Morgan v. Virginia Transcript of Record

    APPENDIX

Supreme Court of the United States

OCTOBER TERM, 1969

No. 1405

WILLIE S. GRIGGS, ET AL., 

PETITIONERS

vs.

DUKE POWER COMPANY, A CORPORATION, 
RESPONDENT.

OF WRIT OP CERTIORARI TO THE UFITED STATES 
COURT OP APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR CERTIORARI FILED APRIL 9, 1970 
CERTIORARI GRANTED JUNE 29, 1970



I N D E X
PAGE

Complaint ...................................................................- 3a

Answer .............................................. .........-.................. 10a

Plaintiffs’ Motion for Leave to Amend Complaint..... 12a

Order Allowing Amendment to Complaint.............—... 14a

Answer to Amended Complaint ................. ..... ......... 15a

Plaintiffs’ Motion for Leave to Amend Complaint .... 16a

Order Allowing Amendment to Complaint ................ 17a

Answer to Amended Complaint ................. ................  18a

Order Allowing Class Action ................... ............ —  19a

Motion to Dismiss as a Class Action ................... .....  21a

Affidavit of A. C. Tides ............................................... 22a

Motion to Dismiss ....................... ...............................  24a

Memorandum Opinion by Gordon, D.J.......................  26a

Judgment ........................................................................  43a

Notice of Appeal ............................................................ 44a

Transcript of Hearing February 6, 9, 1968 ......... ......  45a

Motion to Dismiss ..............................   204a

Opinion by the United States Court of Appeals for the 
Fourth Circuit, January 9, 1970 .... ................. ...... 206a

Order Allowing Certiorari, June 29, 1970 ..................  251a

Relevant Docket Entries ..................................... -..........  la



11

T estimony
page

Plaintiffs’ Witness:
Richard S. Barrett—

Direct ..................................................... 117a, 189a
Voir Dire ....... ................................................  124a
Cross ............................................................... 148a
Redirect ..................................... -........... 125a, 191a

Defendant’s Witnesses:
A. C. Thies—

Direct .............................................................  54a
Cross ...................................................... 94a, 195a

Dr. Dannie Moffie-—
Direct .............................................................  162a
Cross ...............................................................  175a

EXHIBIT VOLUME

P laintiff’s E xhibits

Exhibit: page

1—Charge of Discrimination..........................  lb
9—Decision of Equal Opportunity Commission .... 2b

10— Letter dated September 9, 1966 .................... 5b
11— Interrogatories .............................................  6b

Answers to Interrogatories .....................  16b
Additional Answers to Interrogatories .... 26b
Affidavit of A. C. Thies.......................... 29b, 31b
Certificate of Service..............................30b, 32b

Employer Information Report EEO-1...... 33b



Ill

PAGE

14— Excerpts from Deposition of Kenneth Austin 110b

15— Excerpts from Deposition of A. C. Thies . 118b
16— Excerpts from Deposition of J. D. Knight .... 124b
30— Excerpts from Deposition of C. R, Rollins .... 125b
31— Dan River Employees’ Qualifications........... 126b
32— Excerpts from Deposition of Lewis Hairston,

Robert A. Jumper, C. E. Purcell and H. E.
Martin ...........................................    128b

33— Guidelines on Employment Testing Proce­
dures .............................................................  129b

D ependant’s E xhibits
Exhibit:

1—Personnel Promotion Policy............................  137b
3— Minimum Occupational Scores....................   138b
4— Test of Mechanical Comprehension (Form

AA) ........................................   i39p

5— Extracts from EEOC Digest of Legal Inter­
pretations .............................      147b



Relevant Docket Entries

P art I

Complaint tiled 20 October 1966.
Answer tiled 14 November 1966.

Plaintiffs’ Motion to Amend Complaint filed 7 April 1967.
Order of the Court allowing amendment to complaint filed 

12 April 1967.

Defendant’s Answer to Amended Complaint filed 14 April 
1967.

Plaintiffs’ Motion to Amend Complaint filed 13 June 1967.
Order of the Court allowing amendment to complaint filed 

21 June 1967.

Defendant’s Answer to Amended Complaint filed 6 July 
1967.

Plaintiffs’ Interrogatories Numbered 1 through 39 filed 
18 January 1967.

Defendant’s Answers to Interrogatories Numbered 1 
through 39 with exception of those previously objected 
to filed 1 March 1967 (Also Plaintiffs’ Exhibit Num­
ber 11).

Defendant’s Additional Answers to Interrogatories Num­
bered 8, 13, 14, 17, 20, 21 and 35 filed 20 March 1967 
(Also Plaintiffs’ Exhibit Number 11).

Order of the Court maintaining action as a class action 
filed 19 June 1967.

Defendant’s Motion to Dismiss as a Class Action filed 
15 May 1968.

Defendant’s Motion to Dismiss filed 15 May 1968.



2a

Memorandum Opinion of the Court filed 30 September 1968, 
Judgment of the Court filed 9 October 1968.
Notice of Appeal filed 18 October 1968.

P art II
Plaintiffs’ Exhibits Numbered 1 through 34 with the ex­

ception of exhibit number 11 which may be found in 
Part I of the Record on Appeal.

Defendant’s Exhibits Numbered 1 through 5.

P art III

Court Reporter’s Transcript of Testimony in 2 Volumes.

Relevant Docket Entries



3a

Complaint
(Filed October 20, 1966)

I n  the

U nited S tates District Court 

F or the

Middle D istrict of N orth Carolina

Greensboro D ivision

Civil A ction 
No. C-210-G-66

W illie S. Griggs; J ames S. T ucker; H erman E. Martin; 
W illiam C. P urcell; Clarence M. J ackson; Robert A. 
J umper; Lewis H. H airston, J r.; W illie R. B oyd; 
J unior B lackstock; J ohn D. H atchett; Clarence C. 
P urcell ; E ddie Galloway ; and E ddie W. B roadnax,

Plaintiffs,
v.

D uke P ow er  Company, a corporation,

Defendant.

I.

Jurisdiction of this Court is invoked pursuant to 28 
U. S. C. §1343 (4) and 42 U. S. C. §2000e-5(f). This is, a 
suit in equity authorized and instituted pursuant to Title 
VII of the Civil Rights Act of 1964, 42 U. S. C. §§2000e 
et seq. Jurisdiction of this Court is invoked to secure 
the protection of and redress the deprivation of rights 
secured by 42 U. S. C. §§2000e et seq., providing for in­



4a

junctive and other relief against racial discrimination in 
employment,

II.
Plaintiffs bring this action on their own behalf and on 

behalf of other persons similarly situated who are em­
ployed by defendant Duke Power Company at its Draper, 
North Carolina plant, pursuant to Rule 23(a) and (b) 
of the Federal Rules of Civil Procedure. There are com­
mon questions of law and fact affecting the rights of other 
Negroes of the class who are and have been limited, classi­
fied and discriminated against in ways which deprive and 
which tend to deprive them of equal employment oppor­
tunities and otherwise affect their status as employees 
because of race and color. These persons are so numerous 
as to make it impracticable to bring them all before this 
Court. A common relief is sought and the interests of 
the class are adequately represented by plaintiffs.

III.
This is a proceeding for injunctive relief, restraining 

defendant from maintaining any policy, practice, custom 
or usage of: discriminating against plaintiffs and others 
of their class because of race with respect to compensations, 
terms, conditions and privileges of employment and limit­
ing, segregating and classifying employees of defendant 
in ways which deprive plaintiffs and other Negro persons 
similarly situated of employment opportunities and other­
wise adversely affect their status as employees because of 
race and color.

IV.
Plaintiffs Willie S. Griggs, James S. Tucker, Herman E. 

Martin, William C. Purcell, Clarence M. Jackson, Robert

Complaint



5a

A. Jumper, Lewis H. Hairston, Willie R. Boyd, Junior 
Blackstock, John D. Hatchett, Clarence C. Purcell, Eddie 
Galloway, and Eddie W. Broadnax are Negro citizens of 
the United States, residing in Rockingham County, North 
Carolina. Plaintiffs and the class they represent are 
presently employed by defendant.

V.

Defendant Duke Power Company is a corporation in­
corporated and doing business pursuant to the laws of the 
State of North Carolina. The defendant operates and 
maintains plants and other facilities located in Draper 
and other cities of North Carolina. The defendant is an 
employer within the meaning of 42 U. S. C. §2000e-(b) 
in that the Company is engaged in an industry affecting 
commerce and employs more than 100 persons.

VI.
Defendant has pursued and is presently pursuing a 

policy, practice, custom and usage of discriminating against 
and limiting the employment and promotional opportunities 
of plaintiffs and other Negro employees of defendant solely 
because of race or color.

A. Defendant has followed and is presently following a 
policy and practice of hiring and limiting its Negro em­
ployees to menial and low paying jobs and paying them 
less wages than white employees performing the same or 
similar work.

B. All Negro employees are limited primarily to the 
coal handling department and are classified as semi-skilled 
or common laborers. As such, they are not allowed or 
permitted, by Company rules, to bid on job openings in

Complaint



6a

or to be advanced to other job classifications carrying 
better conditions, wages, terms and privileges of employ­
ment. All other jobs, held only by white employees of 
defendant, including that of watchmen, are classified above 
the semi-skilled and common laborer titles and only white 
employees are eligible for job-progression in these classi­
fications.

C. Defendant refuses its Negro employees the oppor­
tunity for overtime on the same basis as such opportunities 
are provided for white employees.

D. Defendant maintains separate facilities, including 
shower rooms, locker rooms, drinking fountains and other 
facilities for its Negro and white employees.

VII.
The defendant has instituted a test requirement which 

Negro employees must take and pass before they are 
considered for job vacancies or classified in positions here­
tofore limited to white employees. Plaintiffs believe and 
allege that the test is not professionally developed as re­
quired under 42 U. S. C. §2000e-2(h) and that the test, 
the administration and action upon the results are in­
tended to discriminate against Negro employees because 
of race and color.

VIII.
The defendant’s discriminatory policies and practices 

herein set forth were intended to and have and will have 
the effect of discriminating against plaintiffs and others 
of their class with respect to terms, wages, conditions, 
advantages, and opportunities of employment solely be­
cause of their race and color in violation of their rights

Complaint



7a

to equal employment opportunities secured to them by 
Title VII of the Civil Rights Act of 1964, 42 U. S. C. 
<§§2000(e) et seq.

IX,
Neither the State of North Carolina nor the County of 

Rockingham nor the City of Draper has a law prohibiting 
the unlawful practices alleged herein. On March 15, 1966, 
plaintiffs filed a complaint with the Equal Employment 
Opportunity Commission alleging violation by the defen­
dant of plaintiffs’ rights under Title VII of the Civil 
Eights Act of 1964, 42 U. S. C. §§2000(e) et seq. On or 
about September 24, 1966, plaintiffs were advised that 
the Commission found reasonable cause to believe that 
violation of the Act had occurred and that the Commis­
sion had been unable to achieve voluntary compliance by 
defendant through conciliations as provided by the Act. 
Plaintiffs were further advised that they were entitled to 
initiate a civil action in the United States District Court 
as provided by 42 U. S. C. §2000e-5(f) of the Act.

X.
Plaintiffs and the class they represent have no plain, 

adequate or complete remedy at law to redress the wrongs 
alleged herein and this suit for injunctive relief is their 
only means of securing adequate relief. Plaintiffs and 
the class they represent are now suffering and will con­
tinue to suffer irreparable injuries from defendant’s poli­
cies, practices, customs and usage as set forth herein 
unless and until enjoined by the Court.

W herefore, plaintiffs respectfully pray the Court ad-' 
vance this cause on the docket, order a speedy hearing at

Complaint



8a

the earliest practicable date, cause this matter to be in 
every way expedited and upon such hearing to :

(1) Grant plaintiffs and the class they represent, in­
junctive relief, enjoining the defendant, Duke Power Com­
pany, its agents, successors, employees, attorneys and 
those acting in concert and participation with them and 
at their direction, from continuing or maintaining any 
policy, practice, custom or usage of denying, abridging, 
withholding, conditioning, limiting or otherwise interfering 
with the rights of plaintiffs and others of their class to 
equal employment opportunities as secured by Title VII 
of the Civil Rights Act of 1964, 42 U. S. C. §§2000e et seq.

(2) Grant plaintiffs and the class they represent injunc­
tive relief enjoining the defendant, its agents, successors, 
employees, attorneys and those acting in concert and 
participation with them and at their direction, from main­
taining, sanctioning and authorizing a policy or practice 
of hiring or limiting Negro employees to certain positions 
and job classifications and maintaining separate lines or 
job-progressions of advancement or otherwise limiting the 
rights of Negro employees to be advanced to other job 
classifications and positions or imposing conditions for 
such advancement upon Negro employees not required of 
white employees similarly situated, solely because of race 
or color.

(3) Grant plaintiffs and the class they represent in­
junctive relief enjoining the defendant, its agents, em­
ployees, successors, attorneys and those acting in concert 
and participation with them and at their direction from 
continuing or maintaining any policy, practice, custom or 
usage of paying Negroes less wages than white employees 
performing the same or similar work.

Complaint



9a

(4) Grant plaintiffs and the class they represent in­
junctive relief enjoining the defendant, its agents, suc­
cessors, employees, attorneys and those acting in concert 
and participation with them and at their direction from 
continuing or maintaining racially segregated employee 
facilities, including shower rooms, locker rooms, drinking 
fountains and other facilities.

(5) Allow plaintiffs their cost herein, including reason­
able attorneys’ fees and such other additional relief as 
may appear to the Court equitable and just.

Complaint



10a

Defendant’s Answer
(Filed November 14, 1966)

[Caption Omitted]

Answering the allegations of the Complaint, the De­
fendant says:

1. The allegations of paragraph I are denied.

2. The allegations of paragraph II are denied.

3. Answering the allegations of paragraph III, the De­
fendant admits that this is a proceeding for injunctive 
relief. The remainder of the allegations of paragraph III 
are denied.

4. Answering the allegations of paragraph IV, it is 
admitted that the named Plaintiffs are citizens of the 
United States, that they reside in Rockingham County, 
and that they are employed by Defendant. The other 
allegations of paragraph IV are denied.

5. The allegations of paragraph V are admitted.

6. The allegations contained in paragraph VI and in 
each subsection thereof are denied.

7. The allegations of paragraph VII are denied. The 
Defendant alleges that any tests instituted at its Dan 
River Station are equally applicable to all employees simi­
larly situated, regardless of race or color.

8. The allegations of paragraph VIII are denied.

9. Answering the allegations of paragraph IX, the De­
fendant admits that neither Rockingham County, the City



11a

Defendant’s Answer

of Draper, nor the State of North Carolina has a law 
prohibiting the unlawful employment practices herein al- 
leged, but denies that it is engaged in such practices. As 
to the remainder of the allegations contained in paragraph 
IX, the Defendant alleges that they are improper because 
Section 706(a) of Title VII of the Civil Rights Act of 
1964 provides that nothing said or done during and as a 
part of conciliation endeavors by the Equal Employment 
Opportunity Commission may be used as evidence in a 
subsequent proceeding.

10. The Defendant denies the allegations of para­
graph X.

F irst Defense

The Complaint fails to state a claim against Defendant 
upon which relief can be granted.

S econd Defense

The employment and promotion policies and practices 
of the Defendant at its Dan River Steam Station which 
are in conformity with, and which were adopted in good 
faith and in reliance upon written interpretations of the 
office of the General Counsel of the Equal Employment 
Opportunity Commission, are and have been followed in 
good faith by the Defendant.

W herefore, Defendant prays that the relief sought by 
Plaintiffs be denied; that this action be dismissed; and 
for such other and furthere relief as the Court may deem 
just and equitable.



12a

[Caption Omitted]

Come now the plaintiffs, by their undersigned counsel, 
and respectfully move the Court for leave to amend their 
complaint in the above-styled cause, and, as grounds there­
for, show the following:

1. This cause was initially filed by plaintiffs on Octo­
ber 20, 1966, seeking injunctive and other relief against 
further racially discriminatory practices by defendant 
Duke Power Company, pursuant to Title VII of the Civil 
Rights Act of 1964, 42 U. S. C. §§2000e et seq. Plaintiffs 
seek relief by this action, for themselves, individually and 
for members of their class, presently employed or who 
might subsequently seek employment at defendant’s Draper, 
North Carolina plant.

2. By its answer and subsequent pleadings, defendant 
has challenged the right of plaintiffs to proceed as a class.

3. To more clearly set forth the members of the class 
on behalf of whom plaintiffs seek to maintain this action, 
plaintiffs respectfully pray the Court for leave to amend 
paragraph II of their complaint as follows:

Plaintiffs bring this action on their own behalf 
and on behalf of other persons similarly situated who 
are now employed or who may subsequently seek em­
ployment by defendant Duke Power Company at its 
Draper, North Carolina plant pursuant to Rule 23(a) 
and (b) of the Federal Rules of Civil Procedure, 
There are common questions of law and fact affecting

Plaintiffs’ Motion for Leave to Amend Complaint
(Filed April 7, 1967)



13a

the rights of other Negroes of the class who are, have 
been and may be limited, classified and discriminated 
against in ways which deprive and which tend to de­
prive them of equal employment opportunities and 
otherwise affect their status as employees because of 
race and color. These persons are so numerous as to 
make it impracticable to bring them all before this 
Court. A common relief is sought and the interests 
of the class are adequately represented by plaintiffs.

W herefore, plaintiffs pray the Court that leave be 
granted for them to amend their complaint as prayed 
herein.

Plaintiffs’ Motion for Leave to Amend Complaint



14a

[Caption Omitted]

This cause coming on to be heard before the undersigned 
District Judge upon motion of plaintiffs for leave to 
amend their complaint and it appearing to the Court that 
there is good cause therefor;

I t I s, T herefore, Ordered, Adjudged and Decreed that 
the plaintiffs be and they are hereby allowed to amend 
paragraph II of their complaint as follows:

Plaintiffs bring this action on their own behalf and 
on behalf of other persons similarly situated who are 
now employed or who may subsequently seek em­
ployment by defendant Duke Power Company at its 
Draper, North Carolina plant pursuant to Rule 23(a) 
and (b) of the Federal Rules of Civil Procedure. 
There are common questions of law and fact affecting 
the rights of other Negroes of the class who are, have 
been and may be limited, classified and discriminated 
against in ways which deprive and which tend to 
deprive them of equal employment opportunities and 
otherwise affect their status as employees because 
of race and color. These persons are so numerous as 
to make it impracticable to bring them all before this 
Court. A common relief is sought and the interests 
of the class are adequately represented by plaintiffs.

It is further Ordered that the defendant shall file such 
answer or other response as it desires within twenty (20) 
days after service.

This 6th day of April, 1967.

/ s /  E dw in  M. S tanley 
Judge, United States District Court

Order Allowing Amendment to Complaint
(Filed April 12, 1967)



15a

[Caption Omitted]

Upon motion of plaintiffs for leave to amend their com­
plaint, the Court on April 12, 1967, entered an order 
allowing plaintiffs to amend paragraph II of their com­
plaint as follows:

“Plaintiffs bring this action on their own behalf 
and on behalf of other persons similarly situated 
who are now employed or who may subsequently seek 
employment by defendant Duke Power Company at its 
Draper, North Carolina plant pursuant to Rule 23(a) 
and (b) of the Federal Rules of Civil Procedure. 
There are common questions of law and fact affecting 
the rights of other Negroes of the class who are,: 
have been and may be limited, classified and dis­
criminated against in ways which deprive and which 
tend to deprive them of equal employment oppor­
tunities and otherwise affect their status as employees 
because of race and color. These persons are so 
numerous as to make it impracticable to bring them 
all before this Court. A common relief is sought and 
the interests of the class are adequately represented 
by plaintiffs.”

Answering the allegations of paragraph II of the com­
plaint as above amended, the defendant says:

“2. The allegations of paragraph II are denied.”

W herefore, the defendant prays that the relief sought 
by plaintiffs be denied; that this action be dismissed; and 
for such other and further relief as the Court may deem 
just and equitable.

Answer to Amended Complaint
(Filed April 14, 1967)



16a

Plaintiffs’ Motion for Leave to Amend Complaint 
(Filed June 13, 1967)

[Caption Omitted]

Come the plaintiffs, by their undersigned counsel, and 
respectfully move the Court for leave to amend their com­
plaint to correctly set forth their job titles and positions 
at defendant’s Dan River, Draper, North Carolina plant 
as follows:

Amending paragraph VI(B) to read as follows:
All Negro employees are limited primarily to the 

janitorial positions and are classified as semi-skilled 
or common laborers. As such, they are not allowed 
or permitted, by company rules, to bid on job openings 
in or to be advanced to other job classifications car­
rying better conditions, wages, terms and privileges 
of employment. All other jobs, held only by white 
employees of defendant, including that of watchmen, 
with the exception of one Negro employee recently 
promoted to the coal-handling department are classi­
fied above the semi-skilled and common laborer titles 
and only white employees are eligible for job-progres­
sion in these classifications.



17a

Order Allowing Amendment to Complaint
(Filed June 21, 1967)

[Caption Omitted]

This cause coming on to be heard before the under­
signed upon motion by plaintiffs for leave to amend their 
complaint and it appearing to the Court that there is 
good cause to allow the amendment;

I t is, t h e r e f o r e , ordered, adjudged  and decreed  that the 
plaintiffs be and they are hereby allowed to amend para­
graph VI(B) of their complaint so that the same w ill read:

All Negro employees are limited primarily to the 
janitorial positions and are classified as semi-skilled 
or common laborers. As such, they are not allowed 
or permitted, by Company rules, to bid on job open­
ings in or to be advanced to other job classifications 
carrying better conditions, wages, terms and privileges 
of employment. All other jobs, held only by white 
employees of defendant, including that of watchmen, 
with the exception of one Negro employee recently 
promoted to the coal-handling department, are classi­
fied above the semi-skilled and common laborer titles 
and only white employees are eligible for job-progres­
sion in these classifications.

/ s /  E dwin M. S tanley 
Chief Judge, United States District Court



18a

(Filed July 6, 1967)

[Caption Omitted]

Upon motion of Plaintiffs for leave to amend their com­
plaint, the Court on June 21, 1967, entered an order allow­
ing the Plaintiffs to amend paragraph VI (B) of their com­
plaint as follows:

“All Negro employees are limited primarily to the 
janitorial positions and are classified as semi-skilled 
or common laborers. As such, they are not allowed or 
permitted, by Company rules, to bid on job openings in 
or to be advanced to other job classifications carrying 
better conditions, wages, terms and privileges of em­
ployment. All other jobs, held only by white employees 
of defendant, including that of watchmen, with the ex­
ception of one Negro employee recently promoted to 
the coal-handling department, are classified above 
the semi-skilled and common laborer titles and only 
white employees are eligible for job-progression in 
these classifications.”

Answering the allegations of paragraph VI(B) of the 
complaint as above amended, the defendant says:

“6. It is admitted that thirteen Negroes employed at the 
Defendant’s Dan River Steam Station are now classified as 
semi-skilled laborers and that one Negro is employed in the 
coal-handling section of the Defendant’s Dan River Steam 
Station. As to the remainder of the allegations contained 
in this paragraph VI(B), they and each of them are de­
nied.”

W herefore, the Defendant prays that the relief sought 
by plaintiffs be denied; that this action be dismissed; and 
for such other and further relief as the Court may deem 
just and equitable.

Answer to Amended Complaint



19a

Order Allowing Class Action 
(Filed June 19, 1967)

[Caption Omitted]

This matter was scheduled for conference with attorneys 
on May 26, 1967, to determine whether this action is main­
tainable as a class action under Rule 23 of the Federal 
Rules of Civil Procedure. After considering briefs and 
oral arguments of counsel and being fully advised in the 
premises, the Court was of the opinion that this action was 
maintainable as a class action and defined the class repre­
sented by plaintiffs;

I t is  t h e r e f o r e , o rd ered :

(1) That this action is maintainable as a class action 
only insofar as it seeks injunctive relief from the alleged 
discriminatory practices existing at any time since the 
effective date of Title VII of the Civil Rights Act of 1964, 
and the class plaintiffs represent are those Negroes pres­
ently employed as well as those who may subsequently 
be employed by defendant at its Dan River Steam Station, 
Draper, North Carolina; and that plaintiffs also repre­
sent all Negroes who might hereafter seek employment at 
defendant’s Dan River Steam Station, Draper, North 
Carolina, provided that plaintiffs can show that at least one 
Negro plaintiff of that class has sought and been denied 
employment or limited in any way in seeking employment 
solely because of his race or color since the effective date 
of Title VII of the Civil Rights Act of 1964;

(2) That this action is not maintainable under Rule 
23(b)(3) and, therefore, it is unnecessary to provide for 
notice to members of the class represented by plaintiffs;



20a

Order Allowing Class Action

(3) That this order does not establish any rule of rele­
vancy or competency of evidence as to alleged discrimina­
tory acts or practices which existed prior or subsequent to 
the effective date of Title VII of the Civil Bights Act of 
1964, and the Court reserves judgment thereon until this 
cause comes on to he heard on the merits; and

(4) That, pursuant to Rule 23(c)(1) of the Federal 
Rules of Civil Procedure, this order is conditional and may 
be altered or amended at any time prior to a decision on 
the merits.

/ s /  E dwin M. S tanley 
United States District Judge 

6/19/67



21a

Motion to Dismiss as a Class Action
(Filed (May 15, 1968)

[Caption Omitted]

Defendant moves to dismiss this action as a class action 
on the following grounds:

(1) The class is not so numerous that joinder of all 
members is impracticable; and

(2) There are no questions of law or fact common to the 
class the plaintiffs seek to represent.



22a

Affidavit of A. C. Tides

A. C. Thies, being duly sworn, deposes and says:
(1) I am Vice President, Production and Operation, of 

Duke Power Company and was such during all times herein 
mentioned. I have personal knowledge of the matters 
hereinafter referred to and make this affidavit in support of 
defendant’s motion to dismiss this action as a class action.

(2) I am responsible for the personnel promotion policy 
at Dan River Station. Since the trial of this action was 
completed on February 9, 1968, the promotion and place­
ments for training hereinafter set out have occurred at the 
Dan River Station.

(3) Jesse Martin is a Negro with a high school education 
and classified as a helper in coal handling operations. He 
is not one of the named plaintiffs. He was placed in train­
ing for utility operator on March 18, 1968, for promotion, 
if found qualified, to fill an anticipated vacancy. At the 
time Jesse Martin was placed in training for this position, 
there were in addition to Martin nine white employees in 
coal handling. Two of the white employees were high 
school graduates and, therefore, qualified for consideration. 
They declined to accept this transfer. Seven of the white 
employees were not high school graduates and all had been 
employed in coal handling at least ten years ago.

(4) On March 19, 1968, H. E. Martin, a Negro and one 
of the named plaintiffs having a high school education, 
began training for the position of watchman and was 
promoted from semi-skilled laborer to watchman effective 
April 1, 1968.

(5) R. A. Jumper is a Negro and one of the named 
plaintiffs. He has a high school education and is classified



23a

Affidavit of A. C. Thies

as a watchman. On March 21, 1968, he began training to 
fill a test assistant’s position. When he was unable to 
qualify for this position, he was moved to the shop on May 
7, 1968, to train in mechanical work. At the time Jumper 
began this tour of training, there were in addition to 
Jumper two white employees classified as watchmen, both 
of whom had high school educations, and one white em­
ployee without a high school education who was employed 
more than ten years ago, i.e., prior to the adoption of the 
high school education requirement. Of those qualified, 
Jumper has the greatest length of service with the Com­
pany.

A. C. T hies 
A. C. Thies



24a

Motion to Dismiss
(Filed May 15, 1968)

[Caption Omitted]

At the trial of this action, defendant made a Motion to 
Dismiss on the ground that plaintiffs failed to shoulder 
the burden of proving that the defendant intentionally en­
gaged in discriminatory and, therefore, unlawful employ­
ment practices as alleged in the complaint. (R. p. 246)

Defendant herein renews its Motion to Dismiss on the 
ground that upon the facts and the law plaintiffs have 
shown no right to relief. In support thereof, defendant 
shows the following:

(A) The plaintiffs’ own evidence establishes that Negro 
employees are not limited to menial and low-paying jobs, 
are eligible for progression and have progressed into job 
classifications above that of laborer. The plaintiffs’ evi­
dence further shows that no vacancies existed in classifica­
tions into which plaintiffs could be promoted from July 2, 
1965, until August 8,1966. On August 8,1966, Jesse Martin, 
the senior Negro with a high school education, was promoted 
to learner in coal handling. Subsequently, R. A. Jumper, 
the next senior Negro with a high school education was pro­
moted from laborer to watchman.

