment practices aid preserve the discriminatory status quo." 993 F.2d at 618. 62 district court have been presented with any alternative "complete relief" for the longstanding pattern of racially-based supervisory judgments shown on the record. 5. The Defendants Objections to the Form of the Quota Relief Entered Herein Are Without Merit- This Court held three years ago in Rock, supra, that a failure to enter the most effective relief must be justified by business necessity. 473 F.2d at 1348-49. Accord, Gamble v. Birmingham Southern R.R. Co., 514 F.2d 678, 684 (5th Cir., 1975). Notwithstanding these holdings, mid notwithstanding the defendant's opportunity to introduce evidence below, it has introduced no evidence of "business necessity" with respect to the form of the quota relief entered below or, for that matter, as to any other part of the Decree. Its objections stand before this Court clothed in rhetoric alone. If this be sufficient, few defendants indeed would ever be enjoined. The defendant first objects to the form of paragraph 5 of the Decree, (JA 493-94), Brief at 39-40, and 45. Its practical- objections are discussed at pp. 52-54, supra. Two additional matters are significant. First, despite the defendant's implied representations, it hires on a fairly constant basis. A relatively small number of jobs arc usually available, rather than hiring occurring irregularly, in large unpre dictable clumps. The defendant's Personnel Manager testified at trial: Q: You often have a number of jobs available, is that correct? A: We have most of the time jobs available, I would say. I wouldn't say a lot of jobs available. (JA 885-86). Second, this is much milder than the traditional form of quota, since it does not provide for any accelerated hiring of blacks; it is not a "catch-up" quota. It prevents ongoing discrimination in hiring and docs nothing further. It lias no adverse effect upon white applicants, other than to deprive them of the benefits of ongoing racial favoritism 63 in hiring. Under the Decree, each white applicant will have precisely the same opportunity to be hired as each black applicant, no less and -- because of the Decree -- no more. The defendant next objects to the form of paragraph 1G. (JA 998) , Brief at 95-96. This requires the defendant to develop an affirmative action program which, if not objectionable, will spell out the actual re quirements of this paragraph. It is important to note that tills paragraph does not in terms require the placement of any set proportion of blacks, but only that "efforts" be made to place blacks in the specified jobs. Judge Dupree did not draw the "one-third" figure "out of thin air", but drew it from paragraph .18 of plaintiffs' original proposed Decree, (JA 3G9) , which based it on plaintiffs' exhibit 7, which showed that 35.1% of the defendant's employees in Roanoke Rapids were black at the time of trial. While granting a temporary absolute preference for blacks in filling these jobs would be permissible under United States v. T.I ,M .E .-D ,C . , 5.17 F.2d 299, 319-20 (5th Cir., 1975), cert, granted, U.S. , 99 U.S. Law Week 36G9 (197G), plaintiffs would have no objection to the modification of this paragraph to require, instead of efforts to place only blacks, the actual placement of one black for every white so placed, on an alternating basis until the goal is met. See Carter v. Gallagher, 952 F.2d 327, 96/ 330-31 (8th Cir., 197.1) (on banc) , cert. den,, 90G U.S. 950 (1972) . 96/ The defendant cites Quarles v. Philip Morris, 279 F.Supp. 505, 508 (E.D.Va., 1968) for the proposition that relief may not be granted because no specific instance has been shown of the denial of a super visory position to a qualified black. The law on this point has evolved substantially since Quarles, and such showings are not required. C,g., Chesapeake & Ohio Ry., supra, 971 F.2d at 586 and 586 note 7; Barnett, supra, 518 F.2d at 599; T . I .M ,C . -D ,C . , supra, 517 I’.2d at 315; United States v. Hayes lnt’1 Corp., 956 F.2d 112, 120 (5th Cir., 1972). Nor may the benefits of affirmative relief be limited to persons specifically identified as victims of past discrimination. Carter v. Gallagher, supra, 952 F.2d at 330; Davis v. County of Los Angeles, F .2d , 13 F.L.P. Cases 1217 , 1222 (9th Cir., 1976). 69 The defendant next objects to the form of paragraphs 28 to 30 of the Decree, (JA 508-10) , Brief at U8-49, but does so only in the most general of terms. The district court's exercise of discretion is amply supported by the considerations that two hundred white supervisors are making personnel decisions with respect to almost six hundred job cate gories , that the form of discrimination being remedied is not likely to alert its victims so that they may complain, that the decisions of this and other appellate Courts bar reliance on the defendant's "good faith", and that the provisions of the Decree must be capable of being effective. The provisions in question meet all of these considerations, and no better provisions have been suggested. Finally, it should be noted that, in cases where the imposition of remedial quotas is appropriate, the district court has traditionally been accorded great latitude with respect to the actual form of the quota. In United States v. Montgomery County Bd. of F,d., 395 U.S. 225 (1969) , the Supreme Court reversed the Fifth Circuit's weakening of a quota ordered by a district court, in large part because of the district court's greater familiarity with the situation being remedied. Nor are remedial goals limited to any specific or pre scribed form. The precise method of remedying past miscon duct is left largely to the broad discretion of the district judge. Rios v. Enterprise Ass'n Steamfitters Local 638 of U.A., 501 F.2d 622, 631 (2nd Cir., 1971); Davis v. County of Los Angeles, supra, 13 F.C.F. Cases at 1222-23. E . The District Court Did Not Abuse Its Discretion With Respect to Any Other Fart of the Decree 1. The District Court Was Not Required to Ignore the Differences Between J.L* 1. Stevens' Racial. Discrimi nation____Against Black Males and its Racial Dis crimination Against Black Females In Chesapeake and Ohio Ry., supra, this Court required the entry of different types of relief with respect to subclasses discriminated against in different ways, and reversed, as "paradoxically unnecessarily broad o r and unduly restrictive", an injunction which did not pay close enough at tention to the distinctions between these subclasses. 471 I'.2d at 588-90. Cf, the Fifth Circuit’s insistence in Swint that an injunctive remedy be tailored so as to concentrate relief among those blacks most likely to have been discriminated against. 539 F.2d at 99-100. The distinction of which the defendant complains is simply a response to this common-sense imperative. 2. The District Court Did Not Abuse its Discretion by Adopting Some of the Defendant’s Suggestions (a) Anti-White Bias The defendant describes the Decree as a "total regime of pro-black and anti-white discrimination" the like of whicli has never been seen in the land. Brief at 50. Among the "principal features" of the "pro-black and anti-white" Decree are the provisions for red-circling (Brief at 47-98) and bumping less senior employees in the event of layoff. (Brief at 49) . At oral argument, the defendant may also include the abolition of departmental, seniority for blacks but not for whites (paragraphs 19-21 of the Decree, JA 503-04) as an example of such "pro-black and anti-white" bias. The defendant is attempting to mislead tills Court. Plaintiffs had originally proposed seniority changes which would have benefitted whites as well as blacks, (JA 374-75), and had originally proposed bumping rights in the event of layoff which would have affected whites as well as blacks. (JA 385). Plaintiffs had no objection whatsoever to the extension of red- circling benefits to whites. These extensions of relief would not have harmed blacks in the slightest and might have led to a readier acceptance of the Decree by white employees. For this reason, the union also supported these extensions. The law is clear, however, that such remedial provisions cannot be entered with respect to any group, not discriminated against, unless the defendant consents to such relief. E .g . , Chesapeake & Ohio Ry., GG supra, 471 F.2d at 588-89; Patterson, supra, 535 F.2d at 2G5. Some employers, interested in a smoothly harmonious integration of decretal terms into the life of their pi tint s, may readily consent. This defendant did not. Instead, it exercised its legal prerogative to veto the extension of such rights to whites, and announced that it would engage in collective bargaining with the union about extending these provisions to whites. See the appended exchange of correspondence, pp. la to 6a, copies of whicli were sent to the court below. The original provisions were changed ac cordingly. (JA 374, 384). The defendant's decision was perfectly proper, and one which it alone could make. What is not proper, however, and indeed is highly improper, is its representation to this Court that the result of its decision is "pro-black and anti-white" provisions. This manner of dealing is extremely unfair to the district court. (b) Training Requirements The defendant objects to the requirement of paragraph 16 that it train blacks for its higher-paying jobs. Brief at 45-46. The training re quirement was proposed by the defendant in its proposed form of Decree. (JA 393-94). At the February 24, 1976 hearing, the defendant admitted in open Court that blacks had not been given the same training opportunities in the defendant's plants as whites, and that this was the reason for the defendant’s training proposal. Training requirements are also a common 47/ element of Title VII relief, and there is no factual or legal basis for 477 Hairston v. McLean Trucking Co., 520 F.2.d 226, 235 (4th Cir., 1975); Russell v. American Tobacco Co., 528 F.2d 357, 364 (4th Cir., 1975); Franks v. Bowman Transportation Co,, supra, 995 F.2d at 920-21; T.I,M.L , - D.C., supra, 517 F.2d at 321; United States v. St. Louis-San Francisco Ry. Co., 464 F .2d 301, 310-11 (8th Cir., 1972) , cert, den., 409 U.S. 1107, 1116 (1973); United States v. Sheet Metal Workers, Local 10, 6 F.E.P. Cases 1036, 1043 (D.N.J., 1973) (special apprenticeship program for over-age blacks and Puerto Ricans); Patterson, supra, 535 F.2d at 265. 67 arguing that the district court's adoption of the defendant’s suggestion was an abuse of discretion. 3. The District Court Did Not Abuse Its Discretion by Entering Any Other Provision of the Decree (a) Red-Circling The red-circling remedy is important because employees transferring to higher-paid jobs must sometimes take pay cuts while they're learning how to perform the new job. In the company's incentive-rate jobs, for example, an employee may be expected to earn at a certain level once the employee has mastered the basic techniques of the job. Until then, basing the employee's earnings on the incentive rates would result in virtually no pay. The defendant has established "floor" pay rates to take care of this situation. Regardless of his or her level of production, an employee or learner In an incentive rate job will not be paid at a rate lower than the "floor". Plaintiffs’ exhibits 25 and 26. (Record Volume X). this "floor" rate is fairly low, Id., and transferring employees will frequently be in jobs already paying more than the "floor" rate. This will retard the progress of affected class members to their "rightful place", and red- circling pay rates is a standard remedy in such situations. If a single class member will be affected by the absence of red-circling, the remedy must bo granted. Swint, supra, 539 F.2d at .100-01. It should be noted that the provision is temporary, and is limited in application to blacks hired before the Decree goes into effect. The defendant's speculation that red-circling will make blacks shiftless is met by the fact that nothing in the Decree prohibits it from 987 Robinson v. Lorillard Corp., 999 F.2d 791, 796, 799 (9th Cir., 1971); Pettway, supra, 999 F.2d at 298; Bethlehem Steel, supra, 996 F.2d at 660, 665; N.h Industries, supra, 979 F.2d at 375-76; Watkins, supra, 530 F.2d at 1173-/9; Rogers v. Intrl Paper Co., 510 F.2d 1390, 1355-56 (8th Cir., 1975), vacated with respect to the denial of back pay, 923 U .S. 809 (1975) . 68 taking disciplinary action against any employee who shirks his or her responsibilities. (b) Bumping Less Senior Employees in the Event of Layoff The defendant complains of paragraph 32 of the Decree, (JA 510-11), but misdescribes the provision. It docs not allow any black employee to exercise any choice of the job to which he or she is re-assigned. That is the defendant’s choice to make, and plaintiffs so stated to the district 49/ court before it entered the Decree. The defendant has already accorded bumping rights to its employees, (Brief at 49) , and the provision in question is simply an expansion of the 50/ jobs into which an affected class member can "bump”. Finding 62 (JA 310-11) indicates that there are many more blacks than whites who have high seniority but are in low-paying jobs. A white employee going "back along the route by which he came to his present job" is likely to wind up in a lesser-paying, predominantly-white job with many persons of low seniority. The existing bump-back right is effective for whites. With a black employee,bumping "back along the route" will land him in an even le'sser-paying job held by many persons with high levels of seniority. The existing bump-back right is thus less likely to be effective for blacks and, when effective, lands them in jobs disdavantageous to those their similarly laid-off white colleagues will obtain under the same system. 