(B) The plaintiffs’ own evidence establishes that Negro 
employees do not perform the same or similar work as white 
employees and receive less wages therefor.

(C) Some of the plaintiffs themselves admit they are not 
refused overtime opportunities and plaintiffs’ own evidence 
shows that they are afforded opportunities for scheduled 
overtime and emergency overtime on an equal basis with 
white employees. In addition, the evidence (Answer to



25a

Motion to Dismiss

Interrogatory 34(a) and (b)) shows nearly equal allocation 
of overtime among the departments.

(D) The plaintiffs’ expert testified he did not know the 
meaning of the phrase “professionally developed ability 
tests” as used in the Act. The plaintiffs’ evidence, therefore, 
fails to make even a prima facie showing that the tests are 
not “professionally developed ability tests” within the 
meaning of Section 703(h) of the Act.

(E) The plaintiffs’ own evidence establishes that the 
tests are equally applicable to white and Negro employees 
similarly situated.

(F) Education is not one of the proscribed bases of dis­
crimination under Title VII of the Act. The plaintiffs’ own 
evidence establishes that the high school education require­
ment is equally applicable to all employees similarly situ­
ated. The nondiscriminatory requirement is being applied 
in a nondiscriminatory manner.

(G) Title VII of the Civil Rights Act of 1964 has pro­
spective effect. Plaintiffs have failed to show a single in­
stance wherein a Negro with a high school education was 
denied a promotion into higher skilled classifications since 
July 2,1965.



26a

(Filed September 30, 1968)

[Caption Omitted]

Gordon, District Judge
Duke Power Company, the defendant in this action, is 

a corporation engaged in the generation, transmission, and 
distribution of electric power to the general public in North 
Carolina and South Carolina. The thirteen named plain­
tiffs are all Negroes and contend that the defendant has 
engaged in employment practices prohibited by Title VII 
of the 1964 Civil Rights Act, 20 U.S.C. § 2000 at its Dan 
River Station located in Draper, North Carolina (recently 
consolidated with the Towns of Leaksville and Spray and 
named Eden) and ask that such discriminatory practices 
be enjoined.

An order was entered on June 19, 1967, allowing the 
action to be maintained as a class action under Rule 23 of 
the Federal Rules of Civil Procedure. The class was defined 
as those Negroes presently employed, and who subsequently 
may be employed, at the Dan River Steam Station and all 
Negroes who may hereafter seek employment at the Sta­
tion. The Court has found no reason to alter the June 19 
Order.

The evidence in this case establishes that due to the re­
quirements for initial employment, Negroes who may sub­
sequently be employed by defendant would not be subject 
to the restrictions on promotions which the named plaintiffs 
contend are violative of the Act. A high school education 
and satisfactory test scores are required for initial employ­
ment in all departments except labor. Plaintiffs certainly 
cannot contend that employees without those requisites who 
are hired for the labor department subsequent to the im­
plementation of the requisites should be allowed to transfer

Memorandum Opinion



27a

into other departments when they could not have been ini­
tially employed in those departments. This would be to 
deny the defendant the right to establish different standards 
for different types of employment. Further, the plaintiffs 
do not contend that the defendant’s requirements for ini­
tial employment are discriminatory. Only fourteen Negroes 
are presently employed by the defendant, thirteen of whom 
are named plaintiffs.

The work force at Dan River is divided for operational 
purposes into the following departments: (1) Operations; 
(2) Maintenance; (3) Laboratory and Test; (4) Coal 
Handling; and (5) Labor. The jobs of watchman, clerk, 
and storekeeper are in a miscellaneous category.

Within each department specialized job classifications 
exist.1 These classifications constitute a line of progression

1 Answer to Interrogatory No. 11:
P ower Station Operators 
Control Operator 
Pump Operator 
Utility Operator 
Learner
Coal and Material H andling 
Coal Handling Foreman 
Coal Equipment Operator 
Coal Handling Operator 
Helper 
Learner
Maintenance 
Machinist 
Eleetrician-W elder 
Mechanic A 
Mechanic B 
Repairman 
Learner
Test and L aboratory 
Testman-Labman 
Lab and Test Technician 
Lab and Test Assistant

Memorandum Opinion

L abor

Labor Foreman 
Auxiliary Serviceman 
Laborer (Semi-Skilled) 
Laborer (Common)
M iscellaneous

Watchman
Clerk
Chief Clerk 
Storekeeper

Supervisors 
Superintendent 
Assistant Superintendent 
Plant Engineer 
Assistant Plant Engineer 
Chemist 
Test Supervisor 
Maintenance Supervisor 
Assistant Maintenance 

Supervisor 
Shift Supervisor 
Junior Engineer



28a

for purposes of employee advancement. The term “line of 
progression” is then synonymous with “department.”

Approximately ten years ago,2 the defendant initiated a 
policy making a high school education or its equivalent a 
prerequisite for employment in all departments except the 
labor department. The effect of the policy was that no new 
employees would be hired without a high school education 
(except in the labor department) and no old employees 
without a high school education could transfer to a depart­
ment other than the labor department. The high school re­
quirement was made applicable on a departmental level 
only, and was not made the basis for firing or demoting a 
person employed prior to its implementation.

In July of 1965 the defendant instituted a new policy for 
initial employment at the Dan Eiver Station. A satisfactory 
score on the Revised Beta Test was the only requirement 
for initial employment in the labor department. In all other 
departments and classifications, applicants were required 
to have a high school education and make satisfactory scores 
on two tests, the E. F. Wonderlick Personnel Test and the 
Bennett Mechanical Comprehension Test, Form A A. The 
company’s promotional policy was unchanged and a high 
school education remained the only prerequisite to a depart­
mental transfer.

In September, 1965, at the instigation of employees in the 
coal-handling department, the defendant promulgated a 
policy by which employees in the coal-handling and labor 
departments and the watchman classification without a 
high school education could become eligible for considera-

2 At the trial of this case, objections by defendant to evidence 
of activities prior to July 2, 1965, were sustained and the evidence 
recorded. Upon a study of briefs subsequently submitted by the 
parties, the Court has for purposes of this case only, considered 
the evidence as competent and relevant.

Memorandum Opinion



29a

tion for transfer to another department by attaining a 
satisfactory score on the two tests previously mentioned. 
This procedure was made available only to persons em­
ployed prior to September 1, 1965.

Applicable Provisions of the Act
Sections 703(a)(1) and (2) of Title YII of the 1964 Civil 

Eights Act provide:
“Section 703(a), 42 U.S.C. § 2000e-2(a):
“It shall be an unlawful employment practice for an 

employer—
“(1) to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or

“ (2) to limit, segregate, or classify his employees in 
any way which would deprive or tend to deprive any 
individual of employment opportunities or otherwise 
adversely affect his status as an employee, because of 
such individual’s race, color, religion, sex, or national 
origin.”

The mandates of those two sections is qualified by the fol­
lowing sections of the Act:

“Section 703(h), 42 U.S.C. § 2000e-2(h):
“Notwithstanding any other provision of this title, 

it shall not be an unlawful employment practice for an 
employer to apply different standards of compensation,

Memorandum Opinion



30a

or different terms, conditions, or privileges of employ­
ment pursuant to a bona fide seniority or merit system, 
or a system which measures earnings by quantity or 
quality of production or to employees who work in 
different locations, provided that such differences are 
not the result of an intention to discriminate because 
of race, color, religion, sex, or national origin, nor 
shall it be an unlawful employment practice for an 
employer to give and to act upon the results of any 
professionally developed ability test provided that such 
test, its administration or action upon the results is not 
designed, intended or used to discriminate because of 
race, color, religion, sex or national origin. It shall not 
be an unlawful employment practice under this title 
for any employer to differentiate upon the basis of sex 
in determining the amount of the wages or compensa­
tion paid or to be paid to employees of such employer 
if such differentiation is authorized by the provisions 
of section 6(d) of the Fair Labor Standards Act of 
1938, as amended (29 U.S.C. 206(d)).”

“Section 703(j), 42 U.S.C. § 2000e-2(j):
“Nothing contained in this title shall be interpreted 

to require any employer, employment agency, labor 
organization, or joint labor-management committee 
subject to this title to grant preferential treatment to 
any individual or to any group because of the race, 
color, religion, sex, or national origin of such individual 
or group on account of an imbalance which may exist 
with respect to the total number or percentage of per­
sons of any race, color, religion, sex, or national origin 
employed by any employer, referred or classified for 
employment by an employment agency or labor or-

Memorandum Opinion



3 la

ganization, admitted to membership or classified by 
any labor organization, or admitted to, or employed 
in, any apprenticeship or other training program, in 
comparison with the total number or percentage of 
persons of such race, color, religion, sex, or national 
origin in any community, State, section, or other area, 
or in the available work force in any community, State, 
section, or other area.”

Congress intended the Act to be given prospective ap­
plication only. Any discriminatory employment practices 
occurring before the effective date of the Act, July 2, 1965, 
are not remedial under the Act.3

The plaintiffs first contend that they are restricted to 
the menial and low-paying jobs and are effectively denied 
an equal opportunity to advance to the more remunerative 
positions because of their race.

The evidence shows that there are approximately 95 em­
ployees at the Dan River Station, 14 of whom are Negroes. 
As of July 2, 1965, the 14 Negroes held jobs in the labor 
department which has a lower pay scale than any other 
department. On August 8, 1966, three months prior to the 
institution of this suit, Jesse Martin, the senior Negro 
laborer with a high school education was promoted to 
learner in the coal handling department. The 13 Negroes 
remaining in the labor department are the plaintiffs in this 
action. One of those, R. A. Jumper, the next senior Negro 
laborer with a high school education has since been pro­
moted to the watchman position. Only one other Negro has 
a high school education. Actually, the high school and test­

3 Actually, the evidence places the number of defendant’s em­
ployees between 90 and 95. The Act was not made applicable to 
employers with under 100 employees until July 2, 1966.

Memorandum Opinion



32a

ing requirements which plaintiffs allege are violative of the 
Act affect only those plaintiffs without a high school educa­
tion.

The evidence shows that only three of the nine white em­
ployees in the coal handling department have a high school 
education; only eight of the seventeen white employees in 
the maintenance department have a high school education; 
two white shift supervisors in the power plant have less 
than a high school education; the two coal handling fore­
men have less than a high school education; and the labor 
foreman has less than a high school education.

Although company officials testified that there has never 
been a company policy of hiring only Negroes in the labor 
department and only whites in the other departments, the 
evidence is sufficient to conclude that at some time prior to 
July 2, 1965, Negroes were relegated to the labor depart­
ment and prevented access to other departments by reason 
of their race.

The plaintiffs contend that upon their initial employment 
they were placed in the low paying labor department and 
were denied access to the more desirable departments as a 
result of the defendant’s discriminatory hiring and pro­
motional policies. Since the discrimination occurred prior 
to July 2,1965, it is not remedial under the 1964 Civil Eights 
Act. But the plaintiffs reason that in subsequently apply­
ing the high school education requirements on a depart­
mental basis only, the initial discrimination was carried 
over and continues to the present. This result, they say, is 
demonstrated by the fact that white employees without a 
high school education are eligible for job openings in the 
more lucrative departments while Negro employees with 
the same or similar educational qualifications are restricted 
to job classifications in the lower paying labor department.

Memorandum Opinion



33a

Under plaintiffs’ theory, the departmental structure of 
defendant’s work force is tainted by prior discriminatory 
practices and therefore cannot serve as a basis for apply­
ing educational or general intelligence standards as pre­
requisites to promotion. Plaintiffs contend that the present 
system continues the past discrimination and violates the 
Act.

The plaintiffs do not contend nor will the evidence sup­
port a finding that the division of defendant’s work force 
into departments is an unreasonable system of classifica­
tion. To the contrary, the evidence shows that jobs within 
each department require skills which differ in degree and 
kind from the skills required in the performance of jobs in 
other departments. Also, each department has a different 
function in the total operation of the plant.

The plaintiffs do not contend that discrimination on the 
basis of education is proscribed by the Act. But they do 
contend that a high school education requirement which of 
itself continues the inequities of prior racial discrimination 
is prohibited.

This theory brings into issue how Congress intended the 
Act to be applied.

The legislative history of the Act is replete with evidence 
of Congress’ intention that the Act be applied prospectively 
and not retroactively. Clark-Case Memorandum, Bureau 
of Nat’l Affairs Operations Manual, The Civil Rights Act 
of 1964, p. 329; Justice Dept. Reply on Title VII, Bureau of 
Nat’l Affairs Operations Manual, The Civil Rights Act of 
1964, p. 326.

In providing for prospective application only, Congress 
faced the cold hard fact of past discrimination and the re­
sulting inequities. Congress also realized the practical im­
possibility of eradicating all the consequences of past dis­

Memorandum Opinion



34a

crimination. The 1964 Act has as its purpose the abolition 
of the policies of discrimination which produced the in­
equities.

It is obvious that where discrimination existed in the 
past, the effects of it will be carried over into the present. 
But it is also clear that policies of discrimination which ex­
isted in the past cannot be continued into the present under 
the 1964 Act. Plaintiffs do labor under the inequities re­
sulting from the past discriminatory promotional policies 
of the defendant, but the defendant discontinued those dis­
criminatory practices. More than ten years ago it put into 
effect a high school education requirement intended to 
eventually upgrade the quality of its entire work force. 
At least since July 2, 1965, the requirement has been fairly 
and equally administered.

The requirement was made applicable to a department­
alized work force without any intention or design to dis­
criminate against Negro employees. The departments serve 
as a reasonable system of classification with each depart­
ment having a different function and each department re­
quiring different skills. It is important to remember that 
the departmental structure does not result in Negroes doing 
the same or similar work as white employees but receiving 
smaller wages. The past discrimination was in restricting 
Negroes to the menial and low paying jobs in the labor 
department. Had Negroes not been restricted in this fash­
ion prior to the institution of the high school education re­
quirement, there would be no question of the present 
legality of defendant’s policies.

If the relief requested by plaintiffs is granted, the de­
fendant will be denied the right to improve the general 
quality of its work force or in the alternative will be re­
quired to abandon its departmental system of classification

Memorandum Opinion



35s

and freeze every employee without a high school education 
in his present job without hope of advancement. And these 
harsh results would be necessary, under plaintiffs’ theory, 
because of discriminatory practices abandoned by the de­
fendant over ten years ago.

It is improbable that any system of classification used by 
an employer who has discriminated prior to the effective 
date of the Act could escape condemnation if this theory 
prevailed, regardless of how fair and equal its present poli­
cies may be. This Court does not believe such application 
of the Act to have been contemplated by Congress. Other­
wise, it would have been unnecessary to indicate an inten­
tion that the Act receive only prospective application.

The plaintiffs cite Quarels v. Phillip Morris, Inc., an un­
reported decision in the Eastern District of Virginia. That 
case held that restrictions on departmental transfers where 
the departments had been organized on a racially segre­
gated basis were violative of the Act. Interdepartmental 
transfers had been completely prohibited under the prior 
discriminatory practices. Provisions of two collective bar­
gaining agreements negotiated in the fall of 1964 and ef­
fective over a three-year period from February 1, 1965, 
modified the previous no-transfer policy only to the extent 
that a limited number of employees from the previously 
all-Negro departments would be allowed to transfer to the 
previously all-white department. A “Memorandum of Un­
derstanding” executed on March 7, 1966, modified seniority 
and transfer provisions only in degree. These provisions, 
in effect, continued the old discriminatory no-transfer poli­
cies except that four Negroes were allowed to transfer every 
six months without effect on their seniority rights. These 
present practices retained the discriminatory flavor of the 
past and were held violative of the Act.

Memorandum Opinion



36a

The restrictions on departmental transfers at Duke 
Power’s Dan River Station are distinguishable from the 
restrictions of Phillip Morris, Inc., condemned in Quarles. 
The restrictions on interdepartmental transfers at Duke 
Power are based on education requirements whereas the 
policy at Phillip Morris represented only a relaxation of 
earlier restrictions based on race. Phillip Morris exhibited 
no business purpose or reason for its transfer restrictions, 
but as pointed out heretofore, Duke Power had legitimate 
reasons for its educational and intelligence standards and 
for applying those standards to its departmental structure.

If the decision in Quarles may be interpreted to hold that 
present consequences of past discrimination are covered 
by the Act, this Court holds otherwise. The text of the 
legislation redounds with the term “unlawful employment 
practice.” There is no reference in the Act to “present 
consequences.” Moreover, under no definition of the words 
therein can the terms “present consequences of past dis­
crimination” and “unlawful employment practice” be given 
synonymous meanings.

This does not mean that a court cannot look beyond the 
effective date of the Act to determine whether present prac­
tices are discriminatory. That, in fact, was what the court 
did in the Quarles case.

Plaintiffs secondly contend that the defendant’s policy of 
allowing passing marks on two general intelligence tests to 
substitute for a high school education in determining eligi­
bility for departmental transfer is discriminatory and in 
violation of the Act.

The application of defendant’s testing procedures on a 
departmental basis is not in violation of the Act for the 
same reasons expressed previously in the discussion of the 
high school requirement.

Memorandum Opinion



37a

In light of this Court’s holding that the defendant’s policy 
of making a high school education a prerequisite to de­
partmental transfers is non-discriminatory, it would appear 
to be in derogation of the plaintiffs’ interests to abolish the 
use of test scores as a substitute for the high school re­
quirement. But to the extent that the nature of the tests 
may be discriminatory, their validity under the Act must be 
examined.

Section 703(h), (42 U.S.C. § 2000-2(h)) of the Act pro­
vides that it shall not be

“ [A]n unlawful employment practice for an em­
ployer to give and to act upon the results of any pro­
fessionally developed ability test provided that such 
test, its administration or action upon the results is not 
designed, intended or used to discriminate because of 
race, color, religion, sex or national origin.”

The clause was inserted by an amendment introduced by 
Sen. Tower (R. Tex.). It was designed to insure the em­
ployer’s right to utilize ability tests in hiring and promoting 
employees which practice had been condemned by a hearing 
examiner for the Illinois Fair Employment Practices Com­
mission.

The plaintiffs apparently read the section to allow tests 
only when they are developed to predict a person’s ability 
to perform a particular job or group of jobs. That is, if 
the job requires only manual dexterity, then the Act re­
quires an employer to utilize only a test that measures 
manual dexterity. Guidelines on employment testing pro­
cedures set out by the Equal Employment Opportunity 
Commission serve to fortify that appraisal of the Act:

“The Commission accordingly interprets ‘profes­
sionally developed ability test’ to mean a test which

Memorandum Opinion



38a

fairly measures the knowledge or skills required by 
the particular job or class of jobs which the applicant 
seeks, or which fairly affords the employer a chance 
to measure the applicant’s ability to perform a particu­
lar job or class of jobs.”

This Court cannot agree to this interpretation of § 703(h). 
Title VII of the 1964 Act has as its purpose the elimination 
of discriminatory employment practices. It precludes the 
use of ability tests which may be used to discriminate on 
the basis of race, color, religion, sex, or national origin. 
Nowhere does the Act require that employers may utilize 
only those tests which accurately measure the ability and 
skills required of a particular job or group of jobs. No­
where does the Act require the use of only one type of test 
to the exclusion of other non-discriminatory tests. A test 
which measures the level of general intelligence, but is un­
related to the job to be performed is just as reasonably a 
prerequisite to hiring or promotion as is a high school 
diploma. In fact, a general intelligence test is probably 
more accurate and uniform in application than is the high 
school education requirement.

The two tests used by the defendant were never intended 
to accurately measure the ability of an employee to perform 
the particular job available. Bather, they are intended to 
indicate whether the employee has the general intelligence 
and overall mechanical comprehension of the average high 
school graduate, regardless of race, color, religion, sex, or 
national origin. The evidence establishes that the tests were 
professionally developed to perform this function and there­
fore are in compliance with the Act.

The Act does not deny an employer the right to deter­
mine the qualities, skills, and abilities required of his

Memorandum Opinion



39a

employees. But the Act does restrict the employer to the 
use of tests which are professionally developed to indicate 
the existence of the desired qualities and which do not dis­
criminate on the basis of race, color, religion, sex, or na­
tional origin.

The defendant’s expert testified that the Wonderlic Test 
was professionally developed to measure general intelli­
gence, i.e., one’s ability to understand, to think, to use good 
judgment. The Bennett Test was developed to measure 
mechanical understanding of the operation of simple ma­
chines. These qualities are general in nature and are not 
indicative of a person’s ability to perform a particular task. 
Nevertheless, they are qualities which the defendant would 
logically want to find in his employees. The Act does not 
deprive him of the right to use a test which accurately, re­
liable, and validly measures the existence of those qualities 
in an applicant for initial employment or for promotion.

Plaintiffs lastly contend that the defendant discriminates 
on the basis of race in the allocation of overtime work at its 
Dan River Station.

Overtime work at Dan River is referred to as “scheduled 
overtime” or “emergency overtime.” Every employee at 
the station is allotted eight hours of “scheduled overtime” 
every four weeks. All other overtime is “emergency over­
time.”

Between July 2, 1965, and February, 1967, employees in 
the coal-handling department worked approximately 10.39 
per cent of their total working hours in overtime. The per­
centage of overtime worked by employees in other depart­
ments was as follows: maintenance, 7.84 per cent; opera­
tions, 5.39 per cent; labor, 5.22 per cent; and other, 5.19 
per cent. The high percentage of overtime Avorked by em­
ployees in coal handling \vas due to erratic deliveries of

Memorandum, Opinion



40a

coal and the difficulty in handling frozen coal during winter 
months. As a general rule, overtime work is done by the 
employees of the department which would ordinarily do the 
work. But occasionally in coal handling, the work load be­
comes so great that employees from other departments are 
called in to help. The gist of plaintiffs’ contention is that 
Negroes are denied overtime work in coal-handling and so 
are discriminated against in the allocation of overtime. 
The evidence does not support this contention.

The percentages of overtime worked in each department, 
with the exception of coal-handling, are very similar. The 
higher percentage in the maintenance department appears 
to have been due to overtime work in repairing equipment 
and not to overtime in the coal-handling operations. Fur­
ther, the evidence is that Negroes in the labor department 
assigned to work in coal-handling do not work the same 
overtime as employees in the coal-handling department be­
cause of the danger involved in doing their work at night 
while the coal-handling operations are going on.

It is concluded that the difference between allocation of 
overtime to employees is not the result of discriminatory 
practices and is not in violation of the Act.

Conclusions of Law
1. This Court has jurisdiction over the parties and sub­

ject matter of this action, pursuant to the provisions of 
Section 706(f) of Title VII of the Civil Rights Act of 1964, 
42 U.S.C. § 2000e-5(f).

2. By order of this Court dated June 19, 1967, this action 
was permitted to be maintained as a class action, but the 
order was made conditional in nature pursuant to the 
Federal Rules of Civil Procedure 23(c)(1). The order de­

Memorandum Opinion



41a

fined the class plaintiffs sought to represent as all Negroes 
presently employed, all Negroes who may subsequently be 
employed, and all Negroes who may hereafter seek employ­
ment at the defendant’s Dan River Steam Station in Draper, 
North Carolina.

3. The Court is of the opinion, finds, and concludes that 
the defendant’s high school education requirement does not 
violate Title VII of the Act. It has a legitimate business 
purpose and is equally applicable to both Negro and white 
employees similarly situated.

4. The tests in use by the defendant at its Dan River 
Station are professionally developed ability tests within 
the meaning of Section 703(h) of the Act and are not ad­
ministered, scored, designed, intended, or used to discrimi­
nate because of race or color.

5. Title VII of the Civil Rights Act of 1964 became ef­
fective July 2, 1965. The legislative history of the Act 
clearly shows that it is prospective and not retroactive in 
effect. Since the effective date of the Act, the defendant 
has not limited, classified, segregated, or discriminated 
against its employees in any way which has deprived or 
tended to deprive them of any employment opportunities 
because of race or color.

6. The defendant has not discriminated in the allocation 
of overtime on the basis of race or color and is not in viola­
tion of the Act.

7. The plaintiffs have failed to carry the burden of prov­
ing that the defendant has intentionally discriminated 
against them on the basis of race or color. There are no

Memorandum Opinion



42a

legally established facts from which the Court could draw 
an inference that the defendant has so discriminated.

Accordingly, no relief is appropriate, and a judgment 
dismissing the complaint will be entered. Within ten (10) 
days of this date, counsel for the defendant will submit a 
proposed judgment, first submitting same to counsel for 
the plaintiffs for approval as to form.

/s /  E ugene A. Gordon 
United States District Judge

September 30, 1968

Memorandum Opinion



43a

Judgm ent

(Filed October 9, 1988)

[Caption Omitted]

This action came on for trial on February 6, 1968, and 
February 9, 1968, before the Honorable Eugene Gordon, 
United States Judge, without a jury, and the evidence ad­
duced by the parties having been heard and the Court hav­
ing made its findings of fact and conclusions of law as set 
forth in the Court’s Memorandum Opinion dated September 
30, 1968, it is hereby

O rdered , A d ju d g ed  and D ecreed , that the plaintiffs, and 
the class they represent, are not entitled to relief in this 
action; that their complaint and this action is hereby dis­
missed on the merits; and that the defendant recover its 
costs.

/ s /  E ugene A. Gordon 
United States Judge



44a

Notice of Appeal 
(Filed October 18, 1968)

[Caption Omitted]

N otice of A ppeal and D esignation of R ecord on A ppeal

I

Notice is hereby given that Willie S. Griggs, et al., plain­
tiffs above named, hereby appeal to the United States Court 
of Appeals for the Fourth Circuit from the final judgment 
and order entered in this action on the 9th of October, 1968 
by the United States District Court for the Middle District 
of North Carolina, Greensboro Division, pursuant to the 
Memorandum Opinion of said Court on September 30, 1968.

II
D esignation of R ecord on A ppeal

Plaintiffs, by their undersigned attorney, pursuant to 
Rule 10 of the Federal Rules of Appellate Procedure for 
the United States Court of Appeals, hereby designate all 
the original files and the complete transcript of the evidence 
in the subject case for inclusion in the record on appeal, in­
cluding all pleadings, exhibits, affidavits, testimony, orders, 
memorandum opinion, judgment, notice of appeal and this 
designation.

Attorney for Plaintiffs



45a

T ranscrip t of H earing February  6, 9, 1968

Pursuant- to notice, the above entitled case was heard in 
the United States Courtroom, Federal Building, Greens­
boro, North Carolina, commencing at 9:30 a.m. on the 6th 
day of February, 1968.

H onorable E ugene A. Gordon, Presiding

A ppearances

For the Plaintiffs:
J. L eV onne Chambers, Esq.
D avid D ansby, Esq.
R obert B elton, Esq.

For the Defendant:
George W. F erguson, Esq.
W illiam I. W ard, J r., Esq.
Graham E rlacher, Official Court Reporter

[83 *  *  *

Mr. Belton: First, we’d like to introduce and have marked 
for identification, Plaintiffs’ Exhibit f t 1, which is the 
charge filed with the Equal Employment Opportunity Com­
mission. I show Counsel for the Defendants a copy of the 
charge, and ask if he will be willing to stipulate that, that 
similar charges were filed by each of the named Plaintiffs 
in the Case?

Mr. Ferguson: No, sir. May it please the Court? On 
the 26th day of April, 1966, Mr. J. D. Knight, Superintend­
ent of the Dan River Steam Station, is receipted for service 
of certain charges from the Equal Employment Opportunity 
Commission, made by the Plaintiffs in this Case. Upon 
examination of what Mr. Belton furnishes me and upon



46a

examination of the charges for which we receipted service, 
I find a substantial difference, and moreover, we object to 
anything introduced into this proceeding in connection with 
the Equal [93 Opportunity Commission, relying on—in 
Section 706A of the Statute, which says that “nothing said 
or done during and as a part of such endeavor, referring to 
the Conciliation Persuasion, and so forth, may be made 
public by the Commission without the written consent of 
the Parties or used as evidence in a subsequent proceeding.”