'Die W If the defendant desires to have the agreed construction of the Court and of the parties expressly incorporated in the language of para graph 32, its remedy is to move for a clarification pursuant to paragraph 36 of the Decree, (JA 512-13) , not to appeal to this Court. 50/ Layoffs are not made on a plantwide or departmentwide basis, but only from among the employees in a particular job category. (Finding 83; JA 324). 69 present system works precisely by allowing the old racial classifications to reassert themselves, and this is unlawful under the same rationale by which departmental seniority has been held unlawful in the context of discriminatory departmental assignments. E,g,, Swint, supra, 539 F.2d at 98 note 52 and the "legion" of precedents there cited. It also retards the advancement of victims of discrimination to their rightful place, and is unlawful under the same rationale by which "red-circling" pay rates has become a standard remedy. The relief in question is not foreclosed by Patterson. Patterson held "freedom now" permanent bumping of incumbent whites .and males to be impermissible under Title VII and under 92 U.S.C. §1981, 535 P.2d at 267- 70, but the relief in question is quite different. The district court did not create a bumping right, but merely took the bumping right already given employees by the company and modified its application to remedy the two present discriminatory effects of the present policy described above. If Patterson be hold to bar tliis kind of modification to pre-existing bumping rights, it would bar as well any remedy in a case in which an employer allowed only whites to use its "bump-back" rights in the event of layoff and fornuilly barred blacks from participation. Despite Rock and Gamble, the defendant has not even attempted to show business necessity in opposition to this modest change in a pre existing practice. Instead, it complains in general terms that the ex tension applies to jobs the affected class member could perform "with reasonable training". To this there are two responses. First, the defen dant will be deciding the job to which the affected class member will be transferred, and con presumably be counted upon to minimize its own burden. Any irreducible burden would not be large, since the district court found that the defendant uses "informal, on-the-job training" sometimes lasting only "a few days". (Adopted Finding 60; JA 396) . Second , even a showing 70 of "substantial burden" , which the defendant did not even try to make herein, would not constitute a showing of business necessity adequate for the denial of relief. Watkins, supra, 530 F.2d at 1171. (c) Constructive Seniority Under Franks v. Bowman Transportation Co. The defendant complains of the working of paragraph 18 of the Decree (JA 999-503) , Brief at 97, but raised no objection below to the manner in which this provision worked. Nor does it now provide any alternative sug gestion for giving effect herein to the Supreme Court's decision in Franks. The defendant's claim of unfairness is specious. While many whites will have a waiting time more than the white average, an equivalent group of whites will have a waiting time less than the white average. Paragraph 18 will not give any black employee a constructive waiting time less than 51/ the white average. This classwide injunctive relief meets the require ments of Franks, is administrable, and is fair. (d) Other Provisions of the Decree The defendant's brief does not object to any other provision of the Decree. For the convenience of the Court, plaintiffs will briefly outline its various parts. Part I of the Decree (JA 989-93) contains a standard general pro hibition of discrimination, a guarantee that the Decree does not require the placement of objectively unqualified persons, a training provision, general definitions, a provision for the retention of jurisdiction. The retention of jurisdiction is linked to the progress of blacks towards their rightful place, and the defendant in a very real sense will by its acceptance or 517 Cf. this Court's acceptance of classwide approaches to back pay in United Transportation Union and Rock v. Norfolk N Western Ry., 532 F.2d 33G, 39U (9 th Cir., 1975) , cert, den. , U.S. , 99 U.S. haw Week 3592 (197G) . 71 resistance of the Decree determine the length of the retention of juris- 52/ diction. Part II of the Decree (JA 493-95) contains the hiring provisions of the Decree, including the previously-discussed hiring requirements, a requirement that notices of vacancies and their pay rates be posted where applicants will sec them, a provision barring discrimination in waiting periods before hire, and recordkeeping requirements for applicants and 53/ hires. Part III of the Decree (JA 495-99) provides remedies for the com pany’s practice of racially reserving certain jobs for whites and others for blacks, including quota relief and the affirmative action and training program discussed above. Additionally, it provides for the posting of a notice stating the necessity, under the company's present practices, of using a special application form to apply for clerical jobs. It also provides for a determination of the black applicants and employees 527 Retention of jurisdiction to ensure compliance with the Court’s decision is a standard feature of Title VII cases. Drown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 , 1383 (4th Cir., 1972) , cert. den., 409 U.S. 982 (1972); Reed v. Arlington Hotel Co., 476 F.2d 721, 726 (8th Cir., 1973) , cert. den. , 414 U.S. 854 (1973) ; Franks v. Bowman Trans portation Co,, supra, 495 F.2d at 423 ("at least two years”) ; United States v. T.l ,M.E ,-D.C . , supra, 517 F.2d at 322 ("specific. provision should be made to assure continuing power in the District Court to monitor per formance") ; English v. Seaboard Coast Line R.R. Co., .12 F.E.P. Cases 75, 89 (S.D.Ga., 1975) (five years). The industrywide steel consent decree, United States v. Allegheny-Ludlum Industries, Ine. , 517 F.2d 826 , 83 5 (5th Cir., 1975) provides for continuing jurisdiction in the district court for five years. 