Mr. Belton: At this time, Your Honor, we’d like to in­
troduce into evidence copies which the Plaintiffs—a copy 
of each of the charges filed wfith the Equal Employment 
Opportunity Commission. These are the charges that the 
Plaintiff filed and the ones that were given to us by the 
Plaintiffs.

The Court: But you say they were different from what 
you received!

Mr. Ferguson: Yes, sir.
The Court: I don’t see why you couldn’t resolve that 

difference between you. You know,—it was a written docu­
ment, wasn’t it?

Mr. Ferguson: Yes, sir.
The Court: How on earth could there be a difference in 

that? I don’t understand.
Mr. Ferguson: Your Honor, it’s in different type. The 

charges are different. They both allege discrimination, but 
regardless of the difference in the two [103 documents, we 
would moreover object on the ground that it is not ad­
missible.

The Court: Get me—that’s 42USCA2000.
Mr. Ferguson: Yes, sir.
Mr. Belton: May it please the Court on the point of 

whether the documents sought to be introduced, are admis­

Colloquy



47a

sible, Counsel for the Defendant points to a Section per­
taining to the confidentiality Section of the Statute. Plain­
tiffs contend that the correct reading of the Statute means 
that nothing shall be introduced into evidence that was 
talked about or discussed in the course of Conciliation, 
which means that Conciliation takes place after a charge 
has been filed,—after an investigation has been made, and 
after the Commission has rendered a decision, and we think 
a proper reading of the language in 706 shows that the 
documents sought to be introduced by the Plaintiff, do 
not come within the ambit of the purview of the confiden­
tiality of the provision of that section.

The Court; Let me take a look at it. Of course, you’ve 
got to, before you have a right to bring this action, you have 
to show that you have filed with the Commission something. 
That’s a condition preceding to this, isn’t it!

Mr. Ferguson: That’s quite true, Your Honor, but [11] 
we did not question jurisdiction of this matter.

Mr. Belton: The reason vrhy we are seeking to introduce 
this, Your Honor, is because it does go to the question of 
one of the—for the prayer of relief on the complaints, to 
show that each of the main Plaintiffs have pursued their 
remedies for the—you see, since this is part of the Class 
action—

The Court: What do you say about this discrepancy 
about what they receipted for! What is your surmise of 
the difference there!

Mr. Belton: The only thing that I can surmise, Your 
Honor,—it would be just a—I guess, on my part is that 
what may have happened is that after the charge had been 
properly noted or after the copies which I have, had been 
received by the Commission, the Commission may have 
attempted to try to get the Parties to further explain the

Colloquy



48a

basis of their charge and may have taken statements for 
them, in the course of their investigation. This is my sur­
mise, Your Honor.

The Court: You might disagree with this. Just in what 
respects—have you seen what Mr. Ferguson has by way 
of what he says was filed with them! Were they receipted 
for! What I want to know, what is the essential difference? 
Maybe you can tell me, Mr. Ferguson.

[12] Mr. Ferguson: Your Honor, in this particular 
document, the one for which we gave a receipt, they talk 
about discrimination based on tests—that it was necessary 
to take a test to qualify for any job level different than the 
one they are working in. That’s all it says, except a gen­
eral broad allegation of discrimination.

The Court: Wasn’t that in the one they filed?
Mr. Ferguson: No, sir. They had made a broad allega­

tion to the same effect, partially, except that in the one that 
they now show me, it talks about maintenance of separate 
facilities and discrimination in rates and scales of pay. 
Nothing about tests at all, although their complaint alleges 
discrimination based on tests.

The Court: Let me read this, for just a moment. Well, 
I ’m going to overrule the objection and let the record show 
that the Defendant objects to the introduction into the evi­
dence of copies of the charges which Plaintiffs allege that 
they filed with the EEOC on March 15th.

Mr. Ferguson: Your Honor, it please the Court, mine 
says March the 15th, and this one says the 10th of August 
of ’66. I don’t know what’s happened here. I raised this at 
the Pre-Trial Conference or prior to [13] the Pre-Trial 
Conference, when we were getting this Order together and 
for that reason, reserve my right to object to it at this time, 
and I pointed this out to them.

Colloquy



49a

The Court: Well, I do not understand. I will allow you, 
if you desire, to introduce what you have there.

Mr. Ferguson: No, sir.
The Court: This is a non-jury matter.
Mr. Ferguson: Yes, sir.
The Court: The rules of evidence are, in my opinion, just 

as strict as they would be if it were a jury matter. How­
ever, the Courts have been rather liberal to us in assuming 
that when we start writing our decision about it, that we 
only consider that which is competent, and dismiss from our 
minds when we look at that which is not competent. So, 
having that rule in mind, I am a little more liberal with 
getting whatever is done and said about the matter. If I 
haven’t so protected the Defendant, let it show that they 
object and except to the introduction of the copies into the 
evidence in this case.

(Plaintiffs’ Exhibit # 1  wTas received into evi­
dence.)

Mr. Belton: At this time, I ’d like to have marked [143 
for identification Plaintiff’s Exhibit #1, which is the charge 
of Clarence Jackson; Plaintiffs’ Exhibit #2, which is the 
charge of James Tucker; Plaintiffs’ Exhibit #3, which is 
the charge of Jumper and Hairston, each—H-a-i-r-s-t-o-n; 
Plaintiffs’ Exhibit # 4  is the charge of Clarence Purcell and 
Willie Griggs; Plaintiffs’ Exhibit #5, which is charge of 
Hatchett—H-a-t-c-h-e-t-t; Plaintiffs’ Exhibit #6, which is 
the charge of Herman Martin; Plaintiffs’ Exhibit #7, which 
is the charge of Eddie Galloway and Junior Blackstock; 
and Plaintiffs’ Exhibit #8, which is the charge of William 
C. Purcell—P-u-r-c-e-1-1—William Purcell.

The Court: What was that last number, Mr. Vaughn?

Colloquy



Colloquy

Clerk Vaughn: #8,
(Plaintiffs’ Exhibit #1 , #2, #3, #4, #5, 

#6, #7, and # 8  were marked for identifica­
tion.)

Mr. Belton: At this time, Plaintiffs would also like to 
introduce into evidence the decision of the EEOC, which 
accompanied the letter advising the named Plaintiffs of 
their right to proceed in Court.

The Court: Any objection by the Defendant!
Mr. Ferguson: Same objection, Your Honor.
The Court: All right. Let the record show that the ob­

jection is overruled and that the Defendant excepts to this 
ruling of the Court.
116] * * *

Mr. Belton: We would like to introduce at this time, 
Plaintiffs’ Exhibit #10, which is a copy of the letter sent 
to each Plaintiff advising them of their right to proceed 
in Court. At this time, I would like to ask if I could get a 
stipulation from Counsel that each of the named Plaintiffs 
received a copy of the letter, so that I won’t have to intro­
duce all of them?

Mr. Ferguson: As far as I am concerned, you may intro­
duce that as representative of what was received by all the 
Plaintiffs.

The Court: All right.
(Plaintiffs’ Exhibit #10 was marked for identi­

fication.)
Mr. Belton: We introduce a letter of Willie Boyd, as 

exemplifying the letter received by each of the named Plain­
tiffs. We’d also like to introduce at this time, Plaintiffs’ Ex­
hibit, and have marked for identification Plaintiffs’ Exhibit



51a

#11, which consists of answers to interrogatories, which 
were the interrogatories propounded to them. These were 
the answers [17] supplied in February of ’67 and March 
of ’67. I would like to ask the Court, since there is a copy 
of the interrogatories on file, if we might have the originals 
marked for an Exhibit, for the record?

The Court: You say, February and March of ’67?
Mr. Belton: That’s correct, Your Honor.
The Court: Yes, that will be all right.

#  *  *  *  •

121}  *  *  *

Mr. Belton: We would like at this time to have marked 
for identification and introduced into evidence, the Wonder- 
lie—a copy of the Wonder lie Personnel Manual.

# # • # «
[223 # 8 #

The Court: All right, let the record show that the Ex­
hibit #13 is received into the evidence.

(Plaintiffs’ Exhibit #13 was marked for identi- 
fiation, and received into evidence.)

Mr. Belton: We’d like to introduce at this time and have 
marked for identification, the depositions in their entirety, 
of Kenneth Austin, who is the Vice-President of Personnel 
for the Company.

*  #  #  #  •

[26] (Plaintiffs’ Exhibit #14 was marked for 
identification.)

Mr. Belton: We would like to have marked for identifi­
cation at this time and introduce into evidence the deposi­
tions of Mr. J. D. Knight, who is the Superintendent in

Colloquy



52a

charge of the Dan River Steam Station, a facility of the 
Company.

The Court: All right,
(Plaintiffs’ Exhibit #15 was marked for identifi­

cation.)
How about letting Mr. Belton go ahead with these depo­

sitions, and then you can, Mr. Ferguson, make whatever 
objections you want to make.

Mr. Ferguson: All right.
Mr. Belton: We’d like to have marked for identification 

and introduced at this time the deposition of Mr. Theis, 
who is a Vice-President of Production Operation of the 
Company.

(Plaintiffs’ Exhibit #16 was marked for identifi­
cation.)

Mr. Belton: We’d like to have marked for identification 
and introduced into evidence the depositions in their en­
tirety of Mr. J. Dan Rhyne, who is the assistant to Mr. 
Knight at the Dan River Steam Station.

(Plaintiffs Exhibit #17 was marked for identifi­
cation.)

[ 27]  * * *
Mr. Belton: We’d like to have marked for identification 

as Exhibit #18 and introduced into evidence, the deposi­
tion in the entirety of Mr. Richard K. Lemons, * # *

#  *  •  »  *

[ 31]  * * *
Mr. Belton: Those, Your Honor, are the depositions. 
The Court: All right, Mr. Ferguson. On the depositions, 

starting with Exhibit #14, what objection if any, do you 
have to Exhibits #14 through #301

Colloquy



53a

Mr, Ferguson: Your Honor, we would have the same 
levity objection that we had to Mr. Kenneth Austin’s 
[323 deposition, that I mentioned to you previously. I 
don’t think there’s any necessity in repeating it. We 
would—after we got a chance to look at the composite 
picture and other evidence to overcome what we think are 
inferences that are not properly drawn.

The Court: All right. To protect you on the record, 
let’s state that you object to the introduction of Exhibits 
#14 through #30, and the objection is overruled, and 
Exhibits #14 through #30 are received into the evidence. 
Let the record show that actually, the Defendant only con­
tends as to the deposition—that it should be allowed to 
amplify and explain some of the answers made in these 
depositions, and if so allowed, really indicates no objection 
to the deposition.

The Court had advised the Defendant that it would be 
given opportunity to give such additional explanation of 
the answers contained in these depositions as the rules 
of evidence allow. All right.

(Plaintiffs’ Exhibits #14 through #30 were re­
ceived into evidence.)

Mr. Belton: May it please the Court? We would like to 
have marked for identification and introduce into evidence 
at this time, Plaintiffs’ Exhibit #31, wdiich is the educa­
tional background of all employees of the Company as of 
April 29, 1966.
[33] The Court: Now, is that contained on just one 
sheet?

Mr. Belton: It consists of two sheets, Your Honor.
The Court: All right.
Mr. Ferguson: I am inquiring of Counsel if he repre­

sents that this is w7hat I furnished him with my letter of 
September 15, 1967 ?

Colloquy



54a

A. C. Thies—for Defendant—Direct 

Mr, Belton: That’s correct.
The Court: All right, let the record show that received 

into the evidence is Plaintiffs’ Exhibit #31.
(Plaintiffs’ Exhibit #31 was marked for identi­

fication and received as evidence.)
#  *  #  # *

[43] * * *
Mr. Ferguson: Come around, Mr. Thies.

Whereupon, A. C. Thies was duly sworn and testified as 
follows:

Mr. Belton: Your Honor, before we get to the 
testimony of this witness, I would like to ask the 
Court to clarify for purposes of the record whether 
or not the Exhibits have to be introduced—Exhibits 
5 through 12, if you will!—sought to be introduced! 
If you will receive in evidence, for clarification of 
the record!

The Court: Let the record show that the Exhibits 
offered by the Plaintiffs, being Exhibits #1  through 
#32, were received into evidence of the Court, sub­
ject to the objections made by the Defendant, which 
appear already on record. That takes them all, in 
case you’ve overlooked any.

(Plaintiffs Exhibits #5  through #13 were re­
ceived into the evidence.)

Mr. Belton: Thank you.
|44] The Court: All right.

Direct Examination by Mr. Ferguson:
Q. For the record, please state your name. A. Austin 

C. Thies.



55a

Q, Mr. Thies, what’s your occupation? A. I ’m Vice- 
President of Production and Operation for the Duke Power 
Company.

Q. What is your educational background, Mr. Thies? A. 
I have a BS Degree in Mechanical Engineering from 
Georgia Institute of Technology.

Q. Are you responsible for the operations at the Dan 
River Steam Station, subject to this proceeding? A. Yes, 
I am.

Q. Would you describe, please, sir, in a general way the 
operations that are conducted at the Dan River Station? 
A. At Dan River, we are in the process of converting the 
energy in coal into electrical energy for our customers, and 
in order to do this, we receive large quantities of coal 
from the mines. We weigh i t ; we sample i t ; we unload i t ; 
we distribute it to storage of the bunkers. It is fed from 
these bunkers through pulverizing mills into the boilers. 
From the boilers, the energy that’s in the coal is turned 
into heat energy by burning, and this heat energy forms 
steam,, and that steam is brought to the turbine generators 
[45] where the heat energy and the steam is turned into 
mechanical energy of the rotation of the machinery, and 
the rotational energy and the mechanical energy and the 
turbine drives of the generator, where that is changed into 
electrical energy, and then that electrical energy is taken 
out to the sub-station to step up the voltage for transmis­
sion over the power system. Now, this is an overall concept 
of the operations at Dan River.

Q. Thank you. Are the operations at Dan River divided 
departmentally? A. Yes, sir, they are.

Q. Would you name the departments, please, sir, and 
the functions of each! A. Well, I suppose we can follow 
the same general pattern that I followed in describing the

A. C. Thies—for Defendant-—Direct



56a

functions of the station. The coal is received by the Coal 
Handling Operations group, or Department, and these in­
dividuals are responsible for the weighing, the sampling, 
the unloading, the transporting of the coal, the operation 
of locomotors, the bulldozers, the crushers, the equipment 
in the coal handling operations, and this is that depart­
ment’s function. The Operating Department takes over 
next. They are responsible for safe and efficient and re­
liable operation of the equipment within the Power Sta­
tion, and the equipment comes under their control. They 
operate the boilers, the turbines [46] and all of the auxil­
iaries and control equipment. They operate the electrical 
sub-station,—the inner connections with the other Power 
Companies, and the system. The Maintenance Department 
is in the Power Station, and it is responsible for all me­
chanical and electrical maintenance, and such things as 
welding and that sort of work. It’s mechanical maintenance 
of all of the equipment—electrical maintenance of all of 
the equipment.

The Court: What exactly did you say—the first 
one you talked about—the handling of the coal? The 
second one was the Operating Department, and the 
third, Maintenance Department, and you said the 
first was concerned with the coal. What did you call 
that division?

The Witness: That is the Coal Handling Depart­
ment—coal handling operation.

The Court: All right. All right.
The Witness: Then, we have, these are the three 

major divisions, I suppose, of the departments, of 
the organization. We have certain service depart­
ments. We have a Laboratory Department where

A. C. Thies—for Defendant—Direct



57a

laboratory technicians are responsible for the analy­
sis of boiler water to keep the boiler water pure 
enough to be suitable for use without damaging the 
boilers. They analyze the coal or BTU,—the ash 
moisture heat affusion and that sort of thing. They 
make chemical analysis of [473 various fluids and 
liquids, in their connection with the operation of the 
Power Station. They are responsible for making the 
de-mineralized water that goes into the boiler sys­
tem. Then we have the Test Department, and this 
is the department that has technicians that are re­
sponsible for the performance of the Power Station, 
as well as the electrical—the Electronic Maintenance, 
on specialized control equipment,—the maintenance 
of the accuracy of the instruments and the gauges 
and the control devices in the Power Station. They 
are also responsible for testing the Power Station 
equipment to be sure that it is performing as it is 
designed to perform to give us the maximum effi­
ciency overall from the Power Station. They use the 
results of the coal analysis to determine the overall 
efficiency of the operation of the station. Then, we 
have the Labor Department which is a service de­
partment of the station, really to all of the depart­
ments. In this group—this group is generally re­
sponsible for the janitorial services in the Plant. 
They do a number of miscellaneous labor jobs around 
the Plant. They will pick up the garbage with the 
truck. They will occasionally mix mortar in a trough 
with a hoe or they will help to put some boards up 
for a form in a boiler when we have an outage. They 
will clean bolts with a wire brush, when the turbine 
is down for inspection. They will do a lot of labor-

A. C. Thies—for Defendant—Direct



58a

type work of this kind on special assignment, but 
generally, [48] their work is of the janitorial type. 
The other two groups that we have are the Security 
Department—they are the watchmen—then, we have 
a Clerical Group, and in the Superintendent’s office 
is the Chief Clerk, or Clerical Supervisor, it is, and 
an assistant. I think this pretty well covers the Sta­
tion organization.

By Mr. Ferguson;
Q. Mr. Thies, will you please state for us the Job Classi­

fications and the lines of progression in each of the depart­
ments that you have mentioned! A. Yes, sir. In the Coal 
Handling Operation, a man would start out there as a 
Learner. He would progress as he learned, to Helper, and 
then if he was performing satisfactorily, he would be pro­
moted to Coal Handling Operator, and after he had pro­
gressed through the Coal Handling Operator Classification, 
and if he was qualified to run every job in the Coal Han­
dling Operation competently, then he would be considered 
for the Premium Pay Classification in Coal Handling, 
which we call Coal Equipment Operator. If he qualified 
for that and had progressed through the full range of the 
Coal Handling Operator Classification, then he would be 
promoted to the Coal Equipment Operator Classification. 
Now that is the end of the normal progression in the Coal 
Handling operation. In the Operating Department, a man 
would start in as a Learner. If he progressed satisfac­
torily and could do the work, he would go to Utility Oper­
ator. He [49] would progress through that job to the 
top of that classification. Now, he would not progress 
beyond the Utility Operator unless there was an opening 
ahead. There are a certain number of operators required

A. C. Thies—for Defendant—Direct



59a

to operate the Station. This is the only department that 
has a certain number of men—minimum that is required. 
Then, he is, if there is an opening above, he is promoted 
to Pump Operator and progresses through that classifica­
tion. If there are openings in the Control Operator Classi­
fication that pertain, he is moved to the Control Operator 
Classification. Now, this is the end of the normal progres­
sion through the Wage and Hour structure. Of course, we 
do promote from our Control Operator Classification into 
our Shift Supervisor Classification, occasionally, when we 
need a supervisor. This is the place that we would nor­
mally look for this man. This, I think, pretty well covers 
the Operating Department. In the Maintenance Depart­
ment, a man would start out as a Learner; it would pro­
gress, if his work were satisfactory, from Repairman to 
Mechanic B; from Mechanic B to Mechanic A; he could 
branch out at that time to be either an Electrician, a Welder, 
or a Machinist. These are the three top classifications in 
the Maintenance Department, and in this department again, 
when we have an opening for an Assistant Maintenance 
Supervisor, we would normally look to the maintenance 
force to find a man that was qualified to be that Assistant 
Maintenance [50] Supervisor; so that would be a possible 
further progression, for him in the future, if he wrere qual­
ified. In the Laboatory, a man would start out as a Lab 
Assistant, a Lab Technician, a Lab Man. These are the 
three progressive steps in the Laboratory. The same per­
tains in the Test Department. It is called Test Man, Test 
Assistant, and Test Technician; instead of the word, “Lab­
oratory,” it is the same type of progression in these two 
departments. The Clerk could normally progress only if 
there was a vacancy as Clerical Supervisor and he were 
qualified for that job. The Watchmen, if they had an in­

A. C. Thies—for Defendant—Direct



60a

terest and' were qualified, progress to either the Coal Han­
dling Operations or could progress to one of the dejjart- 
ments in the Plant, if they had the educational background, 
and the requirements. The Laborers in the Labor Depart­
ment progress from Labor to Labor Semi-skills, and if they 
meet the qualifications, progress to either the Coal Han­
dling Operations and go on through those, or they can 
progress into the Plant to feed various jobs in Maintenance 
or Operation, or they could progress on up to the Watchman 
Classification if there were an opening there, providing 
they meet the qualifications.

Q. Mr. Thies, when you were talking about the Coal 
Handling Operation Department, did you indicate that the 
lowest—that the entering classification, as it were, was 
Learner or Helper! [51] A. I t’s Learner.

Q. And Learner progresses to Helper within that clas­
sification and then on up! Is that right! A. Yes. This 
is the normal way it is done.

Q. Mr. Thies, are you familiar with the promotions that 
have been made at Dan River since July the 2nd, 1965! 
A. Yes, sir, in a general way.

Q. Would you state whether or not there have been any 
vacancies and promotions into those vacancies since July 
the 2nd, 1965! A. Yes, sir, there have.

The Court: The date is July 2nd!
Mr. Ferguson: Yes, sir.

By Mr. Ferguson:

Q. You say, there have been! A. Yes, sir.
Q. Vacancies and promotions into those vacancies! A. 

Yes, sir.

A. G. Thies—for Defendant—Direct



61a

Q. State whether or not every promotion creates a va­
cancy? A. No, sir.

Q. Explain that to us, if you would. A. There could be 
vacancies created by promotions. In the Operating Group, 
for instance, when you promote—excuse me—when you pro­
mote a Control Operator to Shift Supervisor, that imme­
diately leaves an opening for a Control £52] Operator, 
so that we must promote a man into that classification. 
There is a vacancy created that we must fill in order prop­
erly to man the controls of the Power Station, so we will 
promote a man, generally, from Pumper Operator to Con­
trol Operator to fill that vacancy. Now, that is a case where 
a promotion is made and a vacancy is created. There can 
also be a promotion made from Learner to Helper in the 
Shop. This would create no vacancy because the man would 
just be developing in his skills. I said, Learner to Helper; 
I  meant Learner to Repairman, in the Shop, or if he were 
promoted from Repairman to Mechanic B, it wouldn’t nec­
essarily create a vacancy, because it may take only twenty 
or twenty-five men to do the full scale maintenance work 
at Dan River. So, even though these men are progressing 
in skills and are progressing up in the classification, it does 
not necessarily per se create an opening at the bottom of 
the list. Now, this is the two types; I hope that I have ex­
plained that satisfactorily.

Q. Yes, sir. What is the minimum number of employees 
that you need to satisfactorily operate the Dan River Steam 
Station? A. We have not determined a fixed minimum 
number of employees that we need to operate. We have 
determined that we needed certain operators in the Oper­
ating Department to satisfactorily operate the Station, 
and we knew by general £53] practice that within our 
Maintenance Group, we have about the right number of

A. C. Thies—for Defendant—Direct



62a

people to stay up with the maintenance work that is done 
in the Power Station. I am sure that there is some flex­
ibility there, that we could use an extra man or we could 
do with one less in the maintenance, and it wouldn’t shut 
the Plant down. So there has not been a strict determina­
tion of the number in the maintenance number, for instance, 
and the same thing would apply to the Coal Handling Op­
erations. We know generally that we need so many men 
to do the job, and if the foreman comes in and says the 
coal deliveries have been such—have been erratic, or we’ve 
had a lot of frozen coal, we really need another, and we 
really need another man, then I think it would be up to 
the Superintendent to discuss that with the foreman and 
they would come to some decision as to whether they needed 
to employ another man. I t’s determined really by the work 
situation, is wThat I ’m saying.

The Court: In other wmrds, this flexibility also, 
with what you are saying, would mean that a pro­
motion by reason of the fact that you make provi­
sion, so that you are flexible and therefore, by reason 
of that fact, when you promote a person doesn’t 
necessarily mean that you have a vacancy, because 
often you have more men than you need? Is that it?

The Witness: Yes, sir. And after the promotion 
[54] to a higher classification the man may be doing 

exactly the same work every day. He is just gaining 
skill, and he is paid more money because he is gain­
ing skill, and he’s classified higher, but he is doing 
the same kind of jobs that he was doing before.

The Court: All right.
The Witness: He can maybe be entrusted to some 

additional jobs or maybe take two of three men with

A. C. Thies—for Defendant—Direct



63a

him, as sort of a lead man because be has a higher 
classification.

By Mr. Ferguson-.

Q. Mr. Thies, the Plaintiffs in this case have offered 
into evidence, and it has been received into evidence, cer­
tain answers to interrogatories that the Defendant supplied 
to the Plaintiffs in February and March of 1967. Who 
signed those interrogatories! A. I signed them.

Q. Mr. Thies, this is an instrument or a document con­
taining several columnar tabulations. I t’s marked 19-A Job 
Yacaney. It has Date, Name, Race, Date of Initial Em­
ployment, and Prior Job Classification. Is this what you 
submitted as answer to interrogatory #19?

If it please the Court, I  will furnish you a copy, if you 
would like to see it at this time.

The Court: I would.
Te Witness: Yes, sir. It looks like it. It looks 

like a Xerox copy of it.
[55] The Court: It might be attached to the in­

terrogatory.
Mr. Ferguson: It is. If the Clerk could just hand 

that up to the Court.

By Mr. Ferguson:
Q. I believe you testified, Mr. Thies, that that is the 

answer you supplied in response to Interrogatory #19? 
Is that correct? A. Yes, sir.

Q. Interrogatory #19 requests that the Defendant de­
scribe and designate each job vacancy and the date the 
vacancy occurred, which existed at the Company’s Dan 
River Steam Station at any time between July the 2nd,

A. C. Thies•—for Defendant—Direct



64a

1965, and December 31, 1966, and further, the Name, Race, 
Date of Initial Employment, Prior Job Classification, if 
any, of each employee, who filled such vacancy. Does that 
answer 19A—purport to answer that question? A. Yes, 
sir.

Q. All right, sir. Now, using the answers to Interroga­
tory #19, would you please explain whether or not the 
promotions indicated thereon, created a vacancy into which 
others could have been promoted from a lower classifica­
tion? A. You want me to go through this whole list, here?