53/ The posting of such notices will give blacks an opportunity to make immediate complaints if they arc rejected for hire when vacancies are in fact available, or if they are automatically assigned to low-paying jobs when better-paying jobs are available. It will help to avoid prob lems. The recordkeeping requirements ensure the ready accessibility of evidence if problems do still occur. 72 interested in clerical jobs,for the defendant’s inviting them to apply for such jobs, and for their being given written statements of the reasons for their rejection, in the event that they are rejected. It also bars ef- 54/ forts to defeat the relief provided by the Decree. Part IV of the Decree (JA 499-504) contains its provisions on seniority and has been discussed above. Part V of the Decree (JA 504-08) contains job posting, training, bidding, and red-circling provisions. The defendant is also required to prepare and post copies of job descriptions and statements of qualifications, if any. Retreat rights are provided if an employee is unable to perform the new job. Training and red-circling have been discussed above, and there is ample case support for job posting, job descriptions, and bidding re- 55/ quirements. Part VI of the Decree (JA 508-10) contains temporary quota relief ensuring that new black employees will not be discriminated against and that the pay rate disparities against present black employees be elimina ted. Part VII of the Decree (JA 510-11) contains provisions on layoffs, recalls, and "bumping" as an alternative to layoff. w Recruitment programs are a standard part of Title VII relief. Mims v. Wilson, supra, 514 F.2d at 109; Franks, supra, 495 F.2d at 420; E.E.O.C. v. Local 638, Sheet Metal Workers, 532 F.2d 821, 830-31 (2nd Cir., 1976). The requirement of a written statement of reasons for rejection will tend to prevent rejections for frivolous reasons, and is supported by United States v, Jacksonville Terminal Co., 451 F.2d 418, 460 (5th Cir., 1971), cert, den., 406 U.S. 906 (1972). 55/ E .g., Drown, supra, 457 F.2d at 13S3; Patterson, supra, 535 F.2d at 264; Pettway, supra, 494 F.2d at 248-49; Jacksonville Terminal. _ 451 F .2d at '4 5'9; Franks, supra, 495 F.2d at 420; Watkins, supra, ^30 F.2d at 1194; Swint, supra, 539 F.2d at 101-02. Both Patterson and Jacksonville Terminal approved the requirement of job descriptions. Retreat rights were approved in Jacksonville Terminal and Swint. 73 Part VIII of the Decree (JA 511-14) provides a mechanism for the resolution of disputes under the Decree, requires the defendant to appoint an "Equal Employment Opportunity Complaints Officer" to receive and in vestigate complaints, provides for motions to amend, clarify or enforce the Decree, provides a conciliation period for ordinary problems, and appoints the United States Magistrate for that district as a Special 56/ Master for the administration of the Decree. Part IX of the Decree (JA 514-18) provides for recordkeeping and the regular provision of information with which to assess the defendantTs com pliance with the Decree. In part, this provision stems from the inordi nate difficulty over the course of this litigation in obtaining infor mation from the defendant. Without it, the Decree could not be enforced. This Part also provides for the distribution of copies of an outline of the Decree to class members, and for the publication of the outline in the local newspaper. Class members must know their rights under the Decree in order 57/ to take advantage of them. Part X of the Decree provides for the reimbursement of part of plaintiffs' out-of-pocket expenses incurred in reasonable representation of the class. The defendant has not yet objected to the amount of the award. By written agreement of the parties, the defendant lias the right to object to specific items included within this figure even after payment, if the objections are made within a reasonable time. If the district court 56/ The use of in Hairston v. McLean T.I.M.E.-D.C., supra, Metal Workers, supra, Union of N.Y. & Vic., States v. East Texas Special Masters or of Administrators has been approved Trucking Co., 520 F.2d 226, 238 (4th Cir. , 1975); 517 F .2d at 324 note 45; E.E.O.C. v. Local 638, Sheet 532 F .2d at 829; Patterson v. Newspaper X Mail Del. 384 F.Supp. 585, 593~-95 (S.D.N.Y., 1974); and United Motor Freight, 10 F .E . P. C. ases 971, 979 (N. 1). lex. , 1974). 57/ This Court held in Russell v. American Tobacco Co., sugra, 528 F.2d at 364, that district courts possess broad discretion with respect to recordkeeping requirements and the provision of information. Accord, Jacksonville Terminal, supra, 451 F.2d at 460. Both Jacksonville Terminal Imd Swint, supra, 539 F.2d at 101, required that class members be informed of their rights. 74 ultimately upholds objections as to any amounts, such amounts will be de ducted from subsequent awards. This agreement was made for the defen dant’s benefit, on the basis of its representation that it had not had enough time to examine plaintiffs’ statement of expenses before entry of the Decree. The amount awarded therefore does not seem to be before this Court. In any event, the district court had authority to make an award 58/ of out-of-pocket expenses. None of these provisions constituted an abuse of discretion. F . The District Court Used an Incorrect Legal Standard in Determining Whether the Plaintiffs Had established a Prima Facie Case as to their Personal Claims 1. The District Court Erred by Failing to Consider the Statistical Evidence and the Evidence of Company Practices There are ample indications that the district court decided the _B87 Fairley v. Patterson, 493 F.2d 598 , 607 note 17 (5th Cir., 1974) . Additional support for the award is provided by the Civil Rights Attorneys' Fees Awards Act of 1976, Pub.L. 99-559, 90 Stat. 2641, which provides for the award of attorneys fees in cases brought under §1977 of the Revised Statutes, a provision which includes 42 U.S.C. §1981. Rep. Drinan, the floor manager of the legislation in the Mouse , stated during debate that an award should encompass out-of-pocket expenses: I should add that the phrase "attorney’s fee" would include the values of the legal services provided by counsel, including all incidental and necessary expenses incurred in furnishing effective and competent representation. 122 Cong. Rec. H 12160, col. 1 (daily ed., October 1, 1976). All employment practices challenged herein were challenged under both Title VII and §1981. Pub.L. 94-559 applies to eases pending in Court on the date of enactment and to services performed in such cases prior to that date; the House rejected, 104 to 268, a motion offered by Rep. Ash- brook which would have had the effect of limiting the measure to cases filed after the date of enactment. 122 Cong. Rec. H 12166 (daily ed., Oc tober 1, 1976) . See also 122 Cong. Rec. H 12155, col. 3 (remarks of Rep. Anderson) (Id.) ; 122 Cong. Rcc. H 12160, col. 1 (remarks of Rep. Drinan) (Id.); Bradley v. School Bd. of City of Richmond, 4.16 IJ.S. 696 , 711-21 (1974) . 75 personal claims of the plaintiffs in isolation from the evidence, and its own findings, with respect to the class claims. First, nowhere in its discussion of the plaintiffs' personal claims does it even mention any evidence other than the plaintiff's individual testimony, individual personnel records, and individual E.E.O.C. charges. Its discussion of plaintiff Sledge's claim makes no mention of the finding that the job category to which the defendant failed to recall her was still largely segregated for whites (Finding 82(d) ; JA 323) . Its discussion of hiring claims doesn't even mention its findings of class discrimination in hiring. Its discussion of job assignment claims is similarly isolated from the rest of the case. Second, the district court entered findings as to the personal claims of the plaintiffs which were inconsistent with its findings on class claims. The court held that Marie Robinson and Herman Jones had failed to prove their claims because they introduced no evidence that they were qualified for higher-paying jobs. (JA 282 , 288-89) . This necessarily implies that there were objective qualifications that had to be met, such as there are in a case involving over-the-road trucking jobs. Cf. Barnett, supra, 518 F.2d at 546. The district court had, however, reached a contrary result in considering the class claims of discrimina- 59/ tion. The district court also referred to the absence of evidence of 597 In considering the class claims of discrimination, the district court had found "that most of the job categories in these plants can be filled by any willing, able-bodied person", (Adopted Finding 26; JA 340) , that "previous experience is desirable, but unnecessary" and that "[m]ost new employees are in fact inexperienced, and must be trained", (Adopted Finding 27; JA 340), that "[m]ost of the job categories in these plants ... do not require specific minimum levels of education for successful performance" (Adopted Finding 29, JA 340) , that " [m] ost of the job cate gories in these plants are 'entry level' in that they can be filled by persons hired off the street", (Adopted Finding 31, JA 341), and that most applicants and most employees had no previous textile employment ex perience. (Adopted Findings 59, 61 and 62; JA 3*16-47). 76 vacancies, or of vacancies in higher-paying jobs, when discussing the 60/ claims of Lucy Sledge and of Marie Robinson, (JA 288-90) , but evidence outside their personal testimony and personal records amply filled this 61/ gap. Third, the colloquy between the Court and counsel for the defen dant at the May 9, 1976 hearing strongly suggests that the district court believed it could not consider the entire record in deciding plaintiffs’ 62/ personal claims. (JA 1699-51). The district court erred in so restricting its view of the evidence relevant to plaintiffs’ personal claims. Even in an individual, non-class Title VII suit, evidence as to a company's ’’general policy and practice with respect to minority employment" and statistics "may be helpful to a determination of whether [the action affecting the plaintiff] conformed to a general pattern of discrimination against blacks.” McDonnell Douglas W The district court referred to vacancies occurring on the date of Lucy Sledge's applications, but the class findings establish that ap plicants were ordinarily hired several weeks after they filed their appli cations. (Findings 89, 90; JA 326). Again, only a severing of the evi dence can explain the contradiction. 61/ See the Statement of Facts at 26 and at 37-39, supra. 62/ Throughout this litigation, plaintiffs have consistently urged that the evidence showing discrimination against the class must also be considered in the determination of plaintiffs' personal claims. See plaintiffs' Reply to the Defendant's Post-Trial Brief (filed February 20, 1973) at 2.1-22, and plaintiffs' Request for Reconsideration (SJA 26-30). 77 Corp. v. Green, 411 U.S. 792, 804-05 (1973). The district court's failure to consider any such evidence was similar to the exclusion of evi dence, disapproved by this Court in United States v, Dillon Supply Co., 429 F.2d 800, 803-04 (4th Cir., 1970) . In effect, it would bar all claims of discrimination in which the complainant did not personally know all of the facts necessary to his or her claim -- those in which some elements of proof were dependent on information obtained in discovery, or obtained 64/ from other witnesses. Such a view cannot be sustained. 2. The District Court Erred by Placing the Burden on Plaintiffs to Prove Specific Racial Motivation on the Part of the Defendant as to their Personal Claims 63/ In ruling against plaintiffs Lucy Sledge and Thomas Hawkins, the district court expressly relied on the absence of direct evidence of the 637 Additional, cases supporting this proposition are Graniteville Co. (Sibley Div.) v. E.E.O.C., 438 F.2d 32 , 42 (4th Cir., 1971) ("Evidence of plant-wide discrimination seems most relevant to a charge ... that particu lar action taken was racially motivated."); Jones v. Lee Way Motor Freight, 431 F.2d 245, 247-48 (10th Cir., 1970) (cited in McDonnell Douglas, 411 U.S. at 805); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 425 (8th Cir., 1970) ("Discrimination, or conversely fairness, in general hiring practices often indicates whether an employer has discriminated against a particular applicant for employment."); Peters v, Jefferson Chemical Co., 516 F.2d 447, 450-51 (5th Cir., .1975) ("The judge also incorrectly opined that statistics have little probative value in a non-class action. ... [This statement] might indicate an erroneously limited appraisal of the fact situation being judged."); Muller v. United States Steel Corp, , 509 l'.2d 923, 928 (10th Cir., 1975). Other district courts in North Carolina have followed the proper standard, and considered all evidence of record when passing upon the merits of individual claims. Cathey v, Johnson Motor Lines, 398 F.Supp. 1107, 1118-19, 1121 (W.D.N.C., 1974); Johnson v. Ryder Truck Lines, 12 F.E.P. Cases 895, 906 note 1 (W.D.N.C., 1975); Bradshaw v. Associated Transport, 12 F.E.P. Cases 859, 863-64 (M.D.N.C., 1974). 