Q. If you will, please. A. In the case of Mr. Sayars, 
the first man on the list, here,—that created—let’s see, he 
was promoted to [56] take a Shirt Supervisor job, I believe, 
so a man was moved up from Pump Operator to fill Mr. 
Sayars place as Control Operator. Now, I might explain 
at this point that there were three more there—Pump Oper­
ator to Control Operator. At about this time, we decided 
that we needed a little bit more relief flexibility in the 
Operating Department of Dan River Station. We don’t re­
lieve upward people. We only relieve jobs with people who 
were in that classification or higher, so that in order to 
provide us more relief flexibility, we decided to provide a 
Control Operator on each shift to do relief work—an extra 
man. At the same time, we had two Pump Operators that 
were operating in the Pump Room of the Power Station 
for the three units, and by the addition of certain equip­
ment there, and an analysis of the job which had been made 
over some years, we decided it was not necessary to have 
both of those men on that job, so we eliminated one of those 
jobs in the Pump Room, so we operate now with one man 
in the Pump Room at all times, instead of two, and we 
promoted those people up to the Control Operator Classi­
fication, who had been in the Pump Room, and eliminated

A. C. Thies—for Defendant—Direct



65a

this extra job in the Pump Room. Now, of course, this 
need was brought about by the fact that our people were 
getting somewhat older. We have a real stable employ­
ment situation and they are entitled to more vacation and 
more holidays—not more holidays, but more vacation time, 
and it just made our [57] relief situation a little tighter 
in the Operating Room, so that was the reason for this 
increase in relief. Now that covers really the next three 
men there who were moved out of the Pump Room up to 
the Control Operator Classification, so these did not create 
any vacancy as such. The Pump Operator, I believe, is 
the next one who was promoted from Utility Operator, 
and he was promoted into a job,—I believe it was a Mr. 
Pratt who said he didn’t want to be in the Pump Room 
any more. He had some family problem at home, and he 
didn’t want to work shifts—something about his personal 
situation, so we could arrange it at that time for him to 
go on other jobs in helping with the maintenance and that 
sort of thing, and we let this McClung, we promoted him 
to Pump Operator. And therefore, that created no vacancy 
in this case, because he was a relief man. McClung was a 
relief man anyway. He was an extra man in the Pump 
Room—if you will—he was a Relief Operator, so we had 
moved these others up, so now we were covering the relief 
situation by having more all the way around, so we did 
not need him in the Pump Room. Now, there was no va­
cancy created there. One of the Pump Operators, the fourth 
one out of the Pump Room, and incidentally, on a rotating 
shift, we work twenty-four hours a day, seven days a week, 
and it’s automatically rotated, and there are four positions 
filled for each classification. It takes four men to fill those 
positions, plus the relief situation. [58] You’ve got to have 
enough people to relieve, too, so any time you talk about

A. C. Thies—for Defendant—Direct



66a

a promotion, you are talking about—there are four people 
in the Pump Room right now, for instance at Dan River. 
There will be one man on the shift, but there will be four 
people in the Station that will automatically relieve around 
—to fulfill the full manning situation, the relief has to be 
in addition to those people for things like sickness and holi­
days and vacations. But the Pump Operator, Clarence 
Amoriello—that’s A-m-o-r-i-e-l-l-o, he had some interest in 
this job, so we at this time were losing a Clerk, so we trans­
ferred Mr. Amoriello from the Pump Room into the Clerk’s 
Office. The two next men, were Helper and Learner. Now, 
they were employed in the Power Station in the Operating 
Department to do Operation, and they were performing 
duties—say, Utility Operators normally perform—when 
they first came on the job, they were in training, you might 
say, for Utility Operator, so when they had progressed and 
when there was a need for them to fulfill this whole job 
by themselves, they were made Utility Operators, so no 
vacancy was created by their promotion to Utility Opera­
tor, because they were already doing that similar job, but 
under more supervision than they would have to have when 
they were learning. Jesse C. Martin was a Semi-skilled 
Laborer, and he was promoted from Semi-skilled Laborer 
to the Coal Handling operation. Now, he is in line to pro­
gress right on up [59] to Coal Equipment Operator, and 
he in fact, since this answer was given, he has been pro­
moted from Learner to Helper, but at this time, he had 
just been promoted to Learner, but he is progressing nor­
mally through the Coal Handling Operation. There was 
no vacancy as such created in the Semi-skilled Laborer 
category, by his promotion, because here again, the Labor 
Department can fluctuate a few men one way or the other, 
and the Superintendent just decided, “Well, I  will try to

A. C. Thies—for Defendant—Direct



67a

get along without him for awhile, and see how we get along. 
Maybe wre can do without him for awhile—do without a 
Laborer in this area for this time.” From Learner—the 
next one is Mr. Seigler and Mr. Clark from Learner to 
Repairman. Both of these men were employed as Mainte­
nance Men and when they progressed through the Learner 
Classification, then they were promoted to Repairmen. They 
were qualified to move on. No vacancy was created in the 
Learner Classification by them moving into the Repairman 
Classification. Helper to Coal Handling Operator, James L. 
Williams,—that’s a normal progression; after the man has 
learned enough and has worked as a Helper in the Coal 
Handling Operation to where he has progressed through 
the Helper Classification and understands and can perform 
the duties of the Coal Handling Operator, he is promoted, 
and there was no vacancy created by his promotion from 
Helper to Coal Handling Operator, because he is doing 
[60]essentially the same type of work as the Coal Han­
dling Operations Helper, as he would as a Coal Handling 
Operator, except for the degrees of skill and the length of 
time it takes him to progress to the Helper’s position, so 
no vacancy was created in Coal Handling per se, by his 
promotion. In Mechanic B series, two of those were pro­
moted to Mechanic A—from Repairman to Mechanic B— 
here again, it’s a normal progression. No vacancies were 
created because these people are doing mechanical main­
tenance work, and it was just a change in their pay and 
their classification, as their skills progressed.

Q. Are you saying by that, Mr. Thies, that a Mechanic 
B, when he is promoted to Mechanic A, still can do what 
the Mechanic B does, but he has just progressed through 
skills to a point—in other words, where no vacancy is cre­
ated, the function is still being fulfilled? A. That is cor­

A. C. Thies—for Defendant—Direct



68a

rect. Our policy is—in our Power Stations, we do not work 
a man up out of his classification. We will permit a higher 
classified man to do lower classified work but we don’t per­
mit a man, who is in a lower classification to work in a 
higher classification without paying him for that work or 
re-classifying him. That is a basic policy that we have.

Q. All right, sir. Please go ahead. A. Now, three pro­
motions from Common Labor to Semi-skilled £613 Labor; 
these are again normal progressions, and normal learning 
of the individuals. They have progressed through the Com­
mon Labor Classification in the opinion of their Supervisor, 
and the Superintendent. They have learned enough to be 
classified as Semi-skilled Labor. They still doing possibly 
some of the same jobs or mostly the same job they were 
doing before, but they know how to do it better, and they 
know where the equipment is, and it is just a matter of 
normal progression up in the skills, so they have created 
no vacancy by their move. In Mechanic A to Welder is 
again where a man specialized in welding, and when we 
felt that he’d progressed far enough through Mechanic A 
and had demonstrated his ability to weld, he was promoted 
into the Welder Classification. Now, I believe maybe there 
is a little overlap in the pay of the two, but at any rate, 
that’s immaterial. This is a normal progression into 
Welder, and would not create a vacancy as such.

Q. Would you summarize your conclusion with respect 
to this “19”? A. Yes, sir. There was one vacancy created 
by Mr. Sayars that was filled from persons already in that 
department, and the promotion of Mr. Sayar—

Q. Mr. Thies, I don’t want you to go back through it. 
If you will just count up, if you will and state whether or 
not there were any vacancies created? [62] A. Yes, in the

A. C. Thies—for Defendant—Direct



69a

case of—of Sayars—of Sayars, there was a vacancy cre­
ated, and that’s the only one I see on here.

Q. In the course of answering my questions concerning 
this answer, No. 19, or the answer to Interrogatory No. 
19, you mentioned that there was a stable employment situ­
ation at Dan River. When was the last time that you hired 
somebody up there? A. We have hired a man fairly re­
cently.

Q. Well, strike that and let me ask you this question. 
Have you hired anybody since July the 2nd, 1965 or tell us 
how many you have hired, if you have? A. Yes, we’ve 
hired one man.

Q. In the past three years—or two and a half years? 
A. Since the date you mentioned—July 2nd, 1965.

Q. All right, sir. Looking at this list, Mr. Thies, I notice 
Jesse C. Martin, whose race is listed as Negro, was pro­
moted from Semi-skilled Labor to Helper in Coal Handling. 
Do you know what his education is? A. No. See—was he 
promoted to—he was promoted to a Learner, He has since 
been promoted to Helper. I believe he is progressing up—

Q. Do you know what his education is? A. Yes. He 
was the Senior Semi-skilled Laborer who had a High School 
education.

Q. Have any other Negroes been promoted from Laborer 
[633 into higher classifications since July the 2nd, 1965? 
A. Yes, sir. We’ve promoted one Semi-skilled Laborer to 
■—-to Watchman.

Q. What’s his name? A. R. A. Jumper.
Q. Do you know his education ? A. He was again the 

Senior Semi-skilled Laborer who had a High School edu­
cation.

Q. Well, what created the vacancy into which he moved 
if there was a vacancy, Mr. Thies? A. In the case of Mr. 
Jumper!

A. C. Thies—for Defendant—Direct



70a

Q. Yes, sir. A. We needed a Watchman. We had a 
Watchman retire. I don’t remember his name or when he 
retired, but it was back last September, I  think, and we 
needed a man back in there, so naturally, we offered it to 
the Senior man who had the qualifications, which is a High 
School education.

Q. Mr. Thies, the Plaintiffs, in their complaint allege 
that the Defendant pays less wages than to white employees 
performing the same or similar work. Would you state 
whether or not Negro and white employees at Dan River 
ever do the same or similar work, and explain your answer? 
A. They can do—on occasions, they can do this same or 
similar work, but a general statement would be going back 
to our policy. We do not work a man out of his classification 
[64] up. We will work him out of his classification down 
and continue to pay him as that, but basically, the em­
ployees that are—that are doing maintenance work, their 
job is maintenance, and that’s what they normally do. Now, 
on occasion, the Mechanic A may pick up a broom and 
sweep out the Shop, and that’s what I mean when I say 
that they occasionally do the same or similar work because 
that is normally the job for the Laborer—Labor Depart­
ment, but if the Mechanic A is there and he’s got chips 
in his way or what have you, or if he’s got a little time on 
his hands and nothing to do, he may say, “Let’s pitch in 
and clean up these chips in front of the Lathe a little bit”, 
so to that extent only are these people doing the same or 
similar work. I can think of other occasions—for instance, 
when we had a boiler off the line. This is a real pressure 
time for us because any time a boiler is down, we have got 
capacity off the line, and we make every effort to use— 
we use planning to get our work done in a minimum time 
to get that equipment back in service to meet the load, so

A. G. Thies—for Defendant—Direct



71a

everybody pitches in, and for Laborers, they will, as I 
mentioned before, they will occasionally maybe mix some 
mud, they call it,—it’s a material they put in these Ash 
Hoppers—a Laborer may be in our—there may be a Me­
chanic in there mixing with a hoe at the same time, but 
that is not normally the Mechanic’s work, but he is being 
used there because this is a real emergency situation [651 
to get this thing back. The jobs that the laborers are doing 
under those conditions are Labor jobs. They are simple 
manual tasks that laborers do.

Q. Where the Mechanic is doing Laborer’s work, what 
rate of pay would he be getting? A. He would be getting 
his regular rate of pay as a Mechanic.

Q. Mr. Thies, have you read the depositions of the Plain­
tiffs in this case? A. Yes, sir, I have read through them.

Q. If the Court would permit me, I ’d like to lead him for 
just a minute so I can get the problem before him.

The Court: Go ahead and ask your question. If 
the Plaintiff objects, we’ll indicate it or we’ll make a 
ruling.

Mr. Ferguson: All right, sir.

By Mr. Ferguson:
Q. Some, or at least one of the Plaintiffs in this case, 

indicated in his deposition that at one time, he was knock­
ing doors and that now—first of all, tell us what “knocking 
doors” is? A. On the coal ears that come in, they are 
unloaded from the bottom, and there are the large metal 
doors on the bottom that are held by rotating dogs and 
you take a hammer and tap this dog and it rotates out 
of the way and you do this on both sides of the car, and

A. C. Tides—for Defendant—Direct



72a

the door just swings open £68] by gravity, and the coal 
runs out of the car.

Q. I see. Now, one of the Plaintiffs in his deposition, Mr. 
Thies, stated that he used to knock doors, but since that 
time, white employees are now knocking doors, and that 
they receive a higher rate of pay for doing that job than 
he did. Now, would you comment on that, and explain it 
to us, if there is any explanation?

Mr. Belton: Objection, Your Honor. I t’s leading 
and if he has read the deposition, he should identify 
the Party.

The Court: Can you identify the deposition, Mr. 
Thies? Do you recall?

The Witness: I don’t remember which man.
The Court: Are you familiar with the deposition?
Mr. Ferguson: Yes, sir, I have notes here. It will 

take me a little while to look it up, Your Honor, 
but I can get it for you.

The Court: No, wait a minute. Do you recall in 
one of the depositions that testimony to that effect 
was given, Mr. Thies?

The Witness: Not word for word, but I remember 
that the man made such a statement—yes, Your 
Honor.

The Court: You do remember that one of the 
depositions—remember that in one of the deposi­
tions?

The Witness: Yes, sir.
[67] The Court: All right. Overruled.
The Witness: Some years ago,—many years ago, 

our Laborers came to us and said that they were 
doing this work of knocking these dogs loose on the 
bottom of the coal cars as they came in and that

A. C. Thies—for Defendant—Direct



73a

they thought that was a Coal Handling Operator’s 
work. Now, we didn’t think so, and we still don’t 
think so. We think it is Labor work. Knocking the 
dog loose to drop a door down is Labor work as 
far as we can see, and still feel that way, but at 
that time, the decision was made that we would 
make a point of it—we would make an issue of it; 
if it was making the employees in the Labor Group 
unhappy, we would just provide that the Coal 
Handling Operators would do this job, and so they 
were at their request taken off of this work because 
they said it wasn’t something that Laborers should 
be doing. Now, we still feel that it was Labor work, 
but we didn’t argue with them. We just agreed to 
it and let the Coal Handling Operators do it.

Mr. Ferguson: All right, sir. If you would bear 
with me just a minute. Your Honor—

The Court: In other words, you are saying, Mr. 
Thies,—is this right—that you were letting person­
nel from your Labor Division do the knocking of the 
doors, at one time, and then you changed that in 
view [68] of, shall we say, some contention about 
it, and you let those from the Coal Handling De­
partment do the door knocking, and do I under­
stand that from that, that I might surmise that 
those from the Labor Department who were doing 
that job, knocking doors, were paid less than those 
in the Coal Handling Department, who were knock­
ing doors! Is that what I surmise out of this!

Mr. Belton: Your Honor, before you ask the ques­
tion, I would like to raise something at this point, 
and I call your attention—well, let me state the 
point, first, that we have attempted to get informa-

A. C. Thies—for Defendant—Direct



74a

tion both in the interrogatories and in depositions 
of the operations and facts pertaining to the opera­
tion, the promotion, and etcetera of the Company 
prior to July 2nd, 1965, which is the effective date 
of the Act and in particular, I call your attention 
to Deposition #11 which is the deposition that we 
took of Mr. Thies in which we posed such a ques­
tion on Page 20. Now, we have no objection to 
going back, but we think that to the extent that the 
Defendant can go back and get these events that 
occurred prior to 1965, then, we should likewise be 
permitted to do so, and I raise that at this point 
because I’m quite sure we will have questions.

The Court: When has this happened?
[693 Mr. Ferguson: It has not been established, 

Your Honor.
The Court: Well, let’s establish it, and it wouldn’t 

be important back of July 2nd, ’65.
Mr. Ferguson: All right, sir, I withdraw the ques­

tion.
The Court: Or would it?
Mr. Belton: We have no objection to going back, 

Your Honor, but they have interposed and instructed 
their witness not to answer. In fact, they instructed 
this one not to answer a question pre-dating July 
2nd, 1965. We take the position that some informa­
tion as to the operation of the Company is relevant 
to what is going on now, notwithstanding the fact 
that the Act became effective July 2nd, 1965, be­
cause we think it’s impossible to understand now, 
unless the Court has some appreciation of how the 
Company operated as to promotion and hiring.

Colloquy



75a

The Court: Here was a law, and presumably, if 
they were doing something that was incorrect and 
here is a law that prohibited presumably—and I say 
presumably, they would amend whatever they are 
doing to comply with that law, so I am not exactly 
clear on the fact that what transpired before July 
2nd, ’65, would help to decide the issue as to whether 
they discriminated after [69] July 2nd, ’65. I would 
rather think that what transpired before would have 
little bearing on the issue of what happened after 
the effective date of the Act, unless we can pose 
the old rule, “Something that is established is pre­
sumed to continue,” or something like that, but I 
hate to do that in view' of the Law. Well, let’s 
keep it after July 2nd.

Mr. Ferguson: All right, sir.
The Court: If that’s your question!
Mr. Ferguson: Your Honor, the reason for my 

asking that question wras that this is so difficult to 
go through a set of depositions and interpose objec­
tions every time when you ask a question, and you 
don’t specifically tie it to that date. Now, in this 
particular deposition—now, on occasions I did ob­
ject to it and directed the witness not to answer, 
but as I look through this deposition, he hadn’t 
tied it down to any particular date,—the witness, 
at the time, and I am perfectly willing to withdraw 
it, but I felt like that this was an area where we 
had to meet that proof because it is not tied down 
in his deposition as to whether that occurred be­
fore July the 2nd, ’65, or after, and that’s the only 
reason.

The Court: Can he tie it down?

Colloquy



76a

Mr. Ferguson: Yes, sir, I think he can, but his 
[703 answer would probably be stricken.

The Court: You withdraw the question?
Mr. Ferguson: Yes, I withdraw the question.
Mr. Belton: Your Honor, I don’t want to belabor 

the point. Well, we will meet this again, I am quite 
sure, at the time that we are given an opportunity 
to cross examine the witness.

The Court: That means, I’m not going to let you 
ask him about it prior to July 2nd, 1965.

Mr. Belton: We’re precluded, Your Honor?
The Court: I’m not going to let you ask, and I ’m 

certainly not going to open it up on cross examina­
tion. Isn’t that the basis you all have taken these 
depositions on—that July the 2nd was the cut-off 
date?

Mr. Belton: No, sir, Your Honor. That has been 
a point of contention with respect to interrogatories, 
and it also has been a point of contention with re­
spect to the depositions, and it has never been ruled 
upon because the Defendants take a position con­
trary to that of the Plaintiffs. We take the posi­
tion that some information as to what transpired 
before July 2nd, ’65, is relevant, and we have not 
been operating under—that we have been limited to 
that date. We feel that it is relevant.

The Court: I don’t see that what transpired prior 
[713 to the Act—the effective date of the Act would 
be relevant on the issue—that you all really agree, 
you know. I have to answer in this as set out. You 
differ somewhat in the Final Pre-Trial Order. You 
break it down—Paragraph 16—the Plaintiffs do, but 
each time, in reference to Title 7 and the Civil Rights

Colloquy



77a

Act of ’64, and it is a fact that July 2nd, ’65 is the 
date. There’s no disagreement about that, is there?

Mr. Ferguson: No, sir.
. Mr. Belton: Of the effective date, no, sir.

The Court: Well, you have a problem of how far 
you can go back, you know. I am ruling that the 
relevant evidence is that which is restricted to the 
events transpiring—the effective date of the acqui­
sition, July 2nd, 1965— You may proceed.

Mr. Belton: Your Honor, on this point, as to 
what transpired on the date—

The Court: What did you say?
Mr. Belton: I ’d like to proffer the evidence on 

what it might show.
The Court: You may offer the evidence, and I of 

course have indicated that I do not think that that 
would be competent, but certainly, I want to pro­
tect you on the record, and I will allow you to put 
it in, so that it might be examined in the event of 
an appeal. [72] Whether that would be all right— 
but I don’t see howr that would help you, because if 
I am in error on it and have not considered it, 
then it would have to come back, you know, for the 
Court to make some determination on it, and then 
go back again, but if you wish—you think that you 
would like to offer the evidence and then have it 
actually filed with the Court and show my ruling, 
you may do so.

Mr. Belton: What—just one of two more sen­
tences, Your Honor. I would like to call the Court’s 
attention to several cases that support the position 
that we are taking. These are titled, “Seven Cases 
That Have Been Decided on the Merits.” I don’t

Colloquy



78a

have the citation on hand, but I can get them for 
you for the Court’s perusal. One is, Bowe-Colgate, 
B-o-w-e-Colgate, in which the Court allowed the 
Parties to introduce evidence as to activities back 
to World War II. More in point is a recent case. 
This was a sex discrimination case under Title 7, 
more recently, Quarles vs. Phillip Morris, involving 
racial discrimination, in which the Court did allow 
the Parties to go back to at least 1959, if you will, 
in terms of the steps that were supposedly under­
taken to eliminate the problem, and the bearing that 
they would have had on what the Defendant was 
doing presently under the Act. As I said, I don’t 
want to [73] belabor the point.

The Court: Well I just simply can’t see. If a 
fellow were speeding on January 10th, 1968, and 
he is apprehended, and I realize this is not a crim-- 
inal case, and then, he is apprehended again on 
January 15th, I don’t know—we all agree what took 
place on January 10th has no bearing on whether 
he was or was not speeding on January 15th. That 
seems rather elementary to me. I’d be interested 
in reading the case. Do you have the citations? Dur­
ing the recess, would you give them to Mr. Blanco?

Mr. Belton: Eight. The other one I have is just 
a mimeographed copy. I can make a copy of it avail­
able to the Court.

The Court: All right. I ’d like to see it.
Mr. Belton: And to Counsel for the Defendant.
The Court: I reserve the right to change my mind, 

if these cases will convince me that I should. All 
right.

Colloquy



79a

Mr. Ferguson: I assume Your Honor is going to 
let me be heard at the time?

The Court: Yes.
Mr. Ferguson: All right, sir. Thank you.

By Mr. Ferguson:
Q. Mr. Thies, are you familiar with the Company’s pol­

icy regarding overtime at the Dan [74] River Steam Sta­
tion? A. Yes, sir.

Q. On what basis are overtime opportunities provided? 
A. There are two bases for overtime at Dan River. The 
first is what is called, “Scheduled Overtime.” Each em­
ployee at the Power Station works an extra day every 
fourth week—one extra eight-hour day. He works a normal 
forty-hour five-day week, and every fourth week, he works 
six days or forty-eight hours that week. Now, that eight 
hours is at overtime rates. Now, this is called, “Scheduled 
Overtime.” The other type of overtime is categorized as 
“Emergency Overtime,” or “Call-out Overtime,” if you will. 
This overtime is kept to an absolute minimum, consistent 
with the needs of the operation of this Power Station. I 
instruct the Superintendents to keep this as low as they 
can because this is a direct cost to the operation of the 
Station, above and beyond the normal pay of employees, 
and it adds to the Station’s operating cost. So this is 
emergency operating time only, and we use it only in classi­
fications where a man is necessary to be called out, and 
under emergency situations, where we have to have more 
man power than can be provided by the normal working 
hours of the employee. So these are the two types, really' 
of overtime that we have at the Power Station.

Q. Mr. Thies, in answer to Interrogatory #34—[753 In­
terrogatory #34 requested the following information:

A. C. Thies—for Defendant—Direct



80a

State the Name and Race of each employee who has worked 
overtime on any job at any time since July the 2nd, 1965, 
and with respect to each employee, indicated, A, the dates 
on which such employee worked overtime, and the job per­
formed by working overtime. I hand to you an instrument 
that has a heading, 34A and B with the following columns, 
Date, OT hours, Name, Race, Job, OT hours. There are 
twTo columns there of the same thing, consisting of twenty- 
six pages, and ask you if that represents the answer that 
you gave to Interrogatory #34. A. Yes, sir. That ap­
pears to be a Zerox copy of it.

Q. Mr. Thies, have you made an analysis of these twenty- 
six pages and the overtime opportunities as were provided 
to employees listed on those twenty-six pages; that is, from 
July 2nd, 1965 until February, ’67, or answers to interrog­
atories when they were supplied? A. Yes, we did.

Q. What did your analysis show, if anything? A. Well, 
we broke this list down by departments, within the Power 
Station, and we took the figures off of these sheets, as to 
the actual overtime hours that were worked by these em­
ployees, and we knew the straight time hours, and we came 
up with a figure by departments in the Station, that gave 
the percentage of overtime hours worked [76] to total 
hours worked by the employees, within these departments. 
It showed, for instance, that in the Coal Handling Depart­
ment, the employees in Coal Handling Operations worked 
10.39 per cent of their total working hours were overtime 
hours. In the Labor Department, 5.22 per cent of their 
hours were overtime hours. In the Operating Department 
of the Power Station, 5.39 per cent—very close to what 
the Laborers were—a little bit more than the Operating 
Group, were overtime hours. In Maintenance, 7.84 per 
cent of the total hours worked -were overtime hours, and

A. C. Thies—for Defendant—Direct



81a

in the other departments which we lumped together—the 
other departments, the Testing and the Laboratory and 
the Clerical and the Watchman, the lowest of all in the 
Power Station, was 5.19 per cent of their hours were over­
time hours.

Q. I noted, Mr. Thies, that Coal Handling got 10.39 per 
cent of the overtime. Is there any reason for that? A. 
Yes, sir, for the period covered here, we had problems 
getting uniform delivery of coal. The coal market in this 
country was badly upset, and actually coal was hard to get 
and shipments were very erratic, and we would get slug— 
slug with many, many cars of coal, and then, there wouldn’t 
be any cars for awhile, and this was the result—of work­
ing overtime hours—to prevent paying demurrage on such 
many cars of coal. Also, we had some frozen coal during 
this same period covered, which required working [77] 
overtime in the Coal Handling Operations to get that coal 
unloaded and into the bunkers for a continuous operation 
of the Power Station.

The Court: What do you mean by “frozen” coal?
The Witness: The coal actually freezes, and

there’s enough moisture that gets into the car, with 
it cold, and it freezes. Mostly, it freezes in from the 
sides, a foot or a foot and a half, and you can’t un­
load it. It will come another car so we have to get 
in there and put—and put heat under the cars. We 
have to get in—we have to get in with car shakers, 
and shake these cars. We beat on the side of—sides 
of the cars with hammers, to try to break this up, 
and in many cases, we are unsuccessful, and we 
have to push these cars off down the track and let 
them stay in the sunshine, if it’s sunny that day,

A. C. Thies—for Defendant-Direct



82a

and let them thaw a little bit, and then bring them 
back, and it is more than you can do in eight hours 
time to get enough coal unloaded to get it into the 
bunkers to operate the Station.

By Mr. Ferguson-.

Q. With respect to the frozen coal situation and other 
situations, where you have excess amounts of coal to un­
load, is this overtime work a voluntarily or involuntarily-— 
A. Well, we ask our employees to stay over on [78] call­
out, and in almost all cases, they cooperate with us very 
well. You might say, it is requested of the employees to 
work this overtime. If a man has a special situation that 
he has got to get off for, we give consideration to that; 
if he’s got problems or something and can’t work—work it, 
we make arrangements. We might even call out someone 
in another department to come in and help temporarily, 
if we didn’t have enough men in that department to do 
the work. Now, there are some Laborers, who clean up, 
in Coal Handling, and under these overtime conditions in 
Coal Handling, in the case of the frozen coal, there’s just 
not as much cleaning up to do, because we aren’t unload­
ing the coal at as rapid a rate. In addition to that, at 
night, it’s rather dangerous to be in, cleaning up under 
these conveyor belts, in the condition at night where the 
darkness—and it isn’t as light at night, and it isn’t as safe 
to use clean-up people.

Mr. Ferguson: I believe His Honor had a ques­
tion.

The Court: When you get to a point where it will 
interfere as little as possible in this examination, 
we will take our noon recess.

A. C. Thies—for Defendant—Direct



83a

Mr. Ferguson: We’re just about there, Your 
Honor.

The Court: Are you about to conclude your exam­
ination?

Mr. Ferguson: No, Your Honor, I think it would 
be [79] better if we adjourned for lunch until we 
got to the other area.

The Witness: I might say, in further reference 
to this analysis that we made,—to me, it illustrates 
very clearly that we call out only those skills that 
we need. For instance, the Maintenance people get 
7.84 of their time as overtime hours, indicates for 
equipment break-downs, we had to call on their ser­
vices on an emergency basis quite frequently, where­
as, the Operating Personnel and the Laboratory and 
Test Personnel, we didn’t need as much. In fact, 
we needed the Laboratory and Test Technicians, 
least of all, and so they weren’t called out. They 
have a lower overtime, percentage-wise than any 
other group or department in the Plant, so we call 
out the people that we need as required by the job, 
and we limit this overtime as “Emergency Over­
time,” but everyone else gets the same amount of 
“Scheduled Overtime,”—all departments.

Mr. Ferguson: Your Honor, I believe this is a 
convenient place, if it’s all right with you?

The Court: All right, Mr. Thies, you may come 
down.

(Witness excused.)

[80] Let’s take a recess until 2 :00 o’clock.
(Lunch recess was taken.)

A. C. Thies—for Defendant—Direct



84a

The Court: Mr. Thies, I believe you were on the 
stand, sir. If you will please, come back.

(Witness resumes the stand.)
All right, you may proceed.

By Mr. Ferguson:
Q. Mr. Thies, when we recessed for lunch, you had fin­

ished stating what your analysis of the answer to Inter­
rogatory #34 showed, and I believe you stated that Coal 
Handling had 10.39 per cent of the overtime total—that is 
a percentage of the overtime to straight time hours. I be­
lieve you further stated that this was attributed in part 
to the frozen coal situation that existed during this period 
of time at the Dan River Station. Would you state, please, 
sir, what is involved in the frozen coal situation—what 
kinds of jobs have to be done in connection with thawing 
the coal, if that is what is done? Explain that to us, please, 
sir. A. Well, I thought I had pretty well gone over the 
routine part, Mr. Ferguson. Now, maybe I didn’t say that 
this part I explained was only an occasional circumstance, 
when the coal would be frozen, and is really only a small 
part of the total Coal Handling Operation. In other words, 
that’s just preliminary, really, to the Coal Handling Oper­
ation as such. The unloading of the coal is just a pre­
liminary [81] step, really.

Q. Now, Mr. Thies, as Vice-President of Production and 
Operation, you are responsible for the promotion policy at 
Dan River, are you not? A. Yes, sir.

Q. As of July 2nd, 1965, what was the promotion policy 
at Dan River ? A. I will just put this in my owTn words. 
The promotion policy of Dan River was—was within the 
departments, to promote the senior man to any job vacancy

A. C. Tides—for Defendant—Direct



85a

that comes open, if qualified,—the next senior man in the 
lower classification, if he’s qualified. Now, that’s within 
departments of the Power Station. Now, between depart­
ments of the Power Station, the policy is that any indi­
vidual who is working in one of the so-called “outside” 
departments at the Power Station—outside of the Station, 
proper—

Q. Such as what! A. Such as Coal Handling or Labor 
or Watchman. In order to be qualified for a promotion to 
the higher skilled jobs within the Power Station, they must 
have a High School education or we would accept a GED 
equivalent of a High School education.

Q. What does “GED” mean? A. I think that is a Gen­
eral Education Equivalent that’s issued, for instance, by 
the Armed Service people.

[823 Mr. Ferguson: I ’d like to request that the 
Reporter mark this as “Defendant’s Exhibit 1.”

(Defendant’s Exhibit 1 was marked for identifi­
cation.)

Q. Mr. Thies, this is a document which has been marked 
for identification as the Defendant’s Exhibit #1, and I 
show it to you and ask you if you recognize it? A. Yes, 
sir, I do.

Q. What is it! A. It is a letter that I wrote to all 
Power Station Superintendents on September 22nd, 1965, 
modifying our promotion policy as regards to the promo­
tion of personnel from the outside departments into the 
Station.

Q. In what respects does it modify the policy? A. It 
sets forth the fact that I would accept a passing score on 
the two tests that are normally used for employment, as

A. C. Thies—for Defendant—Direct



86a

satisfying or in lieu of the requirement that our policy 
has had for a number of years—that a man have a High 
School education to he considered for the more highly 
skilled jobs.

Q. Does this policy apply to everybody? A. Yes. I 
might tell you a little bit about how I got into this. The 
employees in Coal Handling Operations had for some years 
approached me as I made visits around, and asked me if 
there wasn’t some way they couldn’t get into [83] Mainte­
nance, for instance. A man would say, “I think I can do 
Maintenance work.” Well, if he didn’t have a High School 
education, then he wasn’t eligible to come into these higher 
skilled jobs, and this was because we had found from ex­
perience that we were getting individuals—before we had 
this requirement, we were getting individuals who couldn’t 
progress through the classifications. They were limited, 
and they would stop. So, I felt like that, all right, on July 
the 2nd, we had put into effect some tests for employment 
that were designed to yield us a man of average intelli­
gence to be a Duke Pow’er employee, so I seized on these 
tests as being a possible way that I could free-up these 
men who were blocked off,—that they could use this means 
of showing me, “All right, I can do the job. I ’ve got a 
general intelligence level that would permit me to have a 
reasonable chance of success in some of these higher jobs, 
even though I don’t have a High School education for some 
reason.” Now, there is no requirement that anybody take 
these tests. The letter just states that we will accept these 
in lieu of a High School education, and of course, the mak­
ing of these two scores on these two tests is not mentally 
equivalent to a High School education. I just said that I 
would accept those scores as an indication that a man had 
enough intelligence to be reasonably assured of being sue-

A. C. Thies—for Defendant-—Direct



87a

cessful in the more skilled jobs in Operation and Mainte­
nance, in these [84] sort of jobs.

Q. Now, in point of time, to whom was this requirement 
extended, or was this privilege extended? A. Now, I did 
not feel that we should offer this to new employees com­
ing into the Plant, because they had to meet the established 
hiring practices which were to have a High School educa­
tion and also, to have a passing grade on these two tests. 
That’s the requirement for employment in other than the 
Labor Classification. Now, if a person wants to apply for 
a Labor Job only, then, he is permitted to take a very 
simple test, which I believe was introduced this morning— 
this Revised Data Test—and that only qualifies him to be 
a Laborer, but this test applies to all employees at the 
Station—Negro, white,—both alike.

Q. Does it apply to employees who are presently em­
ployed? A. Yes, it does. Now, all right, I lost the “train” 
there; just a minute. I didn’t feel that it was right to 
extend this to the new employees, but everyone who was 
on the Pay Roll as of September 15, 1965, I said, could be 
covered, under this modification, or if you will, I liberal­
ized the requirements a little bit to try to help folks 
qualified for these higher jobs.

Q. Is your testimony, then, Mr. Thies, that the policy is 
to accept minimum acceptable scores on the two [85] tests 
referred to in your letter, which are the Wonderlic and 
the Mechanical AA, to accept those scores in lieu of a 
High School education, and that policy is applicable only 
to those who were on the Pay Roll, as of September the 
15th, 1965? A. Yes, sir.

Q. Is that the policy? A. Yes, sir.
Q. Now, Mr. Thies, what does the letter show—this 

Plaintiffs’ Exhibit 1—as a minimum acceptable score on

A. C. Thies—for Defendant—Direct



88a

the A. F. Wonderlie Test?—I’m sorry; that’s Defendant’s 
Exhibit 1. A. 20, on the Wonderlie.

Q. And what for the Mechanical A A ? A. 39.
Q. Now, how were these scores determined, Mr. Thies? 

A. These scores were determined by the Personnel Depart­
ment of Duke Power Company in consultation with Dr. 
Moffie, Consulting Psychologist, and were put into effect 
over the whole entire system for employment tests, to 
yield us the type of individual that we felt that we must 
have.

Q. Do you know what the 50th percentile of the High 
School graduates make on the Wonderlie Test? A. I be­
lieve it’s 21.

Q. 21? [86] A. 21 or 22. Somewhere in between 21 and
22.

Q. And you have accepted 20? A. Yes, it’s my under­
standing that—this is a level that is between 11th and 12th 
grade capability—somewhere along in there.

Q. State, if you know. Mr. Thies, what the 50th per­
centile of those having completed the 12th grade make—- 
that is, what is the norm of the average High School grad­
uate on the Bennett Mechanical A A? A. I believe it’s this 
39 that we have here.

Q. Now, is there any flexibility with respect to these 
minimum-acceptable scores? A. Yes. We have instructed 
our Personnel that administer these and grade them that 
if a man is one point over on the Wonderlie and one point 
under on the Mechanical AA, we would accept that and 
vice versa. I mean, we have said that we would take one 
point less on one test, if he’s one point over on the other, 
but we have held to those limits.

Q. It has been stipulated, Mr. Thies, that Mr. Richard 
Lemons — that Lemons administers the tests at the Dan

A. C. Thies—for Defendant—Direct



89a

River Station — do you know whether or not Mr. Lemons 
has any special training in the administration of tests!

#  #  #  #  *

£873 * * *
By Mr. Ferguson:

Q. Who administers the tests at Ran River? A. There 
are three people who are capable of it, so that our Mr. 
Richard Lemons has administered the tests at Dan River, 
and he has had training in this. He went to Charlotte and 
attended a training session, which explained to him along 
with others in the Company that would administer these 
tests, the method of administration—how to score the 
tests, how to provide the materials for the employee, and 
the use of the test manuals, and it’s a fairly simple thing 
[88] to administer these tests. They have strict rules and 
time that you must go by, and generally it was instruction 
of the personnel that would administer the test, and how 
they were to be administered.

Q. Who conducted the training session? A. I’m not 
sure who conducted that session that he was in, but it 
was someone from the Personnel Department, I believe. 
I believe that Girard Davidson was in charge of the ses­
sion. Mr. Austin was at the session. I’m not sure who 
conducted the session.

Q. Do you know whether or not Mr. Lemons also scores 
the tests? A. Yes, he does.

Q. Where are the tests administered? A. We have a 
Conference Room there that is a place that is a little 
smaller than this Courtroom, that has tables and chairs, 
and it’s a quiet place, and it’s free from disturbance and 
generally, this is where the tests are administered—in a

A. C. Thies•—for Defendant—Direct



90a

place where there wouldn’t be—wouldn’t be distractions 
to the person taking it.

Q. What, if anything, is yonr policy as to re-testing for 
failures! A. Well, we felt like that—a man could con­
ceivably be nervous when he was first taking this test, 
and for some reason, feel bad, or make a poor score the 
first time, so I [89] instructed the folks to re-test again 
in six months; if the man did not pass and wished to take 
it again, we would give it to him again in six months.

The Court: Where is your Dan River Plant!
The Witness: It is close to Draper. It is be­

tween Leaksville and Spray—over in that area.
The Court: That’s the general vicinity that it’s 

in!
The Witness: Right.

By Mr. Ferguson:

Q. Is there any limitation on the number of times that 
an applicant may take the test? A. No, there is no 
limitation on this, and there’s no requirement that he 
take the test. It is perfectly voluntary. We’ve had the 
requirement for years and years and years that you had 
to have a High School education, and this is just a way, 
if he didn’t have a High School education,—that I would 
accept these scores in lieu of that.

Q. Does the Company have any other policy whereby 
an employee may get an education or may get a High 
School education, if he so desires? A. Yes, we do. In 
fact, I have encouraged the folks in this particular action, 
to take advantage of the Company’s tuition refund. I 
talked personally to a number of them, and asked them 
to consider this at night or on their own time—that the 
Company would pay three-fourths of the [90] cost of

A. G. Thies—for Defendant—Direct



91a

any expense, and that we would consider this type of 
training to get a High School equivalency certificate, as 
job related. So far, I believe only one has applied under 
Tuition Refund. I believe one man—

Q. Now, you say, “One man;” do you know what his 
name is f A. I forget which one he is.

Q. Is he one of the Plaintiffs ? A. I believe he is, yes,— 
one of the Plaintiffs in the case. I believe he has applied 
under Tuition Refund, but this is a means by which they 
could meet this High School diploma requirement.

Q. Mr. Thies, have any Negro employees taken the test? 
A. Yes, sir, they have.

Q. Have any white employees taken the test? A. Yes, 
sir, they have.

Q. Do you know whether or not they passed or failed ? 
A. None of the white or Negro; employees who have 
taken these two tests so far have passed both tests suc­
cessfully. There are three who have taken them.

Mr. Ferguson: Your Honor, if I could just have 
a couple of minutes to get my things together here.

The Court: All right.

By Mr. Ferguson-.

Q. Mr. Theis, this is a document [91] that is entitled, 
“Registration and Application for Tuition Refund, Duke 
Power Company.” I previously asked you if you knew 
whether or not any of the Plaintiffs had made application 
under the Tuition Refund Program. Does this refresh 
your recollection? A. Yes, sir.

Q. What is the name? A. Willie R. Boyd, Semi-skilled 
Laborer.

A. C. Thies—for Defendant-Direct



92a

Mr. Ferguson: Your Honor, at this time, I don’t 
desire to enter into evidence the charge that we 
received from the Equal Employment Opportunity 
Commission for which we gave a receipt, in view 
of the position I have taken that the Statute rules 
such evidence incompetent. I would, however, like 
to ask Mr. Thies whether or not this is what he 
receipted for, or is this representative of what 
he receipted for, and I would like to go through 
it in that way, if I may!

The Court: It’s up to you as to whether you 
want to introduce it or not. I ’m not insisting that 
you do. Whatever the Commission has said about 
it is not going to have any hearing on me one way 
or the other, you know. Really, what they put in 
there—I will have to look at it from the evidence 
that’s before me, to determine whether there is or 
is not.

Mr. Ferguson: All right, sir. That completes 
[92] my examination of this witness.

The Court: I ’m learning about this case. You 
already know about it. You obviously require a 
High School education. You say, for years and 
years, you required a High School education in 
connection with some of your classifications and 
some of your jobs. In which jobs have you required 
a High School education or its equivalent, Mr. 
Thies!

The Witness: For over ten years, we have re­
quired a High School education for Watchman, Coal 
Handling Maintenance, Operating, Lab and Test 
jobs.

A. C. Thies—for Defendant—Direct



93a

The Court: Well, maybe, if you will approach it 
from the other end! What didn’t you require?

The Witness: Labor.
The Court: Just Labor?
The Witness: Right.
The Court: But if—
The Witness: Your Honor, we’ve had some ex­

periences. The nature of our business is becoming 
more complex all the time. We have got seven or 
eight computers on order. We are moving rapidly 
into the nuclear power area with our Leconia Sta­
tion. We use our existing Power Stations as a 
nucleus pool from which to draw man power with 
the skills required to move into new Stations— 
new locations, and they form [93] the nucleus of 
the experienced people, into moving into these more 
complex areas. Many years ago, we found that 
we had people who, due to their inability to grasp 
situations, to read, to reason, to have a general in­
telligence level high enough to be able to progress 
in jobs—that we were—that we were getting some 
road blocks in our classifications in our Power Sta­
tions, and this was why we embraced the High 
School education as a requirement. There is nothing 
magic about it, and it doesn’t work all the time, 
because you can have a man who graduated from 
High School, who is certainly incompetent to go 
on up, but we felt that this was a reasonable re­
quirement that would have a good chance of suc­
cess in getting us the type of people that are 
required to operate the more complex things that 
we are faced with all the time, and this was the 
reason behind this. Now, the reason that we offered

A. C. Thies—for Defendant—Direct



94a

the test, was an effort on my part that backfired. 
I was trying to help people who didn’t have this, 
to some way get around going through all this 
schooling—to take English and Spanish and all 
this other stuff, which really didn’t bother me too 
much. If they had the intelligence to do the job, 
that’s all I was interested in, but I didn’t want to 
break my policy because then, I would have to 
take people in that I knew didn’t have the skills to 
do 194] this, and they would have a hard time with 
it. This was the background behind it.

The Court: I just wanted to be informed. I  don’t 
complain about your policy at all. I  understand 
that the shoe manufacturing Company up in Wilkes- 
boro, has the very same policy, even with jani­
torial help—that unless you have a High School 
education, why, they don’t want you, because it 
does, as you say, interfere with their in-planned 
promotion, which sometimes brings on complica­
tions. All right. Mr. Belton, you may cross examine.

Cross Examination by Mr. Belton:
Q. I think, Mr. Thies, you testified at the beginning of 

your testimony as to the kinds of jobs that were performed 
by various employees in the respective categories that 
you have at Duke Power! Is that correct! A. Yes, sir.

Q. Let me ask you, do you have written job descriptions! 
A. We do not.

Q. On what basis do you determine what the job con­
tent of a particular job category would be! A. It’s deter­
mined by practice and by many years of doing these jobs, 
and by an understanding between the Supervisor and the

A. C. Thies—for Defendant—Cross



95a

man in any classification as to what his duties E953 are. 
It is explained to each man what his classification is. 
He knows from actual practice what his job requirements 
are, but these are not written out, as such.

Q. Have the job content in performing a job, has it 
changed over the years? A. Not appreciably, no.

Q. I think you testified, Mr. Theis—let me show you 
because I ’ll have reference to it. Mr. Theis, do you have 
before you Answer Interrogatory #12B which lists the 
job classifications? A. 12B?

Q. Yes. I think it was handed to you by Mr. Ferguson? 
A. I’ve got it in here somewhere. 12A and C, I’ve got. 
Let’s see. Yes, here it is—12B.

Q. Referring to Answer 12B of the Interrogatories, 
is a listing of the job categories in the various depart­
ments. I think you testified that the normal way for a 
person to advance in any one particular category would 
be starting at the bottom—starting at the bottom lowest 
job and moving up to the next highest job? Now, is that 
correct? A. That’s the normal way, yes, sir.

Q. My question is, have there been instances in the past 
five years in which an employee has not moved up the 
progression chart in the normal way that you referred to?

[96] Mr. Ferguson: Objection.
The Court: I will allow it, restricted to since 

July 2nd, 1965, the effective date of the Act.
The Witness: Your question is—if I understand 

it correctly—is are there any employees who have 
not moved up the progression scale in the normal 
way, when a vacancy was created above?

Mr. Belton: That’s correct.

A. C. Thies—for Defendant—Cross



96a

The Witness: Yes, there have been some. I’m sure 
whether it was prior to July 2nd or after, but I 
know in one case, we had two men in the Pump 
Eoom at the Power Station—the Pump Operators 
—that were not High School graduates, but had been 
there for many years, and when time came for pro­
motion, they said, “We can’t do the Control Opera­
tor’s job, and we don’t want to be promoted,” so 
we moved around them, but I don’t know of any other 
particular ones.

By Mr. Belton:
Q. Referring to Answer 12B again, and particularly the 

category of Laborer, how long have you had a job classi­
fication for Auxiliary Service Man? A. About— oh, a 
year and a half or a little less, maybe.

The Court: Now, what do you mean by Auxil­
iary Service people?

The Witness: An Auxiliary Service Man was a 
£97] classification which we created, and I’m not 
sure of the date, but it was a year or year and a 
half ago, into which—into which we could promote 
anyone in the Power Station, but particularly the 
semi-skilled Laborer who exhibited skills that were 
extraordinary. Maybe he could do a little bit of 
rough carpentry work or some brick work or some­
thing like that, or maybe he had other special skills 
that warranted a little bit more money even though 
he could not be promoted due to his lack of a High 
School education, into the higher classifications in 
the more skilled jobs—that this was a way to re­
ward the man with a special skill that might come

A. C. Thies—for Defendant—Cross



97a

along, and it was just a merit classification that we 
put in there. At the present time, there is no one 
in this at Dan River.

The Court: Let me ask you this, Gentlemen. I 
am going to call on you when this matter is com­
pleted, to give me proposed Findings of Fact and 
Conclusions of Law. Each of you, now, are you 
going to want a copy of the transcript in this case?

Mr. Ferguson: Yes, sir.
Mr. Belton: Yes, sir.
The Court: It has something to do with my note 

taking. I can listen better if I don’t have to take 
notes. All right.

[98] By Mr. Belton:

Q. Looking again at 12B which you have before you, 
were the jobs performed—and I understand that you tes­
tify that you have no persons in the Auxiliary Service 
category—would the jobs performed by a person in the 
Auxiliary Service category, have been jobs which would 
have been performed by persons who,—in the Labor semi­
skilled category? A. That’s a little bit difficult to answer, 
but I will try from this standpoint. It’s almost like the 
explanation I gave this morning—for a promotion from 
Mechanic B to Mechanic A. The man who received this 
promotion to Auxiliary Service Man, might have as his 
normal duties, doing janitorial work, say, in an area of 
the Power Station, and this still might be his normal duties, 
but he had the special skills that on occasion we called on 
him to exercise these special things that warranted his 
promotion to Auxiliary Service Man in the first place. 
Then, certainly he would be an Auxiliary Service Man, 
and he would still normally be doing his other job, but

A. C. Tides—for Defendant—Cross



98a

he would also have these skills that had caused us to 
promote him in the first place to Auxiliary Service Man, 
so I don’t know whether this answers your question or not, 
but he could be doing some of the same tilings he was 
doing before he was promoted. It is not—there is not a 
sharp line of demarcation, and it doesn’t create a vacancy. 
He is not satisfied, and he [993 doesn’t become a specialist, 
by any means, but he is still doing his regular job.

Q. Do you have any white employees in the Laborers 
Department in the job category of Laborer, referring 
again to your 12B? A. No, sir, we do not.

Q. Do you have any white job category Laborers, semi­
skilled? A. No, we do not.

Q. Now, do you know whether the Labor Foreman is 
Negro or white? A. He’s white.

Q. Do you know what his educational background is? A. 
He does not have a High School education, but I couldn’t 
tell you just how far he got in school. I don’t remember 
that detail.

Q. Do you know whether you have an Assistant Labor 
Foreman? A. No, we have no Assistant Labor Foreman.

Q. Now, my question is this,—did you have whites in 
the job categories below Labor Foreman prior to July 2nd, 
1965?

Mr. Ferguson: Objection.
The Court: Sustained. I have read parts of this 

decision, and I see nothing—there was evidence that 
[100] went in prior to July 2nd, ’65.

Mr. Belton: Your Honor, even though it’s not 
demonstrated, in the opinion that you have before 
you—

A. C. Thies—for Defendant—Cross



99a

Colloquy

The Court: It doesn’t say whether it’s objected 
to or not.

Mr. Belton: Eight. As I am saying, and I am 
trying to explain the circumstances to which I have 
brought it to the Court’s attention; the case was 
handled—persons held the same office, which asso­
ciated—I know the same objections were raised.

The Court: Well, how far do we go back then! 
Do we go back to July 2nd, ’64 or to July 2nd, ’63, 
or just where do we go with this, then!

Mr. Belton: Your Honor, I think it depends on 
the particular line of evidence that is being de­
veloped. I think that under—in any area that the 
Party should be able to go back at least as far 
as July 2nd, 1964, which is the date that Title 7 
was passed, along with other portions of the Civil 
Rights Bill. However, there is legislative history 
to indicate that the reason why Title 7 did not 
go into effect on July 2nd, ’64, as did other provi­
sions of the Act, was to allow a period of adjust­
ment.

The Court: To allow a period for them to get in 
compliance—

[1011 Mr. Belton: The question that we have 
before us now, your Honor, in this case is whether 
the Parties are in compliance, and in order to 
determine whether they are in compliance, we can­
not focus specifically on the date in which they 
were supposed to have been in compliance, at 
least when they apply it to this, at this stage. 
Now, I think after the Act has been in effect maybe 
ten or twelve years, during the time, one needs to 
establish whether it is or not in compliance, need



100a

Colloquy

not extend beyond—back beyond July 2nd, ’65, but 
I think that at this stage, when the cases are being 
brought under Title 7, that they’re being tried, 
that the Court needs this cross-section in order to 
make this determination.

The Court: I understand if you could show that 
this Company had a system of classifications—a 
classification that was discriminatory in June of ’65, 
that I could assume from that, that they didn’t cor­
rect it, by the effective date of this!

Mr. Belton: Your Honor, let me refer to the 
language at least in the Quarles opinion, which sug­
gests that it’s necessary to go back beyond the date 
—the question that is posed on Page 17 “is our 
present consequences of past discrimination covered 
by the Act?” Now, what the Court held in the 
Quarles case is that [1023 as of January 1, 1966, 
Phillip Morris no longer discriminated. The Court 
also posed a problem, given a body of Negro prob­
lems, wherewith the Company prior to the effective 
date of the Act, who could not move—could not go 
into certain categories because of their race, are they 
denied benefit of Title 7? And this opinion says, 
“No,” and the Order is addressed only to those 
persons who were employed prior to January, 1966, 
when the Court found that they were no longer 
discriminated, and says something has to be done 
with this category of people. I’m saying, in this 
case we have the same situation here, because no 
Negroes have been employed with the Company since 
the effective date of the Act, and that you have had 
Negro employees with the Company extending back 
fifteen and twenty years, and they’ve always been



101a

in the category of Laborer, and that this is what 
we’re trying to bring out and develop—this line.

The Court: Well, I will have to disagree with 
you with much respect, Mr. Belton, for your con­
tention about it. I just simply cannot see how 
what transpired back of this time will help me de­
cide whether after July 2nd, 1965, this Defendant 
discriminated or not. This suit was brought in 
October, of ’66, some more than a year after this 
Act went into effect. Now, what [1033 transpired 
back there until July of ’65, is certainly, you know, 
important and pertinent, and if I start back of 
the effective date of the Act, there is no guide line 
as to how far you would go back. It just seems 
to me that it is like any other action,—that what 
happened on a different and separate time from 
the time that liability is talked about or responsi­
bility is talked about—and I could be wrong about 
it—I want the record to show the exception of 
Counsel for the Plaintiffs, so that they can be 
protected in the event that I am in error, but this 
isn’t a suit that started three days after the Act 
went into effect. This is a suit that started more 
than a year after the Act was effective. All right, 
you may proceed.

By Mr. Belton:
Q. Mr. Tines, do you have Answer #30 to the Inter­

rogatories, which consists of the seniority list for the year 
1966—1965, and 1967? A. Yes, I do.

Q. I think you testified that you have present qualifica­
tions for a High School education or an equivalency or 
successful—if you don’t have the High School education or

A. C. Tides—for Defendant—Cross



102a

the equivalency, the successful passing of the Wonderlic 
and the Mechanical Exam? Is that correct! A. For what 
purpose!

Q. To be promoted from either Coal Handling or the 
£104] Laborer’s category to other jobs—to other jobs in 
Dan River! A. He has to be promoted from Coal Han­
dling Operator into the Operating or Maintenance jobs in 
the Power Station, or to be promoted from a Laborer semi­
skilled into the Coal Handling Operations or the Watchman 
jobs.

Q. Referring to Answer #30 seniority lists for 1967, let 
me ask you if all of the employees listed under Control 
Operators, have a High School education or equivalency? 
A. I do not think they do,—no.

Q. Looking at the Answer, Mr. Thies, do you recognize 
the name of an employee in the Control Operator’s cate­
gory who has been frozen by virtue of his inability to move 
because he does not have the High School education equiv­
alency ? A. I don’t have to look at the names. We don’t 
freeze anybody in these classifications that have been in 
there for over ten years. When this policy was established, 
we didn’t go back and pull these people out of a block ten 
years ago, when this policy was established—ten years ago 
or over ten years ago—I don’t remember the exact date; 
we said, “All right, everybody that’s in here that can ‘cut 
the mustard’ can go ahead and be promoted within their 
department, but nobody else moves into these jobs at the 
bottom unless they meet this new policy qualification, and 
that’s the reason you all find all through this organization, 
and I told you about these two that don’t have a High 
School education in the Pump [105] Operator classification. 
That is an example of what I’m talking about; here is two 
men that just can’t progress, and they have voluntarily said,

A. G. Thies—for Defendant—Cross



103a

“We can’t progress.” Now, we have also had cases where 
a man would say, “I want to progress,” and he’d get up 
there and we would have to tell him he couldn’t do the job, 
but certainly you will find people all through our organiza­
tion that don’t have a High School education, because 
they’ve been in there for more than ten years—been in these 
departments for that long.

Q. Let me pose this question, Mr. Thies,—except for the 
Coal Handling—the Coal Handling Department and the 
Laborer’s Department, if you will put those aside, if you 
will and let me pose the question,—looking at the seniority 
list which you have before you, do you recognize the name 
of any employee in any other department, who does not 
have a High School education, but who has demonstrated 
the ability to be promoted?

The Court: Let’s wait a minute. Is that sup­
posedly attached to this batch of papers?

Mr. Belton: I ’m sorry, Your Honor. That is at­
tached to Answer #30,—yes, it is.

The Court: While we are at this, Mr. Ferguson,— 
you and Mr. Belton—I saw you looking for this, 
supposedly thinking it was attached to this. Is there 
a copy of this attached to that?

[106] Clerk Vaughn: Yes, there is.
The Court: All right.
The Witness: Mr. Belton, in answer to your ques­

tion, I am not familiar from sight with who in this 
organization does or does not have a High School 
education. I could get my list out and look at them, 
but I am perfectly willing to admit to you that there 
are people without a High School education, who are 
in the Operating jobs, for instance, at Dan River,

A. C. Thies—for Defendant—Cross



104a

who have done a satisfactory job. I’m not denying 
that at all. I can’t deny that because we certainly 
have them there who have done this job, who have 
been there for over ten years. I don’t think there is 
anything magic about a High School education, but 
it was just something we felt years ago we had to 
start to get the kind of people that we needed, be­
cause the correlary to that is that we have had rather 
poor experience with some wo did not have a High 
School education. It is a balance sort of thing.