64/ This Court has "observed that proof of overt racial discrimina tion in employment is seldom direct." Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 13S2. Cf. Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966), which held that the plaintiff in a shareholder's derivative suit was not required to have personal knowledge of the matters alleged in the Complaint in order to verify it, but was entitled to rely on the investigations and knowledge of others. 78 defendant's specific racial motivation against them. (JA 281, 290). There is no reason to believe that the district court failed to apply such an evidentiary requirement to the other plaintiffs as well. The placement of the burden of proof was improper. This Court has repeatedly held that, where a background of discrimi nation has been shown, it is not the plaintiff's burden to prove racial motivation, but the defendant's burden to prove nonracial motivation. Chambers v. Hendersonville City Bd. of Id., 369 F.2d 189, 192 (9th Cir., 1966) (en banc) ("Innumerable cases have clearly established the principle that under circumstances such as this where a history of racial discrimi nation exists, the burden of proof has been thrown upon the party having the power to produce the facts.") ; Cypress v. Newport News General & Non sectarian IIosp. Ass'n., 375 F.2d 698, 655 (9th Cir., 1967) (en banc) ("To cast this burden upon the plaintiffs would seriously attenuate the doc trine of equal access ... by effectually limiting relief to the rare case 66/ where the defendant is willing to admit its wrongdoing."); Wall v. Stanly County Bd. of Ed. , 378 F.2d 275, 278 (9th Cir., 1967) (en banc) ; North Carolina Teachers' Ass'n v. Asheboro City Bd. of Ed., 393 F.2d 736, 795 (9th Cir., 1968) (en banc) (Burden of proof placed on defendant "after the initial demonstration of a background of discrimination"); Chesapeake & Ohio Ry. , supra, 971 F.2d at 586; United States v. Chesterfield County School Dist., 989 F.2d 70, 72-73 (9th Cir., .1973); Jones v. Pitt County Bd. of Ed., 528 F.2d 919, 917 (9th Cir., 1975). In McDonnell Douglas, 91.1 U.S. 6h7 The district court imposed no such requirement as to the class claims. (JA 331) . Cf. Brown, supra note 69. 65/ 66/ 79 at 802, the Supreme Court specified a series of showings which would be sufficient to raise an inference of discrimination in an individual, non class action. They did not include a showing of racial motivation. When the showings were made, the Court held, the burden shifted to the defen dant to prove "some legitimate, nondiscriminatory reason” for the personnel action in question. The district court's placement of the burden of proof cannot be sus tained. 3 District Court Erred By Placing the Burden on Plaintiffs to Prove their Specific Qualifications for the Defendant's Jobs In ruling against plaintiffs Herman Jones and Marie Robinson, the district court expressly relied upon the absence of any evidence that they were qualified for higher-paying jobs. (JA 282 , 288-89) . There is no reason to believe that the district court failed to apply such an evi dentiary requirement as to the other plaintiffs as well. This placement of the burden of proof was improper. Plaintiffs have proved, and the defendant has now admitted in its brief at 3 9 , that virtually anyone can be hired off the street to perform most of the defendant’s jobs. Plaintiffs have also proved that the defen dant discriminates against blacks, as a class, in both hiring and job assignment. Under these circumstances, the defendant has the burden of proving, first, the existence of specific job qualifications which are both job-related and have uniformly been applied to whites and, second, that an individual plaintiff lacks such specific qualifications. Franks v. Bowman Transportation Co,, supra, 424 U.S. at 773 note 32; Hairston, supra, 520 F.2d at 232; United Transportation Union and Rock, supra, 5i2 P.2d at 341; Baxter v. Savannah Sugar' Refining Corp., 495 F.2d 437 , 443-44 (5th Cir., 1974), cert, den., 419 U.S. 1033 (1974). The district court's placement of the burden of proof cannot be sustained. - 80 - G . When Tested by Proper Legal Standards, the llneontroverted Evidence Establishes that Plaintiffs Have Proved. Discrimination Against Them The Supreme Court held in McDonnell Douglas that an individual in a non-class action may establish a prima facie case: ... by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802 (footnote omitted). Despite the fact that this is a class 67/ action and that such individual showings are not required, the uncontro verted evidence in the Statement of Facts establishes that this standard has been met as to each plaintiff. E,g., East v. Romine, Inc., 518 F.2d 332, 338 (5th Cir., 1975). Moreover, the "background of discrimination" shown herein is sufficient to bring their claims within the Chambers line of cases. The defendant, which alone was in a position to state its reasons for its rejections of the unhired applicant plaintiffs, and its reasons for the job assignments of the employee plaintiffs and for its failure- to promote them, said nothing. "Silence then becomes evidence of 677 The Supreme Court said in Franks, 424 U.S. at 772: But petitioners here have carried their burden of demon strating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be upon respondents to prove that individuals who re apply were not in fact victims of previous hiring discrimi nation. And see United Transportation Union and Rock, supra, 532 F.2d at 341. The McDonnell Douglas standards have been held not to apply to class actions or "pattern and practice" actions in Rodriguez v. East Texas Motor Freight, 505 F .2d 40, 55 (5th Cir., 1974), ccrt. granted, U.S. , 44 U.S. Law Week 3670 (1976) , and T.I.M.E.-D.C., supra, 517 F.2d at 315-16. But sec United States v. Hazelwood School Dist., supra, 534 F.2d at 814. 