By Mr. Belton:
Q. Let me ask this question. Since July 2nd, 1965, have 

you undertaken to determine the qualifications of Negroes 
in the Labor Department, who do not have a High School 
education, who do not have a High School equivalency, who 
have not taken either of the exams—have you undertaken 
to determine their ability for promotion out of [107] the 
Labor Department, independent of this criteria! A. We 
have not, as it would violate the policy that we have that 
a man must have a High School education to be considered 
for these higher jobs. We have not violated that policy. 
We took an interest in whether they could go on up or not 
to the extent that we talked with them and encouraged 
them to take these tests to find out. We encouraged them 
to go to school, and we would help pay for it. In fact, I 
even asked Mr. Knight to check in the community to find 
areas where they could get this training and to pass that 
information along to them to encourage them in any way 
we could to do this. We have not specifically given any 
sort of tests or made any sort of determination of what 
skills these individuals have who are not qualified under 
our present policy, to be considered.

A. C. Thies—for Defendant—Cross



105a

Q. Is it necessary for a person in the Laborer’s Depart­
ment who does not have a High School education or its 
equivalency to take—and he does not take advantage of the 
Company’s program—my question is, is it necessary for 
him to take both the Wonderlic and the Mechanical to be 
considered for a promotion into jobs in Coal Handling? 
A. Yes, that’s the policy we have set.

Q. I think you indicated, Mr. Thies, that you are begin­
ning to get complicated machinery into the Plant just re­
cently? [108] A. Well, over the whole Power System. See, 
I am looking over the whole System, too. The reason for 
this is the jobs even in Coal Handling, a man has to know 
how to operate diesel electric locomotives, to operate bull 
dozers and heavy machinery, and crushers and conveyor 
belts, and travelling trippers. It is a rather complex situa­
tion, even in Coal Handling, that he has got to be able to 
read, to understand orders, to read manuals, if you will, 
on how to do these things, to really be able to progress 
through Coal Handling satisfactorily. There is a need for 
more skilled people, that was felt over ten years ago. 
That’s why we put this policy into effect.

Q. Realizing this need, Mr. Thies, how do you go about 
training your personnel for the various jobs in the Coal 
Handling Department, if you will? A. The principal 
means of doing this is while he is a Learner and also, 
after he has been promoted, he is given an opportunity 
to work in the various jobs in the Coal Handling under 
close supervision. To begin with, it is all explained to him. 
Generally, it would be categorized as “On The Job Train­
ing.”

Q. Is this to say that you have a formalized training 
program? A. We have a training program, but it is not 
written out, as such.

A. C. TMes—for Defendant—Cross



108a

[109] Q. I think you testified, Mr. Thies, that you do have 
several Negro foremen, who are working—who are doing 
work, not in the Department of Coal Handling, but who are 
doing work in the Coal Handling Department! Is that 
right? A. Not Negro foremen,

Q. Negro employees? A. Negro semi-skilled Laborers.
Q. All right. A. There are some semi-skilled Laborers 

who are normally assigned to clean up in Coal Handling, 
yes.

Q. Now, in the normal course of their work, would you 
know whether they would have an opportunity to observe 
the various jobs that have been performed by a person in 
Coal Handling? A. They would—they would of course be 
working around the Operators. They would be able to see 
what the Operator was doing. I think they would be able 
to observe what he was doing. Now, whether they know 
when he does it or why he does it, I don’t know, but they 
could at least see his physical motions, yes.

Q. The opportunity would be extended for observation! 
Is that, correct? A. Well, they are working around in 
Coal Handling, so to whatever extent they saw an Operator 
doing something, then, they would observe it, but there is 
no formal program [1103 of the Laborers following an 
Operator around or anything of that kind.

Q. Now, let me ask you this. Would there be an oppor­
tunity for Laborers who are working with employees in the 
Maintenance Department to observe the jobs performed by 
personnel in that department? A. They don’t normally 
work with Maintenance crews.

Q. Would they ever have the occasion to assist Mainte­
nance Personnel? A. Well, tothe extent that I described 
this morning where you might be working on a turbine and 
you would need somebody to take a wire brush and brush

A. C. Thies—for Defendant—Cross



107a

some threads out of the bolts or something of this kind, if 
you want to call that working with Maintenance people. 
They are on the same particular maintenance job, doing 
Laborer’s work, but they don’t work with the maintenance 
people, as such, no.

Q. Now, let me call your attention, back again, I should 
say, to Interrogatory #34, which lists—34A and B—which 
lists the overtime work by each employee since July 2nd, 
1965! A. Yes, sir.

Q. I think you testified that you made an analysis of the 
percentage of overtime performed by persons in different 
departments! Is that correct? A. Yes, sir.

[1111 Q. Did you make—in your analysis, did you make 
a determination of a total average of overtime work by 
white employees, as contrasted to the average—total aver­
age of overtime work by Negro employees? A. No, we did 
not, because we don’t consider there’s any difference. We 
don’t make any distinction between our white and Negro em­
ployees. For instance, in the Coal Handling, we have got a 
Negro employee who is a Helper. He’s a part of the Coal 
Handling Operation. We see no reason to pull him out of 
the Coal Handling Operation. He’s a full part of it.

Q. So on the computation, of the overtime percentages, 
you included those Negro employees in Coal Handling in 
that computation? A. Let’s not misunderstand. The only 
Negro employee in the Coal Handling Operating Depart­
ment is the one who is classified as a Helper. The other— 
the other semi-skilled Laborers, who are in the general area 
of the Coal Handling Operation are in the general Labor 
force of the Plant, and they just clean up over there and oc­
casionally drive a spike in the railroad or put some flash in 
bags or something of this kind, but they are not part of

A. C. Thies—for Defendant—Cross



108a

the Coal Handling, if you will. They are not a part of the 
Coal Handling Department as such.

Q. Thank you. [112] A. You see what I mean! 0. K.
Q. Did you finish your answer, because I was trying to 

clarify a point that I was a little confused on! A. Maybe 
I misunderstood you.

Q. Let me rephrase it, if you will, so we can understand 
each other. My question is that you did make an analysis 
of how much overtime was worked by employees in a cer­
tain department? Is that correct! A. Right.

Q. Now, my question is, realizing that you have some 
semi-skilled Laborers who work—when I say, in the Coal 
Department, I don’t mean that they are employed in Coal. 
Of course, they do work in the physical location! Is that 
correct? A. (No answer.)

Q. Did you compute the overtime that they worked, into 
the percentage worked by employees in Coal Handling? 
A. No, we did not. They’re in the Labor Group.

Q. Mr. Thies, do you know whether the Company has 
conducted validation studies for the Wonderlic Exam? A. 
For what purpose?

Q. For validation purposes? A. Validation of—for 
what?

Q. Let me pose this question. Do you know what valida­
tion is? [113] A. Yes, I do.

Q. Would you explain to us in the Court what validation 
means ? A. Validation means, whether the tests as being 
applied yield valid results that it is designed to achieve. 
Now, I am asking you. I don’t understand your question. 
You say, have they been validated, and I say, “Validated for 
what?” Employment, promotion, or what? I don’t know 
what you mean.

Q. Let me say, have they been validated for promotion

A. C. TMes—for Defendant—Cross



109a

purposes at Dan River? A. Tests are not required for 
promotion at Dan River.

Q. I’m not saying that they are required. I’m asking— 
you do have tests that you use at Dan River for promotion 
purposes? A. No. Not required for promotion purposes.

Q. I ’m not saying that they are required. Let me see if 
I can get it this way, so maybe I can stop talking in circles. 
You indicated that if a person didn’t have a High School 
education or equivalency, in order—and does not take ad­
vantage of the Company’s Refund Tuition Program, that 
he could take both the Revised Beta.and the Wonderlic? Is 
that correct? A. Yes, sir.

Q. Now, the purpose for which you give the Revised 
[114] Beta and the Wonderlic, is to determine his promot- 
ability? These are the factors— A. That’s the Mechanical 
AA, I believe, isn’t it?

Q. The Mechanical AA? A. And the Wonderlic.
Q, Yes. A. The purpose for this is that I have just 

said: All right, if you make the same score that anybody 
coming in the front door that asked for a job, makes, I will, 
so call, waive the High School education requirement, be­
cause this satisfies me, that you can do the job, that you 
have got enough basic intelligence level to do the job, and 
mechanical aptitude to do the job.

Q. My question now is, have the Wonderlic and Mechani­
cal AA been validated for that purpose? A. There has 
been no attempt to make any validation of the use of these 
tests for this purpose. I t’s a good—in my opinion, it’s a 
good bit lower requirement than a High School education, 
and I felt we were bending over backwards to accept this 
in lieu of the High School education, and no one has passed 
it, and there’s been no opportunity to be any validation 
made of it because nobody has ever passed it and been pro­

A. C. Thies■—for Defendant—Cross



110a

moted into a job. I wish they had. I would be interested 
in this, but I don’t think it’s really pertinent, but maybe you 
do. I made no attempt to make any [115] validation be­
cause we haven’t had anybody that’s passed it and gone 
into a higher classification.

The Court: I believe you said you only had had 
three?

The Witness: Yes, sir.
« • • *  •

[120b3 * * *
Mr. Ferguson: The posture of this is now that 

the Plaintiffs’ evidence, except its expert evidence, 
is in the record. The testimony of the expert is not. 
You realize as you indicated, that Mr. Thies testi­
fied out of turn?

The Court: Right.
Mr. Ferguson: Also, during the introduction of 

the Plaintiffs’ Exhibits, His Honor allowed me to 
reserve the right to specifically object to answers 
to Interrogatories and depositions of the named 
Plaintiffs, as well as employees of the Defendant, 
Duke Power Company, and to put on evidence in 
connection therewith if I deem it necessary to am­
plify or explain away [121] inferences that might 
be drawn from that testimony. At this time, there­
fore, with respect to Exhibit 11, which is the Answer 
—the Answers to Interrogatories, and Exhibits 14 
trohugh 32, which are the depositions of the named 
Plaintiffs, as well as the depositions of the Com­
pany employees, the Defendant objects to all ques­
tions posed by the Plaintiffs and moves to strike 
all answers in response thereto, as they relate to

A. C. Thies—for Defendant—Cross



111a

Colloquy

any Pre-Statute activity, that is prior to July the 
2nd, 1965, on the ground that it is irrelevant and 
immaterial, and the Act is prospective and not retro­
active in application.

I believe, His Honor, with respect to Exhibit 12, 
which was the Revised Beta Examination, placed 
the burden on Counsel for the Defendant, to move 
to expunge from the record, Exhibit 12, which is 
the Revised Beta Examination. At this time, in 
view of the fact that there’s an expert in the field 
of testing who is coming on to be heard, I don’t 
wish to make that motion, because it may or may 
not be prejudicial to the Plaintiffs, and I am not 
asking His Honor to rule on that at this time.

Further, the Plaintiffs have failed to show that 
any Negro has sought and been denied employment 
at the Dan River Steam Station, solely because of 
his race or [122] color, and accordingly, the class 
represented by the Plaintiffs are those Negroes who 
are employed at the Dan River Steam Station as 
well as those who may subsequently be employed 
and not those who are seeking employment, because 
there is absolutely no representative of that class. 
They haven’t shown that anybody had sought and 
been denied employment solely because of race or 
color. Now, based on this, we further object to all 
questions in Exhibit 11 and Exhibits 14 through 32 
as they relate to hiring, recruiting, interviewing, 
and in other words, anything other than promotion, 
though we contend this is a promotion case and not 
a hiring case. The employment practices drawn 
into this controversy are promotion practices and 
not hiring practices, and we move to strike all an-



112a

Colloquy

swers in response to questions that attempt to elicit 
that sort of information.

The Court: All right, now let me catch up with 
my ruling.

Mr. Ferguson: All right, sir.
The Court: Now, on that, I overrule your objec­

tion, and deny your motion to strike. Now, on your 
objection and motion to strike, relative to Exhibits 
11 and Exhibits 14 through 32, I understand that 
objection to be, that as to those depositions 11233 
and the Answer to Interrogatories that really you 
are saying to the Court that the Court should only 
consider them as they relate to happenings since 
the effective date of the Act, and in that, I have 
previously ruled that it is my opinion that you are 
correct in that, and therefore, I will sustain your 
objection as to the consideration of those exhibits 
as they effect the period prior to the effective date 
of the Act, and allow the motion to strike. Now, 
you say on Exhibit 12, you are not making any 
motion at this time?

Mr. Ferguson: Not at this time, no, sir.
The Court: All right, do you have anything fur­

ther!
Mr. Ferguson: Nothing except to advise the Court 

that at this time we don’t intend to call any wit­
ness other than our expert witness. We don’t in­
tend to amplify or explain away any of the depo­
sitions or Answers to Interrogatories, and we are 
hopeful that we can conclude this matter today.

The Court: All right, Mr. Belton.
Mr. Belton: Your Honor, I don’t want to go back 

and re-argue the point concerning evidence pertain-



113a

ing to Pre-Statutory activity. I think in context of 
the ruling at the time, a witness for the Defendant 
was on the stand, and I am wondering, in light of 
the £124] preservation of Plaintiffs’ exception with 
respect to the Judge’s ruling, the testimony would 
extend to the ruling with respect to the depositions 
as just raised by Counsel for the Defendant, in terms 
of the Pre-Statutory activity!

The Court: I don’t quite understand you, Mr. 
Belton. Of course, once you’re protected on the rec­
ord,—and I wanted to show, as I think we had be­
fore, that you object to that ruling, of the Court, 
and I note your exception now. Does that take care 
of that!

Mr. Belton: That’s right.
The Court: All right. Now, Mr. Belton, you had 

brought up the question as to whether you could 
put in this evidence, so that if the Court is in error, 
it would be before the Court. Now, it is of course 
abundantly clear in the Interrogatories and in the 
depositions,—the evidence that you say that I should 
consider. Now, that would be before the Court on 
an Appeal. I am not ruling—if you want to put on 
some evidence about what happened before, I am 
not ruling you out. I say, I am not going to con­
sider it in making up my decision, and the reason 
is—the effective date of this is July, ’65; isn’t that 
right!

Mr. Belton: That is correct, Your Honor.
[125] The Court: All right, the suit was brought 

in October of ’66. Now, I can see if it was something 
that transpired in August of ’65, that what went on 
before July of ’65, could very well be pertinent, but

Colloquy



114a

to hear over a year,—there’s about sixteen months, 
you know, between the time this suit was filed and 
when this Act went into effect, and it just seems to 
me, improper that we go back beyond the date that 
this complaint really points to-—that there would be 
ample time in sixteen months. I mean, whatever 
violations that transpired, that period would be suf­
ficiently pointed out. Now, you go ahead, in the light 
of that ruling, why, you can fix the record as you 
see fit.

Mr. Belton: Thank you. Just one other point on 
this, Your Honor. I do recall at the time Mr. Thies 
was testifying, I called to the attention of the Court, 
a question which was propounded to Mr. Thies, dur­
ing the deposition, concerning whether or not the 
Defendant had engaged in a practice of limiting the 
employment opportunities of Negroes prior to the 
effective date of the Act, and I think if I recall cor­
rectly, that an objection was interposed at the time, 
and the Court sustained the objection. Now, this is 
one question that we’ve been trying to get at, both 
in depositions and we had sought to get it through 
the testimony of [126] Mr. Thies, but we haven’t 
thus far, from addressing ourselves to that particu­
lar question.

Mr. Ferguson: Plaintiffs’ word opposed, Your 
Honor. He had a perfect right to ask them that. 
Aren’t they competent to testify about the circum­
stances and conditions under which they were em­
ployed? It seems to me they are.

The Court: Did you take Mr. Thies’ deposition?
Mr. Belton: We did take his deposition, Your 

Honor, and that precise question I raised, was ad-

Colloquy



115a

dressed to Mr. Thies, and Counsel for the Defendant 
instructed the witness not to answer the question.

Mr. Ferguson: That is the reason, Your Honor, 
for my objection. It is so hard in taking depositions 
and answering Interrogatories to predicate every 
question on-—prior to July 2nd, 1965, and you’re go­
ing to find when you get into reading these things 
that it is just all mixed up. It is just senseless, I 
believe, to object every time to every Interrogatory 
when you have a stipulation, with respect to the dep­
ositions, rather, that every question is deemed ob­
jected to, and every motion or every answer is 
deemed to be susceptible to a motion to strike. It 
just seems senseless to do that every time, and that 
is the exact reason for my motion that the Court 
strike all answers with respect to hiring [127] and 
hiring practices. This is a promotion case. They 
don’t have any representative. The answer to Inter­
rogatory 14 clearly shows that there were no job 
openings, and this is our evidence. There was no job 
opening at the Dan River Steam Station since July 
the 2nd, 1965.

Mr. Ferguson: And they have not shown—
The Court: Is Mr. Thies here!
Mr. Ferguson: No, sir.
Mr. Belton: Your Honor, if I might just be heard 

on this question,—now, Counsel for the Defendant 
has raised a question in light of Judge Stanley’s rul­
ing as to the class action. Now, we are aware of that 
ruling, but our position is this as to the evidence, 
that evidence as to employment practices is relevant 
to the promotion practices, assuming that we are 
limited to this issue in the case. Now, bringing in

Colloquy



116a

evidence as to the employment does not subvert in 
any way the ruling of Judge Stanley as to the desig­
nation of the class, and we are bringing this evidence 
in—well, our position is that the class should include 
it—well, apart from that issue, our position is, evi­
dence related to the employment practices of the 
Company, inasmuch as we allege the policy and prac­
tice of discrimination would have some bearing inde­
pendent of [1283 the question of employment on the 
promotion practice of the Company, and I thought—

The Court: All right. Put your evidence on, and 
you all object to it and I’ll rule on it.

Mr. Belton: Your Honor, in order to try to pro­
ceed with the matter, pursuant to the Court’s Mem­
orandum of Tuesday, when the Court was advised 
of the unavailability of the named expert witness 
that we did have, the Court, I think, indicated that 
the case would be continued to 9 :30 this morning, 
and at this time, we could call here, the name of the 
person we indicated to the Court or in lieu thereof, 
a person to complete our case, and at this time, in 
conformance with the Court’s ruling, we’d like to 
call Dr. Richard Barrett. Dr. Barrett is being used 
in place of our witness that could not be here this 
morning.

The Court: You all object to that!
Mr. Ferguson: Yes, we object to it. I  just want 

the record to show, Your Honor, that we were ad­
vised of the change in the expert witness on Wed­
nesday of this week. This morning, I am advised 
that Mr. Belton intends to put on a 100-page study or 
to offer into evidence, a 100-page study made by Dr. 
Barrett, as principal investigator for NYU, and I ’m

Colloquy



117a

not saying at this time that we can’t proceed with 
the matter, but [1293 I do want the Court to be 
aware that depending on what he says,—we will just 
have to see what he says before we can proceed with 
this case,—even the cross examination of it.

The Court: I recognize that this is entirely con­
trary to our rules, and that you are entitled to have 
the name of the witness and generally what he is go­
ing to say, unless there is surprise, and the rules 
say that where a witness cannot attend and there’s 
some change, that you will be apprised of that imme­
diately. Even so, let the witness be sworn, and I’ll 
allow him to testify.

Colloquy

Whereupon, Richard S. B arrett was duly sworn, and 
testified as follows:

Direct Examination:
The Court: Before Mr. Barrett starts testifying, 

I want to state this is my view of what you say with 
reference to my ruling, on your question of Mr. 
Thies. Now, I have stated that I do not think what 
happened prior to July, ’65, is competent. Therefore, 
any decision that I make will be done, absent of 
whatever might be in the record on that. Therefore, 
if the situation should be—the decision should result, 
and there should be an appeal, and my decision 
should be [130] adverse to you and the Circuit Court 
says I am wrong about that, they would have to 
send it back to be considered, you know, at that time, 
why, I take it that the case could be opened for what­
ever testimony that you desire to put on in that re-



118a

Colloquy

sped, to make the record reflect whatever evidence 
you had, including that of Mr, Thies or other that 
you wish, because I would then in the event that it 
should develop, why, as I said, it would have to be 
sent back for consideration of that evidence. There­
fore, I  don’t see how the failure to let him answer 
that and put it in the record, would be prejudicial.

Mr. Chambers: Your Honor f
The Court: Yes.
Mr. Chambers: Your Honor, would that then,— 

would the Court’s ruling—would that satisfy the 
Plaintiffs’ responsibility to proffer the evidence to 
show what the witness would have said, because there 
are, as I  recall, in the depositions, several other 
questions of witnesses who are instructed by Counsel 
for the Defendant, not to answer that specific ques­
tion or questions, related to pre-Act activities, in 
view of the Court’s ruling now, that if this matter 
is appealed, and the Court decides that these are 
proper inquiries, we could then put that on, and 
that would [1313 satisfy our obligation,—now, to 
show what the testimony would have been, so if it 
comes back, we could put this evidence on, if the 
Court decides that this is a matter that should have 
been inquired into.

The Court: Let me think about that. Go ahead 
with this witness. I don’t take it. I realize that it’s 
what the witness would say in a case that is objected 
to,—not the question itself and that in most in­
stances, it would be to put the answer in so that it 
could be considered. Whether that is the situation 
here or not—let’s go ahead with this witness.



119a

Colloquy

Mr. Ferguson: Your Honor, let me just make one 
comment,—then I will sit down. It seems to me like 
that at this late date, they’re asking to put on this 
evidence, and this matter is coming down to be heard 
on the merits. Now aren’t they under some obliga­
tion to move the Court to make some sort of motion 
to compel answers to those Interrogatories before 
we got here? They put it into evidence with the full 
knowledge that they had been directed not to answer 
these questions. That’s their case—the results of 
their discovery procedure.

The Court: I’m not proposing to open up all those 
Interrogatories and let them develop that question. 
That’s not what’s concerning me now-—is the question 
[132] they asked Mr. Thies.

Mr. Ferguson: Which is the same question which 
is in the Interrogatory, so he said.

The Court: But nevertheless, he was on the stand.
Mr. Ferguson: Yes, sir.
The Court: And that question was asked, and you 

objected to it, and I ruled on it.
Mr. Ferguson: Yes, sir.
The Court: Is Mr. Thies available?
Mr. Ferguson: No, s ir; I could get him here, may­

be late this afternoon, but I can’t promise it. I don’t 
know what his schedule is, frankly, Your Honor. 
That’s one reason we want to get him on, Tuesday, 
to let him complete some other commitments he had 
today. We will undertake to try, Your Honor, if you 
want to put him on.

The Court: How about sending someone out there, 
and let’s get this record in shape. You don’t want 
to string them out indefinitely, and if the matter goes



120a

up, and tlie Circuit Court, you know, has a different 
view of it,—then we’re back down here at the same 
old stand. New, let me say with you gentlemen, let’s 
get this thing to a conclusion. You just want to ask 
Mr. Thies that question, and you want that to go 
into the record. I wouldn’t open it up now for a full- 
scale [133] examination of Mr. Thies. You want to 
ask him the question about the policies before the 
effective date of the Act. Is that it?

Mr. Belton: That is it, Your Honor. I would not 
think that we would want to develop more than fif­
teen minutes along this line; that is, just posing the 
question itself, would open the inquiry not entirely, 
but at least to give the Court some feel for the posi­
tion that we think—

The Court: See if you can’t get Mr. Thies here. 
All right. Let’s go. Wait just a minute.

Mr. Ferguson: Your Honor, he can go ahead. I 
can listen with one ear.

The Court: All right.

By Mr. Belton:

Q. Would you state your name, please? A. Richard S. 
Barrett.

Q. Would you state your present occupation? A. I am 
a Consultant with Case and Company, New York City.

Q. And would you describe for the Court what Case and 
Company does? A. Case and Company is a firm of Man­
agement Consultants in the fields of Psychology, Sociology, 
Engineering, Management, Finances, and so forth.

Q. Now, would you state, Dr. Barrett, your educational 
[134] background? A. I received a Bachelor of Science 
in Administrative Engineering at Cornell University, 1948;

Richard S. Barrett—for Plaintiff—Direct



121a

a Master of Arts in Education from Syracuse University 
in 1951; a Dr. of Philosophy in Industrial Psychology from 
Western Reserve University in 1956.

Q. Would you describe for us—you said you did have a 
Ph.D. Is that correct? A. Right.

Q. Dr. Barrett, would you describe for us your work 
history? A. I started out in 1948 as an Industrial Engi­
neer, for about a nine-month period and then decided to go 
back into the field of Psychology. I worked from 1951 to 
1953 as a Professional Associate in Richardson, Bellows, 
Henry and Company, a firm of Psychological Consultants. 
I did some work as a graduate student from 1955 to 1958. 
I was the Vice-President of the Personnel Research and 
Development Corporation, a Psychological Consulting firm 
in Cleveland, Ohio, and my work included research con­
tracts on selection with the Federal Government,—also on 
performance rating; from 1958 to 1965,1 was Assistant and 
then Associate Professor of Management, Engineering and 
Psychology at New York University. During that time, I 
conducted some research in the area of Industrial Psychol­
ogy, and I consulted on [135] selection problems with some 
Corporations in the New York City area, and in 1965, I 
moved to become Director of Materials Evaluation of Sci­
ence Research Associates in Chicago. However, I retained 
a position with New York University as Research Associate 
Professor of Psychology, to be principle investigator of a 
study for the Ford Foundation, entitled “Differential Selec­
tion Among Applicants From Different Socioeconomic or 
Ethnic Backgrounds.” That’s it.

Q. Let me establish for the record, what is your profes­
sion? A. I am an Industrial Psychologist.

Q. And would you briefly describe for the Court what 
is involved in the profession of Industrial Psychology? A.

Richard S. Barrett—for Plaintiff—Direct



122a

Industrial Psychology includes the aspects of human per­
formance in business, industry, government, military ser­
vices—the area that I specialize in has to do with the study 
of larger numbers of people, developing for example, Selec­
tion Programs, Rating Programs, Attitude Surveys, and 
other instruments that are designed to elicit information 
about the functioning of people in general. In addition, I 
have taken part in work where I am concerned with the 
individual,—perhaps interviewing one person or two per­
sons and writing a report about their qualifications for a 
specific job or working with an individual who needs some 
counselling or training in order to improve his performance 
on [136] the job.

Q. Do you belong to any Professional Societies? A. I 
am a member of the American Psychological Association. 
I have been a member of a number of Regional Groups of 
Colonial Eastern Psychological Association, Midwestern 
Psychological Association, New York State Sociological 
Association of which I was member of the Board of Direc­
tors. I  was also President of a local Psychological Associa­
tion in New York City.

Q. Have you had the occasion to publish any works? A. 
Yes. I have—one of them of course, being a report of the 
study on “Differential Selection Among Applicants Prom 
Different Socioeconomic or Ethnic Backgrounds.” I  pub­
lished an article in the Harvard Business Review on the 
election of minority groups. Prior to that, I had an article 
in the Harvard Business Review on testing in general, and 
a number of research publications in Industrial Psychology 
in general.

Q. Now, you listed one publication, I think, as the “Dif­
ferential Selection Among Applicants From Different Soci­
oeconomic or Ethnic Backgrounds”? A. Yes.

Richard 8. Barrett—for Plaintiff—Direct



123a

Q. Would you list just several others? A. Well, let’s 
see,—“Exploration in Job Satisfaction and Performance 
Eating,” “Performance Suitability in [1373 Role Agree­
ment,” (r-o-l-e) as a theatrical role, “Job Satisfaction,” 
“Job Performance,” and “Situational Characteristics,” 
“Comparison Programs and Conventional Instruction 
Methods,” and so on.

Q. In your profession as an Industrial Psychologist, Dr. 
Barrett, have you had the occasion to consider the Won- 
derlic Examination? A. Yes, I have.

Q. Have you had the occasion to consider the Mechanical 
“A” Examination? A. Yes.

Q. Have you had the occasion to consider the Revised 
Beta? A. Yes, to a lesser extent.

Q. Now, when I say “Consider,” would this be—would 
this fall within your area of specialization? A. Yes.

Mr. Belton: Your Honor, I offer Dr. Barrett as 
an expert witness on Tests and Measurements.

The Court: On what?
Mr. Belton: On Tests and Measurements.
The Court: Now, would you tell me what that is? 

He says he is an Industrial Psychologist. I ’ve got to 
qualify him as an expert or I understand that I 
should, by Tests and Measurements, now—

[1383 Mr. Belton: Might I address the question 
to Dr. Barrett, so that he can explain it to the Court, 
because it is technical ?

Dr. Barrett, Avould you explain that to the Court?
The Witness: I think it’s most appropriate to say 

that in this context, that I desire to be qualified as 
an expert in the use of Tests and other Selection 
Procedures for Employment or for Promotion and 
Upgrading.

Richard 8. Barrett—for Plaintiff—Direct



124a

Mr, Ferguson: I wonder if I  could get that re­
peated?

The Witness: As an expert in the use of Tests and 
other Selection Procedures for Selection and Promo­
tion in Employment.

The Court: I am proposing—■
Mr. Ferguson: I ’d like to take him on Voir Dire 

for just a couple of questions, if I  may!
The Court: I think you have a right to question 

him before I  make any entry.
Voir Dire

Richard 8. Barrett—for Plaintiff—Cross

By Mr. Ferguson:

Q. Mr. Barrett, I  understood from your examination so 
far, that you are Consultant with Case and Company in 
New York? A. That’s right.

Q. I noticed that when you mentioned the areas in which 
that firm consult, there was no mention of testing? [139] 
Is that true? A. Well, when I talked about the hetero­
sciences in general, testing was included. I didn’t mention 
it specifically, but that’s one thing.

Q. All right, sir. Have you ever been employed in indus­
try? A. As an employee,—not in Industrial Psychology, 
no.

Q. You’ve been an Industrial Engineer, but you’ve never 
been employed in industry as an Industrial Psychologist, 
—is that correct? A. That’s right, except as a Consultant.

Q. Do you characterize yourself as an Educational Psy­
chologist? A. I have, in the last two years, worked in the 
field of Education. My primary experience has been in 
Industrial Psychology.

Q. But you have never been employed as an Industrial 
Psychologist in industry? A. No, the work of Science asso-



125a

dates—there’s a little bit of work to do with Industrial 
Psychology, but not enough to, I think, be qualified.

Q. I believe you mentioned that you have considered the 
Wonderlic and the Bennett Mechanical “AA” Test, and you 
mentioned further that that falls within your area of study! 
A. Yes.

[140] Q. What do you mean by that! A. I mean that 
the—I mean that these are tests that rather routinely come 
up in studying jobs. In my doctoral dissertation, for ex­
ample, the Wonderlic Test had been used as one of the 
tests on which reports were based regarding selection, 
and in looking at any kind of selection procedure, you 
look at a number of instruments and decide which one is 
most appropriate. On occasion, I would look at the Won­
derlic or at the Bennett “AA.”

Mr. Ferguson: No further questions, Your Honor.
The Court: All right, let the record show that 

the Court finds this witness an expert in the use of 
Tests and other Selection Procedures for selection 
in Promotion in Employment, and that the Defen­
dant objects and accepts to this ruling by the Court. 
All right.

Re-Direct Examination by Mr. Belton:

Q. Dr. Barrett, have you had the occasion to assist in 
determining in the selection of personnel for jobs! A. 
Yes, I have.

Q. Would you describe to the Court, Dr. Barrett, what 
you consider those criteria—you would consider in making 
a determination as to the selection process ? A. The 
earliest step and one that continues throughout such a 
study, is to find out what the job requires. [141] It is

Richard 8. Barrett—for Plaintiff—Redirect



126a

typically done by interviewing incumbents on the job,— 
supervisors of incumbents on the job, or someone who for 
some reason may be expert in what the jobs require. It 
is determined what is done. Simultaneously, it is also de­
termined what sorts of skills are required,—whether the 
job requires a given level of command of English, manual 
dexterity, numerical calculation, judgment, ability to lead 
people or whatever it may be. Once it’s understood what 
the job requires, the next step is to look around among 
the existing selection procedures to find whatever ones 
are available that might be used to determine whether 
someone has these requirements or not, and on occasion, 
to develop procedures for this purpose, if none that are 
satisfactory exist. Once you are satisfied that you have 
procedures which fit the situation, as well as they can, 
from your basis of the knowledge of the situation and the 
knowledge of the instruments, the next step in the pro­
cedure, is to try them out, and the trial may take several 
steps. The first step and the simplest one, is simply to 
administer the test to a number of people who are like 
the ones that are going to be selected or promoted. The 
purpose of doing this is to find out how hard the test is 
for this particular group. The reason for doing that, is 
that it has been shown over and over again, that even 
though a job may look the same, the kinds of applicants 
who appear will depend upon the recruiting [142] pro­
cedures, the labor pool at that time, geopraphical location, 
the level of education, and so forth. So, it’s possible to 
make an educated guess as to whether the tests will be 
hard or easy, or appropriate or inappropriate. It is al­
ways sound procedure to try it out and see. If, in fact, 
people can take the test satisfactorily, then the next pro­
cedure is to validate the test—that is, to try it out on

Richard S. Barrett—for Plaintiff■—Redirect



127a

people who are applicants or candidates for promotion, 
and to compare the test scores with their performance. 
Now, there are a number of ways of doing this, and I 
don’t want to go into too much detail. One procedure is 
to take people who are new on the job, give them the test, 
develop some measure of their performance and compare 
the two. Another procedure is to give the test to a num­
ber of applicants, to accept them on the precision—per­
haps not even using the test scores at this time in seeing 
how they work out on the job. There are a number of 
considerations in determining what is the standard per­
formance that these people have achieved. One is whether 
a person has performed satisfactorily on the job for which 
he was employed. Another, is whether he performed satis­
factorily over a period of time and progresses at a rate 
which is deemed satisfactory. Another possibility is simply 
to develop tests, the idea being to select those people who 
would stay on the job long enough so that the Company 
recoup its cost in putting them [143] on the job and train­
ing them, and so forth.

Q. Returning, if you will, to a consideration of job eval­
uation, would it be necessary to seek professional assist­
ance in determining the job analysis! A. I think it is 
harder to find,—what professional assistance do you mean, 
—Industrial Psychologist as such, or some kind of pro­
fessional person!

Q. Let me re-phrase the question. In trying to define 
the job description, what steps might be taken, if you 
would, in making this determination! A. Well, primarily, 
the best way to do it,- are to 1. Get information directly, 
by interviewing people who are on the job, and to further 
interview supervisors of these people on the job so that 
you can arrive at some agreement between the supervisors

Richard S. Barrett—for Plaintiff—Redirect



128a

and the incumbents as to what the job consists of. It is 
often important, if you have an important job, to inter­
view everybody on the job, and everybody who supervises 
the job. In some cases, if there are a lot of people on a 
very similar job, it is appropriate to interview a sample 
of each. 2. Another technique is to observe the individuals 
on the job, and observation really doesn’t mean too much 
unless the person already has some idea of what the job 
consists of, because you really don’t know very often, when 
a person does something with his hands or makes some 
decision, how complicated it is without knowing [144] the 
background. So that is useful, but not as useful as the 
interviewing. It is also feasible, in many cases, to talk to 
someone that already knows the jobs intimately. For ex­
ample, in my case, I have learned about jobs by talking 
to other Industrial Psychologists and employment people 
who have been working with these jobs and with these 
people for a long time, and this way, just getting infor­
mation which is required, on the job.

Q. Would it be necessary in determining the job de­
scriptions to reduce the job analysis description to writing? 
A. I think it’s a good practice, and it makes a useful record. 
I don’t think it necessarily improves the quality of the 
work? It is not essential, no.

Q. Now, I think you spoke of a validation! A. Yes.
Q. I think at the time, you also attempted to define it 

for us! A. Yes.
Q. Would you in layman’s terms, Dr. Barrett-— A.

0. K.
Q. Try to give the Court some appreciation of the term 

—by what is meant by validation? A. All right. Valida­
tion—a test of others’ selection procedure is valid to the 
extent to which people who score high, perform well, and

Richard S. Barrett—for Plaintiff—Redirect



129a

people who score low, perform [145] poorly. The valida­
tion is typically expressed in terms of a validity coefficient, 
which is a correlation coefficient, which compares in a 
systematic and mathematically sensible way, the predic­
tor’s scores—the interviews, the test scores or whatever 
the particular may be, with the scores that have been 
derived on the performance of the individual through 
performance rating,—through his progression through job 
categories, through the kind of raises he’s gotten, and so 
forth; and there is a number of complexities—I don’t 
know how far you want me to go into this—one of them 
is that you have to decide early in the game what it is 
you want to predict and why. For example, on a job that 
requires very little training, it may be desirable to get 
people who are going to do well on the job fairly fast. 
You don’t care how long they stay. Another circumstance 
of the training is that it is expensive, and errors made in 
the training process are expensive. Maybe the appropriate 
criterion that you are trying to predict is how long a per­
son stays on the job, and in many situations where a Com­
pany looks towards career employees, it is appropriate 
to use as a standard, how well they have progressed, and 
this requires considerable thought, because very likely, the 
test that predicts one will not predict the other.

Q. Let me show you, Dr. Barrett, Plaintiffs’ Exhibit #11, 
which is the answers to Interrogatories. [146] A. 0. K.

Q. I direct your attention to Question #22,—or answer 
to Question #22. A. O. K.

Q. For the record, Dr. Barrett, would you read what that 
record is, and for the -benefit of the Court! A. You want 
the whole question?

Q. The answer. A. “In the Company’s Steam Produc­
tion Department, an employee must have a High School

Richard S. Barrett—for Plaintiff—Redirect



130a

education or a certificate of completion of general educa­
tion development, (GED) test, High School level, to be 
eligible for consideration for promotion from Watchman 
in Coal Handling Operator Classifications to other depart­
ments within the Station, and from the Laborer Classifi­
cation to other departments within the Station. This re­
quirement has been in existence for at least the past ten 
years. In order to give its employees in Coal Handling, 
Watchman, and Laborer Classifications without High 
School educations an opportunity to be considered for 
promotion to the higher-paying classifications, the Com­
pany provided that in lieu of the High School education, 
any person on its pay roll prior to September 1, 1965, 
who could pass the regular employment test, would be 
considered as having met the High School education re­
quirement. This testing policy was designed to include, 
rather than exclude, [147] those employees without a High 
School education, who were employed prior to September, 
1965, for consideration for promotion. In addition, em­
ployees without a High School education who did not 
desire to qualify for consideration for promotion through 
the testing procedure, were advised that they could take 
advantage of the Company’s Tuition Refund Program in 
order to obtain a High School education. Thus, employees 
in the Coal Handling, Labor, or Watchman Classifications 
have three standardized non-discriminatory alternatives by 
which they can qualify for consideration for promotion. 
Neither alternative automatically qualifies an employee for 
promotion. In view of the foregoing explanation, Defen­
dant is of the opinion that the tests are not per se a con­
dition for promotion.”—Do you want me to go on?

Q. No, we need not. Again, directing your attention to 
Plaintiffs’ Exhibit #11, and specifically the answer given

Richard S. Barrett—for Plaintiff—Redirect



131a

to Question #12, which is a relatively short answer, would 
you read that, Dr. Barrett! A. “12A: Job descriptions 
or summaries of duties required of each, were not previ­
ously reduced to writing', and are not in Company records, 
hut such descriptions are reduced to writing solely for 
the purpose of answering this Interrogatory, (see attach­
ments.”)—Shall I read B!

Q. No. A. 0. K.
[148] Q. Assuming, Dr. Barrett, that tests were used 

on August 1st or instituted on August 1st, 1965, and as­
suming further that no job descriptions were available 
prior to that time, would you have an opinion as to whether 
this procedure would comport with that aspect of job 
evaluation which you indicated was a step in determining 
what criterion one would use for personnel’s selection!

Mr. Ferguson: Objection.
The Court: Overruled.
The Witness: Provided that the information is 

not elsewhere available, I would say this is not 
good practice.

By Mr. Belton:
Q. Let me again refer you to Plaintiffs’ Exhibit #11, 

and specifically to Question #22, which includes a copy of 
the Wonderlic and the Mechanical “AA.” Do you have 
that? A. I don’t have the test here,—or do I?

Q. I will give you this copy then. A. 0. K.
Q. And at the same time, Dr. Barrett, referring you 

back again to Answer #22, given in the same Exhibit, in 
which is indicated that the cut-off score for the Wonderlic 
Examination as used at Duke Power, is 20, would you 
explain to the Court what that cut-off score means, and

Richard S. Barrett—for Plaintiff—Redirect



132a

to assist you, let me show you the Manuals, both for the 
Wonderlic and [149] the Mechanical “AA,” which have 
already been introduced into evidence. A. Well, the score 
by the “20” on the Wonderlic, is one that is typically 
achieved among High School graduates, according to one 
norm table, by—let’s see, now, where is it—and there are 
a number of norm tables. This is a problem.

Q. Isn’t that the answer to the question? A. Pardon? 
The answer is, of High School students’ four years of 
training, about 42.8 per cent, will achieve 20 correct an­
swers,—somewhat less than half. So, what else do you 
want ?

Q. Now, let me put this question—and again, referring 
to Answer #12, in which it is indicated that there is a 
cut-off score, under some circumstances, of 39, for mechani­
cal comprehension. Would you explain to the Court what 
that means? A. Well, a score of 39, according to the norm 
tables provided by the publisher, can be achieved by 65 
per cent of applicants. For Mechanic’s Helper, 55 per cent 
of the people who are applying for unskilled jobs; 45 per 
cent of the people who are candidates for lead-men jobs, 
and so forth,—it’s about that level of difficulty.

Q. About 55 per cent? A. Well, yes,—depending upon 
the norm groups— [150] around 55 or 60 per cent.

Q. Would you describe to the Court, Dr. Barrett, what 
procedure is used in the field of testing measurements to 
determine what a Company will select as a cut-off score 
in the administration of tests?

Mr. Ferguson Objection.
The Court: Overruled.
The Witness: The typical procedure involves, 1.

A study of the labor market, to have some general

Richard S. Barrett—for Plaintiff—Redirect



133a

feel for the kind of people that can be expected to 
apply. Also, to note that the labor market changes, 
and that what changes in the labor market cut-off 
scores may necessarily change. Then, on the basis 
of trying the test out, if this is possible, to establish 
a cut-off score which will pass a sufficiently large 
pool of people, so that they can select enough people 
to keep their operation functional, and it is a matter 
of judgment and level of job and so forth, whether 
they are going to, from a given labor pool, want 
to get 50 per cent, 60 per cent, 30 per cent, or what­
ever—past this particular phase of the employment, 
so they can be considered on other bases as to 
whether they would be accepted. Now, the essential 
part of it however, is that these must be evaluated 
in terms of actual experience, with the tests, be­
cause this judgment is an £151] educated guess and 
it might be quite accurate and it may be inaccurate, 
and it is important to try it out and see how people 
actually perform.

By Mr. Belton:
Q. Now with respect to validation, Dr. Barrett, would 

you have an opinion as to whether validation of a test is 
an essential part in determining whether to use that par­
ticular test or not? A. Validation is something that I have 
always maintained is something that should be done where 
possible, and the “where possible” is the qualification that 
makes it difficult. It is not possible to validate a test 
unless there are enough people on similar jobs so that 
you can get some stability in your results. One swallow 
does not make a summer. You cannot determine whether 
a test works or not because of a predicted success on one

Richard S. Barrett—for Plaintiff—Redirect



134a

or two people. There is no stated number that you have 
to have, but the more people you have, the more sure you 
are of your results, but if you don’t have enough people, 
you simply can’t do it.

Q. Assuming, Dr. Barrett, that an employer wanted to 
use the Wonderlic examination, in that that employer had 
less than 100 employees,—would you expect, or would you 
have an opinion as to whether a validation study should 
be conducted by that employer! A. I think I have to ask 
you to re-phrase the question because it really depends on 
how many people are on £152] jobs that are sufficiently 
similar, so that you can consider them as one group. It 
could be a manufacturer’s representative organization with 
nothing but salesmen working for it, doing the same thing, 
or you could conceivably have 50 different jobs, and no 
more than 3 or 4 people on any one, so what is essential 
is the number of people on a job.

Q. Let me again refer you, Dr. Barrett, to Plaintiffs’ 
Exhibit #11, Question #30—the answer to #30 which 
consists of the seniority at Duke Power for the years 1967, 
’66 and ’65. A. O. K.

Q. Referring simply to the seniority list for 1967, and 
looking at the category of Control Operators, assuming 
that you had no more than that number of employees which 
consists of twelve employees— A. Yeah.

Q. And you wanted to use a test instrument for what­
ever skills are involved, would you expect a validation 
study to be conducted with respect to that category! A. 
I would think in the ordinary circumstances, on close ex­
amination you would find out that it wasn’t going to be 
enough. For one thing, you are likely to have in this group, 
people of varying ages, and length of experience. The 
tests have different meanings for people of different ages,

Richard 8. Barrett—for Plaintiff—Redirect



135a

and that would be a very small number to use. What [153] 
you would probably find, on the basis of your study is 
that the tests don’t work, when in fact, they may work, 
and they would prove it if you’d use a lot more cases.

Q. Again, referring to that list, Dr. Barrett in the cate­
gory of the job description called, Coal Handling Opera­
tors,—assuming that you had no more than 10 employees 
in that category and you wanted to use a test instrument 
for the selection of employees for this category, would you 
expect a validation study to be conducted? A. Not count­
ing the Learner, there’s, let’s see—1, 2—

Q. Well, counting the Learner— A. Well, there’s 10 
people altogether. I would say, that’s not enough.

Q. Now, let me direct your attention, Dr. Barrett, if 
you would, to answer to Interrogatory #8, which is part 
of Exhibit #11. Assuming, Dr. Barrett, that in the total 
operation of a Company, that the total number of em­
ployees consisted of approximately 7,000 employees, and 
further assuming that of this number, approximately 1,000 
were in the category of Coal Handlers;—-would you expect 
a validation study to be conducted? A. I would expect—

Mr. Ferguson: Just a minute, please, sir. I don’t 
see what reference this has at all. Maybe I just 
don’t [154] understand the question.

The Court: Overruled.
The Witness: Well, the point is that looking at 

these raw figures and not knowing the detail about 
the nature of the Plants and the labor force, and 
so forth, there is an excellent opportunity to con­
duct a meaningful validation study and that it 
would be good business practice to do so.

The Court: Mr. Belton, I hope you won’t get

Richard S. Barrett—for Plaintiff—Redirect



136a

Colloquy

too far afield in this examination. Some of these 
questions—you know, are a little hit foreign.

Mr. Belton: As 1 explained to the Court, Your 
Honor, I think it’s necessary for the edification of 
Counsel and the Court, since we are under Title 7, 
that it is a major issue, and the question of valida­
tion does play a role in it. We designed these ques­
tions to try to give some light on just what the 
whole concept is.

The Court: I understand your contention.
Mr. Belton: —Assuming, Dr. Barrett, my last 

question, that a Company had a total enrollment of 
7,000—approximately 7,000 employees, and of this 
7,000, approximately 1,000 were in the category of 
Control Operator. Would you expect a Company to 
conduct a validation study?

Mr. Ferguson: Objection. There’s no—objection. 
[155] There’s no evidence that there are a 1,000 
Control Operators in this case.

Mr. Belton: If I might he heard, Your Honor, 
an answer to Question #8, the Company did indi­
cate the total enrollment of its entire system. We 
realize that the particular facility involved is the 
Dan River Steam Station, which has less than 100 
employees, and what we are trying to show the 
Court is that the system could admit validation 
studies, and the institution of the tests which we are 
challenging.

Mr. Ferguson: My point is just this, Your Honor, 
he’s assuming all sorts of facts that are not in evi­
dence—these hypothetical questions.

The Court: You state your objection each time. 
Overruled. I think he, in a measure—that they are



137a

Colloquy

correct; that your question assumes much. Over­
ruled,—proceed.

The Witness: Let me answer. I would say that 
it is good practice. There are people who do not 
engage in good practice. I cannot say what I would 
expect. I think that is what should be done from a 
number of points of view. One of them is sheer 
economics. Probably they can make money or save 
money by doing a better job of selection, if they 
have that many people in one category.

1156] Mr. Belton: At this time, Your Honor, we 
would like to introduce into evidence—have identi­
fied and introduce into evidence, Plaintiffs’ Exhibit 
#33, which is the Guideline of Employment Test 
Procedures by the—issued by the Equal Employ­
ment Opportunity Commission.

Mr. Ferguson: I have objection to that, Your 
Honor. I ’d like to be heard on that.

The Court: All right.
Mr. Ferguson: May I be heard on it!
The Court: Yes.
Mr. Ferguson: Your Honor, this Guidelines on 

Employment Testing Procedures, issued by the 
Equal Employment Opportunity Commission, con­
tains as a portion of it, a report by a panel of 
psychologists, none of whom has been cross ex­
amined in this matter. The qualifications aren’t 
stated. It is replete with hearsay and opinion evi­
dence. It is not competent. That is the report on 
the last pages—5, 6, 7, and 8. Now with respect 
to the Guidelines which are Pages 2, 3, and 4, I 
would have this to say—the test procedure that 
is becoming the controversy in this case, was insti-



138a

Colloquy

tuted sometime in September of 1965. These Guide­
lines were published August the 24th, 1966. The 
complaint was filed October the 20th, 1966. Now in 
[157] view of all that, I don’t see how this has any 
relevance to our intention of discriminating, if 
that is so, which we deny,—how this has any rele­
vance on that issue whatsoever. When we adopted 
this test procedure, this document wasn’t even a 
wink in the eye of the Chairman of the EEOC.

The Court: 1 would think you would be light, 
ordinarily, Mr. Ferguson, but I continue to be as­
tonished at the rulings about matters of this type. 
It is contrary to my understanding of the rules of 
evidence, but I frankly do not understand why it 
would be competent either, but I should imagine 
that there has been established something, about the 
introduction of this.

Mr. Belton: If the Court pleases, Title 7 sets 
up the Equal Employment Opportunity Commission, 
which has the initial responsibility for determining 
whether an employee is engaged in an act prohib­
ited by that Statute. Included in the Statute is a 
provision that it is not unlawful for an employee 
to act on a professionally developed test. The 
agency which has been given the responsibility for 
administering the Statute in response to questions 
addressed by a number of employees, has attempted 
to set up guidelines on testing, to guide employers 
in the use of tests as a selection [1583 process. 
Again, I might say that Counsel for the Company 
argues that the guidelines were issued after the 
Company instituted its battery of tests, but in the 
same sense where the Legislature said you may, in



139a

private discrimination and in private industry, dis­
criminate up to 1965, you can no longer do it; so 
to the extent that these guidelines have a bearing 
on the practice of the Company in making a deter­
mination as to whether they are acceptable or not 
acceptable, the fact that they were published after 
the Company instituted this practice, is not con­
trolling.

The Court: Have you marked it? Is it marked?
Clerk Vaughn: It’s Exhibit 33.
The Court: Let the record show that the Court 

receives into the evidence, Plaintiffs’ Exhibit 33, 
and that the Defendant objects and accepts to the 
Court’s ruling.

(Plaintiffs’ Exhibit #33, was identified and 
received into evidence.)

By Mr. Belton-.

Q. Dr. Barrett, I show you Plaintiffs’ Exhibit #33, 
and ask you if you are familiar with that document? A. 
Yes, I am.

Q. Directing your attention to Page 2 of that Exhibit, 
Paragraph 1, in which the statement concerning—-well, the 
[1593 first Paragraph, if you would. I would also like 
to ask you, Dr. Barrett, are you familiar or have you read 
Title 7 of the Civil Rights Act of ’64 concerning employ­
ment? A. Yes.

Q. Are you familiar with the use of the word, “Pro­
fessionally Developed Test” as used in that Statute? A. 
I couldn’t pass the test on it.

Q. You could not pass the test on it? A. I don’t re­
member exactly how it was used.

Richard S. Barrett—for Plaintiff—Redirect



140a

Q. My question is, Dr. Barrett, would there be any­
thing in the field of tests and measurements which would 
be comparable to—let me re-phrase the question. Would 
the standards used in the field of test and measurement 
and the use and selection and selection and use of tests 
be comparable to a professionally developed test?

The Court: He said he did not know how that 
was used, Mr. Belton. Wait just a minute now. He 
said he didn’t know about it, and now, we’re going 
to develop that?

Mr. Belton: Your Honor, I thought he said he 
couldn’t recall it from the Statute itself, but he was 
familiar with the document that he does have in 
which the same language is used.

The Court: Sustained.

By Mr. Belton:

Q. I have several more questions, [1603 Dr. Barrett. 
In considering the process of validation of any test used 
in the selection of personnel, would you have an opinion 
as to whether the race of the testee should be considered? 
A. Would you state that again, please!

Q. I ’m saying, in the validation process, or the selection 
process of a test, would you have an opinion as to whether 
the race of the testees should be considered? A. Speaking 
solely from the point of view of—solely from the profes­
sionally scientific aspects of the question, I believe that 
our study—the Ford Foundation study referred to before 
and other studies, indicate that test scores achieved by 
people of widely different socio and ethnic backgrounds 
do not predict in the same way for members of these

Richard S. Barrett—for Plaintiff—Redirect



141a

different groups, and that therefore, in order to develop 
a procedure which will assist in selecting qualified and 
satisfactory employees, it is desirable to consider major 
sub-groups independently, where it is possible to do so.

Mr. Belton: Your Honor, we would like to intro­
duce at this time, Plaintiffs’ Exhibit #34, which is 
a Differential Selection among applicants from dif­
ferent socioeconomic backgrounds, in which Dr. Bar­
rett was a principal investigator for the study. 
Now, we did not list this document on the Final Pre- 
Trial Order because at the time, we were not aware 
of its existence, [1613 and with that, we would 
like to introduce it as Plaintiffs’ Exhibit #34, 
which bears on the question to which Dr. Barrett 
just addressed himself.

Mr. Ferguson: May it please the Court, we of 
course, object to the introduction of that on the 
ground that Mr. Belton has already stated, on the 
further ground that there has been no establish­
ment that Dr. Barrett has his working papers with 
him—the basis of whether the sampling was done 
statistically or random sample. We just all of a 
sudden have this record burdened with a 100-page 
document which entitled, at least to be a sociologi­
cal treatise, and it doesn’t have any bearing on 
the issue in this case, in my opinion, as to the pro­
fessional test. I think it is irrelevant and im­
material.

The Court: Are you people really insisting that 
this document is competent evidence in this situa­
tion, and do you genuinely and sincerely think that 
that is competent for a Court to consider, the way 
this is? Now, you are a lawyer. Now, tell me.

Richard S. Barrett—for Plaintiff—Redirect



142a

Colloquy

Mr. Belton: Yes, Your Honor. A short answer—
The Court: Tell me just why.
Mr. Belton: Because, Your Honor, I think—
The Court: There’s been no foundation for it. 

You just bring it in here and say, “Here it is,” now.
£162] Mr. Belton: That I can do, Your Honor. 

I can lay the foundation for it, and then, I can go 
on and address myself to your question.

The Court: To say nothing about a strict viola­
tion of the rule, that they haven’t had an oppor­
tunity to see it, and of course, you would have a 
right to be up in arms, if they arrived here with a 
document for you, this morning, the first time—of 
how many pages?—to look through, and I frankly 
doubt that just on that basis alone, you know,— how 
can they cross examine him about it? Here, they 
are faced with it at whatever time that it was given 
this morning, and here in a short while, I expect to 
turn Dr. Barrett over to them for cross examina­
tion about what, about that document? They haven’t 
had an opportunity to see it.

Mr. Belton: First of all, Your Honor, I would like 
to put it in and then address myself to the question. 
I would like to have it identified as Plaintiffs’ Ex­
hibit #34.

Mr. Ferguson: Now, one minute, if you please, 
Your Honor. Of course, Your Honor is going to 
rule on the admissibility of this evidence, but I might 
comment that at this point, that he is not qualified. 
You can accept him as an expert in the field of 
Tests and Measurements of something like that, 
and he can give his £163] opinion on these matters.



143a

Colloquy

He can give his opinion as to the results of his 
study, but we still rather strenuously object to it. 
As a matter of fact, after we learned that Dr. 
Barrett was coming, I have one page, myself—just 
one short page that I want to introduce into evi­
dence that they haven’t seen yet, but it’s nothing 
crucial, and it doesn’t involve a 100 pages, like this 
thing does.