81 the most convincing character." Interstate Circuit v. United States, 68/ ~ 306 U.S. 208, 226 (1939). These dismissals should be reversed. The district court advanced particular justifications for findings of nondiscrimination as to plaintiffs Lucy Sledge and Thomas Hawkins which have not been addressed above. First, the district court relied upon the fact that the defendant was hiring blacks in substantial numbers at the time of Lucy Sledge’s difficulties in obtaining re-employment. This is tied up with the district court’s view that plaintiffs hadn't proved racial motivation but, additionally, overlooks the district court's own finding that the job from which she had been laid off in 1968 was still largely segregated for whites and that only white hires were initially assigned to her old job in 1969. Statement of Facts at 25, 28. Moreover, the fact that some other blacks were being hired and placed is not a defense to a claim that her recall rights arid right to re-employment were violated because of her race. Franklin v. Troxel Mfg. Co., 501 F.2d 1013, 1016 (6th Cir., 1974); cf■ Patterson, supra, 535 F.2d at 275 note 18. Second, the district court stated at the February 24, 1976 hearing that there was no evidence to show when she moved to New Jersey. Since there is uncontroverted evidence that she lived in Roanoke Rapids during the period for which discrimination is claimed, and since there is no evidence to support a finding of nonavailability if one had been made, this is not sufficient to bar her claim. ... [W]hen the uncontroverted evidence supporting a regis trant's claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of Cf. Ward v. Appricc, 6 Mod. 264 (1705) : ... [I] f very slender evidence be given against him, then, if lie will not produce his books, it brings a great slur upon his cause. 82 suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice. Dickinson v. United States, 346 U.S. 389, 397 (1953). Third, the district court did not consider plaintiff Thomas Hawkins to be a bona fide appli cant, based on no more than the "suspicion and speculation" condemned in Dickinson. This was improper. Even assuming arguendo that he was only a "tester" -- which he was not -- this is not a defense to liability, but only to back pay. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir., 1971); Bradshaw v. Associated Transport, supra, 12 F.E.P. Cases at 864-65. Plaintiffs seek reversals as to all three of these matters. If this Court considers these last two matters to be sufficiently supported in the record to preclude reversal, it must yet be remembered that the questions of plaintiff Sledge’s availability and of plaintiff Hawkins' bona fides were not reasonably in issue at the trial. Both due process and basic fairness require that the dismissals be vacated as to these two plaintiffs, and that their claims be remanded for an evidentiary hearing at which they will have the opportunity to disprove, by direct testimony, both of the inferences drawn by the district court. CONCLUSION Title VII was enacted on July 2, 1964 and became effective a year later. The record in this case establishes that, at the J.P. Stevens facilities in Roanoke Rapids, the effectiveness of this statute was more a matter of theory than of reality. On June 25, 1976 , almost twelve years after its enactment, the district court took Title VII out of the realm of the theoretic and the abstract, and made it a concrete reality for the black applicants and employees of J.P. Stevens. The effectiveness of Title VII at these facilities should not longer be delayed. Plaintiffs pray that the stay be dissolved immediately after the argument of this 83 case, and that the Decree be affirmed. For themselves, they pray that the dismissals of their personal claims be reversed. Respectfully submitted, RICHARD T. SEYMOUR 316 Southern Building 1425 H Street, N.W. Washington, D.C. 20005 T. T. CLAYTON Clayton & Ballance 307 West Franklin Street Warrenton, North Carolina 275S9 Counsel for Plaintiffs-Appellees in No. 76-1988; and Counsel for Plaintiffs-Appellants in No. 76-2150 Dated: November 30, 1976 Of Counsel: RICHARD B. SOBOL 910 Seventeenth Street, N.W. Washington, D.C. 20006 JACK GREENBERG 0. PETER SHERWOOD 10 Columbus Circle, Suite 2030 New York, New York 10019 JULIUS CHAMBERS Chambers, Stein, Ferguson & Becton Suite 730 East Independence Plaza 951 South Independence Boulevard Charlotte, North Carolina 28202 84 a / l£ u m 3 1 6 S O U T H E R N B U IL D IN G 1423 H STR E E T . N. W. W A S H IN G T O N . D. C. 2 00 03 D E N IS E G. D E N G L E R ,202) «36- «370 A S S I S T A N T March 19, 197G R ichard T. S eymour Whiteford S. Blakeney, Esq. Blakeney, Alexander & Machen 39-50 NCNB Plaza Building Charlotte, North Carolina 28202 Re: Sledge v. J.P. Stevens & Co., Inc. C.A. No. 1201 (E.D. N.C.)_________ Dear Mr. Blakeney: I was surprised by your objection to paragraphs 23, 90 and 91 of plaintiffs’ proposed Decree. These paragraphs had originally been drafted to provide relief only to black employees, and were expanded to include whites at your suggestion. I don’t mean to suggest that the defendant ever consented to the entry of relief to anyone along the lines of these paragraphs, but simply that if such relief were to be ordered for anyone, the defendant preferred that it be entered for all employees rather than just for blacks. My understanding of the law, particularly as explained by Patter'son, is that the defendant lias an absolute right to insist that such relief be extended only to the members of either subclass of black employees. Without the defendant's consent, therefore, the relief set forth in these paragraphs should be so limited. I don’t think that the defendant should necessarily be bound by your prior suggestion, but do think it necessary to have a clear statement of the defendant's position. To avoid delay in the Court's consideration of injunctive relief herein, plaintiffs propose that the Court consider and, if appropriate, enter the proposed Decree in its present form, on the understanding that the scope of application of these three paragraphs will be limited if the defendant so desires. I’ll submit revised pages effectuating the defendant’s wishes as soon as I receive a statement of position. In this way, the Court would not have to delay decision while the company deter mines its position. Very truly yours, Richard T. Seymour cc: Hon. Franklin T. Dupree, Jr. Jonathan Harkavy, Esq. Henry Woicik, Esq. T. T. Clayton, Esq. Richard B. Sobol, Esq. - la - f a / 1/2*41* 3 1 6 S O U T H E R N B U IL D IN G 1425 H S T R E E T . N. W. W A S H IN G T O N . D. C. 2 0 0 0 5 D E N IS E G. D E N G L E R <2021 630-0370 A S S I S T A N T R ichard T. S e y m o u r March 26, 1976 Whiteford S. Blakeney, Esq. Blakeney, Alexander & Machen 3450 NCNB Plaza Building Charlotte, North Carolina 28202 Jonathan Harkavy, Esq. Smith, Patterson, Follin, Curtis & James 7Oh Southeastern Building Greensboro, North Carolina 27401 Re: Sledge v. J. P. Stevens & Co., Inc. C.A. No. 1201 (Wilson Division)____ Dear Sirs: I have enclosed my draft of substitute pages 5, 10 through 10b, and 19. These pages would conform the proposed relief herein to the re quirements of Franks v. Bowman Transportation Company, U.S. (1976) , and establish a l argely extrajudicial procedure for determining constructive seniority dates, with only the disputed determinations having to be referred to the Special Master. These pages also propose language making clear that the seniority remedies herein would apply only to blacks, if such is the defendant’s wish. Mr. Clayton and I will be meeting with Mr. Blakeney in Charlotte on Thursday, April 1, at 3:00 P.M. The meeting will primarily concern the manner of handling back pay herein, but may involve these other matters as well. Very truly yours, Richard T. Seymour Enclosures cc: Hon. F. T. Dupree, Jr. (w/o end.) Henry Woicik, Esq. (w/encl.) T. T. Clayton, Esq. 2a S&tor~f a/ l/ L . 3 1 6 S O U T H E R N B U IL D IN G 142 5 H S T R E E T . N. W. W A S H IN G T O N . D. C. 2 0 0 0 3 D E N IS E G. D E N G L E R ,202) ®30-«37O A S S I S T A N T April 10, 1976 R ichard T. S e y m o u r Honorable Franklin T. Dupree, Jr. United States District Judge P.0. Drawer 27585 Raleigh, North Carolina 27610 Re: Sledge v. J. P. Stevens & Co., Inc. C.A. No. 1201 (E.D.N.C.)________ _ Dear Judge Dupree: The defendant in this case has decided that any seniority modifications to he imposed by the Decree should be imposed only as to blacks, and all parties agree that the defendant has the legal right to insist that such relief be limited to blacks. The defendant and the union may, of course, agree in collective bargaining to the extension to whites of the changes made for blacks in paragraphs 22, 23, 4-0, and 4-1 of plaintiffs' proposed Decree. The parties have also agreed on procedures for the establishing of constructive seniority dates, to comply with the holding of Franks v. Bowman Transportation Co. , U .S. ,94 U.S. Law Week 4356 (1976) . This procedure is set forth in new paragraphs 21A (a) through 21A (d) . New paragraph 4(g) defines the term "seniority" to include constructive seniority dates, and new paragraph 21A (e) provides that such constructive seniority dates shall be used for all purposes. Paragraph 23 lias been modified to take account of Franks, by substituting the phrase "present black employee" for the phrase "such person" in the third line. Substitute pages of the proposed Decree, incorporating the above changes, are enclosed herewith. It has recently occurred to plaintiffs that it may be necessary to file a Motion for Entry of Their Proposed Decree , in order to have a right to appeal 'a denial of injunctive relief under 28 U.S.C. §1292 (a) (1) . Plaintiffs are today filing such a Motion, to which is attached an up-to-date edition of plaintiffs’ proposed Decree. 3a Hon. Franklin T. Dupree, Jr. April 10, 1976 Page 2 Plaintiffs are still working on the Request for Reconsideration the Court suggested that we file. We regret the delay, but remedial proceedings herein and in another case just decided have consumed all available time. We hope to file the document within a week. Enclosures cc: Whiteford S. Blakeney, Esq. Henry C. Woicik, Esq. Jonathan R. Harkavy, Esq. T. T. Clayton, Esq. Richard B. Sobol, Esq. Julius Chambers, Esq. Very truly yours R j - ^ l l C X J . U . JL . U C J I l l U U i . Ba S'BLAK J . . . A U X A N O C R . J • ERNEST w- MACHEN'BBOWH_H^f^ELL j O M N O. P O L L A R O W.LUIAM L . » “ TEN w. T. JR‘ FY A L E X A N D E R & M * = H E N B l*“e w » » ‘“ AT LA“ OTTt S S T - 2eoC H A R L O T T E , April 28, 19^6 l I I 1 I I I Richard T. Seym our, Esq- t f e T o ^ n ^ " ; 1425 II Street, N. Washington, b>* In H e: i\/r Pledge, et 3-1 vS * Lucy M. bL & Inc.J# P. Stevens & *Dear Mr. Seymour: 0 . * • - . to some of the observations 1 want to add set forth in your letter ^ ln th* c « « ̂ cre. That letter stab"Modifications to be impose tQ me , ,._ + anY seniority ̂ , n That phrasing anvthing 3-s ---------- * your letter re ^ haVe been p nl0n a contract not been achieve . ^^ further state* ttet ^ J ^ t i v e „ forth E s s : - ' = r prevent confusion. _ Sa As pointed out above, the defendant is acquiescing in a decree abolishing departmental seniority and directing plant seniority, which the defendant accepts as being within the Court's authority to require in behalf of blacks in this case - and which, incidentally, may be more than is required by the recent holding of the Supreme Court in the case of Franks vs. Bowman Transportation Co. I have also stated to you that the defendant will certainly cooperate in the ascertaining, from its records, what are the employees' plant seniority dates. I have certainly not agreed, however, to whatever may be contained in "new paragraphs 21A(a) through 2lA(d)" of your proposed decree. It may well be, as I have stated, that upon carefully correct interpretation of your letter it is not to be construed as saying that I have agreed to those paragraphs of your proposed decree, but I do want to make it expressly and specifically clear that that is not what I have agreed to. What I have agreed to is that the defendant will cooperate and assist in the ascertainment of the employees' respective plant seniority dates. Very truly yours, BLAKENEY, A L E X A N D E R & MACHElf WSB:ig CC: Hon. Franklin T. Dupree, Jr. CC: T. T. Clayton, Esq. CC: Jonathan R. Harkavy, Esq. 6a TEXT OF THE CIVIL RIGHTS ATTORNEY’S FEES AWARDS ACT OF 197G Pub.L. 94-559, 90 Stat. 2641 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as "The Civil Rights Attorney's Fees Awards Act of 1976". Sec. 2. That the Revised Statutes section 722 (42 U.S.C. 1988) is amended by adding the following: "In any action or proceeding to en force a provision of sections 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes, title IX of Public Law 92-318, or in any civil action or proceeding, by or on behalf of the United States of America, to en force, or charging a violation of, a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs". 7a - STATEMENT PURSUANT TO LOCAL RULE 17 The undersigned counsel hereby certifies that lie knows of no corporate affiliation or financial interest required to be disclosed by Rule 17 of the Rules of the United States Court of Appeals for the Fourth Circuit. RICHARD T. SEYMOUR 316 Southern Building 14-2 5 H Street N.W. Washington, D.C. 20005 (202) 638-6370 Counsel for Plaintiffs-Appellees in No. 76-1988; and Counsel for Plaintiffs-Appellants in No. 76-2150. Dated: November 30, 1976