The Court: Well, Gentlemen, you mark it. I’m 
not going to allow that introduced, but mark it, so 
that you will be protected.

(Plaintiffs’ Exhibit #34 was marked for identi­
fication.)

Mr. Chambers: May I make one comment, Your 
Honor.

The Court: Yes.
Mr. Chambers: We would concur with the Court 

that this matter was just brought to the attention 
of Counsel for the Defendant, and in all fairness to 
them and in terms of their cross examination, the 
matter might have been listed in the Final Pre- 
Trial Conference report or Order. However, the 
Court does permit one of Counsel to bring in an 
additional exhibit, if it comes to the attention of 
Counsel, subsequent to the Final Pre-Trial Con­
ference. It is my understanding that this matter 
was brought to our attention on [1641 Wednesday 
of this week, after the Court directed that we be 
here with the witness, if we wanted to present one 
on Friday, and at that time, we were unable to get 
it to Mr. Ferguson before this morning. However, 
I can also appreciate the Court’s question of the



144a

Colloquy

admissibility of this document on the other basis, 
but I would submit that it could be submitted as 
corroborative evidence, if for no other purpose.

The Court: Mr. Chambers, now in effect—you’ve 
got to remember that the shoe is on this foot now, 
but it could be running the other way, and to allow 
that—a 100-page document at this juncture, in effect, 
whomever it is admitted against is denied cross ex­
amination—

Mr. Chambers: That’s correct, Your Honor, we 
would not be offering it then as direct evidence upon 
which the Court would draw, to form the opinion 
that the Court might render, but solely as corrobora­
tive evidence to what the witness might testify.

The Court: To the extent that it does corroborate!
Mr. Chambers: To the extent that it does corrob­

orate, and on that basis, we submit that it would be—
The Court: Is this the report that you assisted in 

making? Is that right?
The Witness: The study was conducted under my 

[165] direction as principal investigator and the ac­
tual writing was done by other members of the staff. 
However, I went over the report, made changes and 
recommendations for corrections before it was put 
in this form.

The Court: All right. Mark it, “Plaintiffs’ Ex­
hibit #34” and the Court receives it into the evi­
dence for consideration, only to the extent that it 
corroborates the testimony of Mr. Barrett, and for 
none other. The Defendant objects to this rule by 
the Court, and excepts. All right.

(Plaintiffs’ Exhibit #34 was received into evi­
dence.)



145a

How about Mr. Thies ! Have you been able to 
get him!

Mr. Ferguson: I was just conferring with Mr. 
Ward.

Mr. Ward: If Your Honor, please, he had a 
meeting of District Superintendents, and so forth— 
he had his day filled up. I told him—I took the 
liberty of telling him to finish his meeting of Dis­
trict Superintendents—to call me, so we’d know 
when he’d be here, and he expected to finish by 
11:30. I hope I didn’t say the wrong thing, but I 
thought that these experts would be here for some 
little time.

The Court: I hope that we can get him the first 
[1663 thing in the afternoon.

Mr. W ard: He said he’d do it by 2:00 or 3:00 
o’clock.

The Court: All right.

By Mr. Belton:
Q. Just one or two more questions. I now show you, 

Dr. Barrett, Plaintiffs’ Exhibit #34. I ask you if you 
have seen a copy of that document before! A. I have.

Q. Did you assist in the preparation of the document! 
A. Yes, I did.

Q. Would you explain to the Court, Dr. Barrett, how 
this report came about! A. The Ford Foundation, re­
sponding to a proposal that I made when I was on the 
Faculty at NYTJ, gave a grant to NYU to conduct a study 
on the differential effects of selection procedures, depend­
ing on the minority groups that are involved. There had, 
at that time, been one previous study of which we were 
aware, in which it was found that tests from poll booth

Richard 8. Barrett—for Plaintiff—-Redirect



146a

collectors would predict success among negroes and not 
among whites, and in other tests, might predict among 
whites and not among negroes. This was a small study, 
and it included a course on the one-job category in the 
universe of all the job categories in the country so our 
proposal really was to extend this as far as we could and 
so, we went to organizations that met some standards 
[1673 that we had set up. One was, that they had avail­
able preemployment test results in their files on people 
who are now in their employ; Two, that they had or could 
get some criterion measures—some performance standard 
measure on these people; and Three, that there were 
enough people of at least two ethnic groups to make it 
possible to compare the performance on the test and the 
performance on the job or each group independently and 
see if the test worked the same for both groups.

Q. Did you participate in their preparation of that? 
A. I developed the proposal, and I helped develop the 
specific research design which was then carried out, pri­
marily by Dr. Kirkpatrick and some graduate assistants.

Q. Would you briefly explain the methodology for com­
piling the report? A. Well, we went to the cooperating 
organizations. We identified the people and the job cate­
gory by race. We obtained description of the kind of work 
that was done, the kind of work, the performance standards 
that were expected. We then collected test results, and 
we collected, of course, the performance results, and we 
analyzed thes satistically for the separate groups to see 
how the test functioned.

Q. Now, did you participate in the writing of the report? 
[168] A. The drafts of the report were written by Drs. 
Kirkpatrick and Ewen, and I edited these comments some­
times, and sometimes in a small extent and sometimes 
fairly extensive but I passed over everything.

Richard 8. Barrett—for Plaintiff—Redirect



147a

Q. Did other persons assist you in making this report! 
A. Yes, Professor Katzell.

Q. Would you identify him! A. He’s the head of the 
New York University Department of Psychology—also 
took an active part in the design and conduct of the study, 
and he read all these reports, and depending upon the 
circumstances, the representatives of the cooperating or­
ganizations read and made comments on the reports.

Q. Were there other persons besides Dr. Kirkpatrick 
who participated in its preparation? A. Dr. Ewen,—I 
believe that’s E-w-e-n,—and they don’t know the extent 
to which the graduate assistants,—Mr. Greenhaus, Mr. 
Gavin, and Mr. Cohen, who participated in the actual 
writing.

The Court: Anything further of this question!
Mr. Belton: Just one or two more questions, Your 

Honor. I should be through in about five minutes.
The Court: All right. All right.

By Mr. Belton:
Q. Dr. Barrett, would you state why the report was 

undertaken? [169] A. Simply concerned with this as a 
social issue and also as a scientific issue.

Q. Now, let me put the question once again. In the con­
sideration of the validation of tests, do you have an 
opinion as to whether race played a part in the validation ?

Mr. Ferguson: Objection.
The Court: Hasn’t he answered that before?
The Witness: Yes.
Mr. Ferguson: Yes.
The Court: His answer was, “Yes.”
The Witness: That’s right, yes.

Richard 8. Barrett—for Plaintiff—Redirect



148a

The Court: All right.
Mr. Belton: No further questions.
The Court: All right, you may come down, Dr. 

Barrett, for a moment.
(Witness excused.)
You might want to take your documents with you. 

We will take an undeclared recess for a short time.
(Undeclared recess was taken.)
The Court: All right, Dr. Barrett is with the 

Defendant for cross examination.

Cross Examination hy Mr. Ferguson:

Q. Dr. Barrett, this study that was introduced and re­
ceived into evidence as Plaintiffs’ Exhibit #34-—as far as 
it’s concerned, you don’t know whether Duke [1703 Power 
Company gave any consideration to different Socioeconomic 
or Ethic backgrounds as far as these tests were in use or 
concerned, do you! A. I  don’t know.

Q. As far as Duke Power was concerned, your study 
really has no relevance whatsoever to the tests and use at 
Duke, do they?—As far as Duke Power Company is con­
cerned? A. Well as far as what I  know about Duke Power 
Company is concerned, I would agree.

Q. I t’s true, is it not, Dr. Barrett, that you get as many 
differing variations with respect to—within groups, such 
as a group of white employees, as you would in a group 
of negro employees, or minority employees, do you not! 
A. I don’t know what you mean by “differing variation.”

Q. I  mean, supposing you were examining a group of 
white employees. Differences within that group can be very 
big too, can’t they! A. Yes. You mean, differences in 
their abilities? Is that what you’re talking about!

Richard 8. Barrett—for Plaintiff—Cross



149a

Q. Yes. A. Yes.
Q. I believe, Dr. Barrett, you stated that validation was 

essential where it was possible? Is that right or best? A. 
“Essential” is a very strong word to use. I think that 
organizations can and will function without validation 
[171] where it is possible to have true validation.

Q. I believe you wrote an article in this last Harvard 
Business Review, did you not, Dr. Barrett? A. I did.

Q. January-February, 1968 issue? A. Yes.
Q. I ’ll ask you if in that you didn’t state that tests for 

probably one job out of twenty can be adequately validated? 
A. One job out of twenty adequately validated for two 
different Ethnic groups, that I ’m talking about. If you 
are not concerned with that, there are many more cir­
cumstances where you can do it, yes.

Q. All right, sir, I ’ll ask you if you didn’t make this 
statement in the article? ‘While testing the ability, the 
tests present employees with difficult problems. Their im­
portance in Fair Employment perhaps has been overrated.” 
Didn’t you make that statement? A. Yes.

Q. Didn’t you go further and say, “There are many 
easier ways to discriminate, if the employer is so inclined” ? 
A. Yes.

Q. Didn’t you indicate in this article that this business 
of testing presents a particularly tough problem? A. Yes, 
it does.

[172] Q. And as a matter of fact, the title of your article 
is “Gray Areas In Black and White Testing,” is it not? 
A. Yes,—yes it is.

Q. And I believe you made this statement, did you not, 
—“It is often assumed if Negro applicants score lower than 
whites, the test may be unfair, but this is not necessarily 
the case. If the low-scoring Negroes are also ineffective

Richard S. Barrett—for Plaintiff—Cross



150a

workers because of poor education or the debilitating ef­
fects of discrimination,—it is not the tests that are unfair. 
It is the society” ! A. Yes.

Q. That “the test merely reflects society’s unfairness” ! 
A. That’s right.

Q. Now, I believe, Dr. Barrett, you stated on vour Direct 
Examination that validation was a matter of judgment and 
that the procedure to be used, or used to determine what 
a Company would do to select a test, would include a study 
of the labor market, to have some feel as to the type of 
people that will apply for jobs, and so forth? A. Yes.

Q. You stated, did you not, that this job evaluation should 
be done in terms, or this test evaluation should be done, 
in terms of skills on the job! A. Yes.

Q. The skills required by the job! [173] A, Yes.
Q. You’re not telling this Court, are you, Dr. Barrett, 

that that’s the only way to validate a test, are you! A. 
What’s the only way to validate a test?

Q. By job related-ness? A. No, I went through a series 
of steps in which this is important, and how it is possible 
to ask people questions which on the surface, may seem 
nonsensical and have it turn out that they are valid pre­
dictors. This can happen—it’s a reflection of a lack of 
thorough knowledge of human performance.

Q. And there are other types of validation, are there 
not! There is content validity and there is criterion and 
concurrent validity, is there not! A. Well, the terms are 
—that I  think that you are getting close to is “Predictive 
ability.”

Q. And “concurrent”? A. And “concurrent.” These are 
the same sort of thing except for the time, plus “content 
validity.” These are easily recognized terms, yes.

Q. Well, sir, a test, I  suppose, you would say, should

Richard S. Barrett—for Plaintiff—Cross



151a

have two qualities: one would be reliability and the other 
one would be validity ? A. Yes.

Q. Reliability means, does it not, "Dr. Barrett, [1741 that 
it consistently measures today what it measured yesterday? 
A. Without getting into a long discourse on reliability, 
that’s essentially correct.

Q. And validity means that it is valid for the purpose 
for which you are using it, doesn’t it? A. That’s right.

Q. And I believe, in reading your answer, or the answer 
to Interrogatory #22, you stated that—or that answer 
stated which you read into the record, said that, “Duke 
Power Company uses these tests or minimum acceptable 
scores on these tests, as a substitute or in lieu of a High 
School education” ? A. Yes.

Q. So that’s the aim of the test, is it not? A. I do not 
know what the aim of the test is, from having read that 
statement.

Q. Well, the statement said, did it not, that the purpose 
of accepting minimum acceptable scores on the tests, was 
to accept that in lieu of a High School education? A. Yeah, 
but it also made other statements.

Q. And the tuition refund ? A. I t’s not the aim of the 
test, as far as that answer you read. As far as that goes, 
yes; the aim of the test was to make it possible for people 
to move ahead without [175] the High School equivalent.

Q. Now, you’re a member of the American Psychological 
Association, I take it? A. That’s right.

Q. Would you agree with this statement, that validity 
information indicates the degree to which the test is capa­
ble of achieving certain aims? A. Yes.

Q. And the aim that we are—that Duke is using these 
tests for, is a substitute for a High School Education,— 
isn’t that correct? A. That’s an aim. What the objectives

Richard S. Barrett—for Plaintiff—Cross



152a

of the Duke Power Company are, is something I do not 
know.

Mr. Chambers: Objection.
The Court: Overruled.
The Witness: I testified before as to what that 

statement said. I do not know what was on the minds 
of Duke Power Company.

By Mr. Ferguson:

Q. Now, you talked about job-related validity, did you 
not? Yon said that was the proper way to follow the test, 
did you not? Or one of the ways? A. No, you’re using 
tests which I am not quite sure what you mean—job-related 
validity?

Q. Yes, sir. That’s one way to validate tests—by taking 
the test score and correlating that with the [176] perform­
ance on the job? A. All right. O.K. That’s it, yes.

Q. Now, when you take the test score, that is a factor 
that’s ministerial? You see your test score, and you know 
what it is! A. Yeah.

Q. The other aspect of job-related validity, is perform­
ance on the job, is it not? A. Yes.

Q. So, job performance—rating of job performance de­
pends, does it not, on the subjective interpretation of an 
employee’s supervisor as to his experience on the job or 
as to his productivity or performance on the job? A. With 
relatively few exceptions, that’s correct.

Q. And if there are 5,000 supervisors, you might get 
5,000 different interpretations, mightn’t you? A. Well, 
different—whether the difference in their interpretation is 
pertinent or not. Here, you get 5,000 people looking at any 
one thing, you’re going to get 5,000 different things because

Richard 8. Barrett—for Plaintiff-—Cross



153a

they’re made up differently, neurologically in their experi­
ence and everything else. But that won’t mean that there 
may not be commonality in the things that they observe 
and report.

Q. Each employer faces the situation that is unique in 
his own area, does he not! [177] A. Again, how unique is 
unique! There’s a great deal of commonality and there are 
also unique features in the workaday world. So that can 
only be answered—I don’t think you intend me to do— 
it’s in great detail. You’d say, “What is common”, and 
“What is not common”! It is not unique! You cannot say 
they’re unique because there’re very similar things going 
on.

Q. What I am getting at is the statement that you made 
in your article again. I believe It goes like this, “Since 
each employer faces a situation that is in some respects 
unique, he and he alone is in a position to develop and 
invalidate tests and other selection procedures which will 
help him to hire from the available labor force, the best 
employees, regardless of race! A. Yeah. He may hire 
someone to do it, yeah.

Q. Are you familiar with the job duties at Dan River? 
A. I have read over a part of the deposition -which con­
sisted of job descriptions, on the hourly employees and 
supervisors.

Q. And you’ve never been up there and seen what they 
do! A. No.

Q. You don’t know how the test is administered—scored, 
or acted upon, as far as Duke Power is concerned, do you! 
[178] A. I read a deposition by a man who gave some of 
the tests, and that’s all I know about it.

Q. That’s all you know about it? You can’t describe the 
facilities where the tests are given or how they’re admin­

Richard S. Barrett—for Plaintiff—Cross



154a

istered as far as Duke Power Company is concerned, can 
you? A. Except just what I learned from the deposition.

Q. Now, Dr. Barrett, the title of your study indicates 
that there should be some sort of separate treatment for 
Negroes or minority groups and whites, as far as testing 
is concerned? A. This is possible. You don’t know whether 
this is true until you try it out. It exists in some cases.

Q. Well, I believe you say in your article, that when 
everything else fails, the only thing left to do is to grant 
Negroes special treatment? A. This, I say, is something 
that should be considered. I do not feel that it is some­
thing that is legal or even a moral obligation of a given 
employer, although people do it, and I think it’s appropri­
ate that they should do it.

Q. Even though that means one or two things, doesn’t 
it? Either giving them special treatment or accepting poor 
performance on the job by minority groups? Isn’t that 
what it means? A. Well, this special treatment may aim- 
ply be the 1179] appropriate training. It may be different 
job duties—different job classifications, and there are Com­
panies, and I recognize that this is true, who do accept 
poor performance on the part of people because of racial 
background, and so forth. This is done.

Q. And that comes under attack from supervisors who 
are held accountable for the work as well as members of 
the majority group, who see other people getting by with 
less than what they get by with, and their work would be 
unacceptable, wouldn’t it? A. This is one of the dangers 
of this policy, and it is a good reason why it should be rec­
ommended only under special circumstances—under control, 
and to make sure it doesn’t get out of hand.

Q. Dr. Barrett, do you suggest—are you suggesting dif­
ferent norms for different races? A. Based on the evi­

Richard S. Barrett—for Plaintiff—Cross



155a

dence that I am familiar with,—in this procedure, in using 
different norms on the tests, may lead to the selection of 
people from the minority and majority groups, who are in 
total more effective than if the same norms are used. Now, 
the answer is “Yes.”

Q, All right, sir, assuming that the same test is used, 
then, that would necessarily mean you’d have to adopt 
separate scores, wouldn’t it! A. Yes.

[1803 Q. And wouldn’t that affect the whites who may 
have the same mental ability levels as negro, and it would 
work discrimination in reverse? A. The intent of the test 
is not to have them exist-—the intent of the test is to select 
people who will perform adequately on the job. The issue 
then is not whether they score high or low on the test; 
the issue is whether they perform satisfactorily on the job, 
if it is possible by some adjustment of the scores for one 
group to get just as good performance from members of 
that group, and this does not discriminate against the 
whites at all or the majority or whatever other group 
we’re talking about.

Q. Well, it would affect whites in their own group; 
wouldn’t it! A. I don’t see why. What you really are 
predicting is the performance on the job, and you get the 
top people, both white and negro, but you get them by dif­
ferent means, and that the accepted level of performance 
in both groups is essentially the same, and this does not 
adversely affect any one group.

Q. Isn’t it true that whites in the North and Northeast 
and Mid-west go higher on tests than the whites in the 
South? A. Yes.

Q. Isn’t it a fact that it’s difficult for industry [1811 to 
operate on different standards? A. Well, maybe. I don’t 
think it’s difficult. It’s a matter of, everything you do,

Richard S. Barrett—for Plaintiff—Cross



156a

costs, and if the cost is worth it, why, you should do it. 
If it doesn’t, it isn’t worth i t ; you shouldn’t do it.

Q. Well, sir, isn’t the answer that minorities should 
raise their standards, because industry can’t afford to re­
linquish their standards in the competitive world of today, 
can they!

Mr. Chambers: We object to that, Judge.
The Court: Sustained.
Mr. Ferguson: I may have just one more question.
The Court: All right.
Mr. Ferguson: I believe that’s all, Dr. Barrett. 

Thank you, sir.
The Court: All right, come down.
(Witness excused.)
Is there any further evidence for the Plaintiffs!
Mr. Belton: Nothing further, Your Honor.
The Court: Have you had a report on Mr. Thies, 

recently ?
Mr. W ard: Yes, Your Honor. He said that he was 

getting underway in just a few minutes, and this was 
during the recess, and he will be here by 2:30, I ’m 
sure.

The Court: All right.
E182] Mr. Ward: It takes two good hours to 

drive it, to come into Greensboro. It takes about 
that long.

The Court: Let’s see, he has to come from
Draper!

Mr. Ferguson: No, sir, he’s from Charlotte.
The Court: I regret that I felt the need to do 

that, but I believe maybe to get this record in the

Richard 8. Barrett—for Plaintiff—Cross



157a

shape, it would be proper that perhaps we should 
have him answer that question.

You people have simply objected to this evidence 
that is prior to the July date. I don’ tknow whether 
that was a perfunctory objection or not. If the 
Court should be wrong in that, why, maybe we are 
wasting some time here. Do you people genuinely 
think that that is improper evidence!

Mr. Ferguson: Well, Your Honor, it depends on 
the context in which you are looking at it. It seems 
to me that any act which occurred before the ef­
fective date of the Act, which was legal to admit 
that, has shown that the same act is now illegal— 
just doesn’t hold water. Then you assume that 
something occurred before the Act, all of a sudden, 
on July the 2nd, 1965, matured into a full-bloom 
cause of action!

The Court: I agree with you. We had a suit,— 
Mr. Chambers, you were in,—and I sustained an 
objection about one of your experts over there, and 
later, [1831 I thought sincerely that it was not 
competent, but after we closed the evidence, I  don’t 
don’t know what happened to the other side, but 
they wrote me stipulating that the testimony would 
come in, you know. I didn’t know that this was a 
matter that you people were just perfunctorily ob­
jecting to, and it’s obvious to me that you have a 
genuine feeling about it, and that you think it is 
incompetent, and I agree with you.

Mr. Ferguson: I just don’t think it has any prova- 
tive value, Your Honor, and I think it is entirely 
within the trial Judge’s discretion.

Colloquy



158a

Colloquy

The Court: Of course, you know that in some of 
these teacher’s suits and so forth, that they have 
allowed and considered discriminatory practices that 
have occurred before, to go into those suits.

Mr. Ferguson: I have an argument for that.
The Court: What is your argument about that?
Mr. Ferguson: Your Honor, there you’re talking 

about a controversion of the 14th Amendment which 
says no State shall—and this is a private action, 
not the action of any governmental agency.

The Court: Well, we won’t argue that point. I 
am sure the Circuit Court will let me know if I’m 
wrong. They usually do.

Mr. Chambers: Your Honor, might I make one 
[184] inquiry about the Court’s ruling? Is it the 
Court’s ruling that no act of a Company occurring 
prior to the effective date of the Civil Rights Act 
of ’64, is competent for any purpose ?

The Court: I  have ruled that it is not competent 
for what you are talking about in this complaint. 
You complained that they’re in violation of Title 7, 
specifically, Section so and so of that Act that we 
referred to as the Civil Rights Act. That’s what 
you said. You referred, Mr. Chambers, to a Section 
—that Section became effective in July of ’65. Now, 
how could something without the issue as to whether 
they are in violation of that Act—how would some­
thing that happened prior to its effective date,— 
tell me—

Mr. Chambers: Even what transpired prior to 
the effective date of the Act might still presently 
affect the rights of the employees today, subsequent 
to the effective date of the Act?



Colloquy

The Court: Yes.
Mr. Chambers: If for instance, a Company dis­

criminated in its initial hiring practice, prior to the 
effective date of the Act, which admittedly was 
not prohibited by Federal Statute, and put all negro 
employees as Janitors and now it poses a criteria 
for negro employees to become employed in posi­
tions that [185] were formerly excluded.

The Court: Let’s lift it out of the context of 
Civil Eights for a moment, and say you have an 
Act that is passed or a law that is passed, and then, 
a person is accused of violating that law. It is 
just inconceivable to me that it would have value 
in deciding the issue of whether he was violating 
the Act, after its effective date that you go back 
and show what he was doing prior to that date.

Mr. Chambers: Suppose we consider the school 
cases, where prior to 1954, it was not unconstitu­
tional to discriminate and subsequent to 1954, it be­
came unconstitutional to discriminate, and the Court 
then talked about the necessity for taking certain 
corrective steps to eliminate the discriminatory 
practices that the School Board followed prior to 
1954. Now, wouldn’t practices that occurred prior 
to 1954 be competent in evidence in pointing out 
what the Board needed to do in order to disesta­
blish—

The Court: I don't think that is analogous to 
the situation that we have here. As I mentioned, 
this action is pin-pointed and in a different aspect 
from that. I don’t think that would be a comparable 
situation.

Mr. Chambers: That was what we—



160a

[1863 The Court: There’re all kinds of questions. 
How far back? Would we sit here and put in evi­
dence—I mean, where do you stop and how far 
back do you go? Does the fact that much time has 
transpired since the effective date of this Act! To 
me, it might make a difference, if this were pin­
pointed closer to the effective date of the Act, but 
that isn’t true. Here it is more than a year after, 
is when this action is brought, and of course 
brought, but it is now ’68—more than, ’67—it’s 
more than two years now. Where are we going 
with all this chasing around!

Mr. Chambers: I would think, as far as the Court 
needed to go—whether to determine whether the 
present practices of the Company are depriving any 
individual in the Company of Equal Employment 
Opportunity. The Phillip Morris decision went back 
several years.

The Court: But that wasn’t really brought up in 
that—

Mr. Chambers: I think it was necessary for the 
Court, though, in reaching this decision as to the 
type of remedy, and also, in reaching its decision as 
to whether the present practices of the Company 
violated the right of the employee—

The Court: Well, let’s move on to four or five 
years ahead. Now, are we then—

[187] Mr. Chambers: I assume that there have 
been no corrections of the practices of the Company, 
even now, after 13 years after the Supreme Court’s 
decision. The Supreme Court—the Courts still al­
low practices that occurred prior to ’54, if we’re 
talking about our coun—

Colloquy



161a

The Court: The evidence is going to be in there, 
and you have it in the Interrogatories, and we’re 
getting Mr. Thies back here, and our Circuit will 
have no reservation about following what their 
judgment dictates about it. Let’s take our recess 
until 2 :00 o’clock.

Mr. Ferguson: Your Honor, if it please the Court, 
—I don’t know what your normal hours are, but I 
believe I could get through the Direct Examination 
of Dr. Moffie in maybe 15 or 20 minutes.

The Court: You have another witness?
Mr. Ferguson: Yes, sir, I have an expert witness.
The Court: Oh, yes, you did mention that.
Mr. Ferguson: If we can finish and shorten the 

lunch hour somewhat and get back by 2:00 o’clock 
and finish this Cross Examination—

The Court: How long do you think on Direct?
Mr. Ferguson: I wouldn’t say over 15 or 20 

minutes.
The Court: I tell you, I have to meet somebody at 

[1883 lunch. Let’s come back here at 1 :45. Does 
anybody have any appointments in reliance of the 
fact that you would be away until 2 :00, as we usually 
do? Would that affect either side?

Mr. Ferguson: No.
The Court: All right, let’s come back here at 

1:45 instead of 2 :00 ’clock then, and get into that. 
All right.

(Lunch recess was taken.)
The Court: All right, Mr. Ferguson, if you are 

ready to call your witness?
Mr. Ferguson: Come around, Dr. Moffie.

Colloquy



162a

Whereupon, D r. D annie Moffie was duly sworn, and 
testified as fo llo w s:

Direct Examination by Mr. Ferguson:
Q. State your name, please, sir. A. Dannie Moffie.
Q. What’s your educational background ? A. I got my 

BS and MA and PhD at Pennsyvania State University.
Q. What is your present occupation? A. I am a Pro­

fessor at UNO and a Management Consultant.

Mr. Ferguson: If it may please the Court, I’d like 
to state for this record that Dr. Moffie is here as an
[189] expert witness on behalf of Duke Power 
Company, and any opinion or statement that he 
might make, are not those of the University and are 
his and his alone. He asked me to make that state­
ment for the record.

The Court: All right.

By Mr. Ferguson:
Q. Would you name some of the clients for whom you 

are a Consultant? A. Yes. Burlington Industries, Duke 
Power, the Company that I was formerly with—Hanes 
Corporation, Fiber, on occasion—and it’s Celanese Fiber 
Company.

Q. Are you presently engaged in any research in con­
nection with Industrial Testing? A. Yes.

Q. What is it? A. Very much along the lines of the 
problems that are being discussed here. We are trying to 
validate tests in a couple of these industries who are 
also concerned or also in the process of doing research 
on creativity at the University and looking at creativity

Dr. Dannie Moffie—for Defendant—Direct



163a

in terms of how to predict it and how to assess it, and 
we are doing this really with a Research Grant from the 
Richardson Foundation, like in the other witness’s case, 
as he is working with the Ford Foundation.

Q. Have you ever been employed in Industry, Dr. Moffie! 
A. Yes, I have.

[190] Q. By what Company and how long! A. I was 
a Vice-President at Hanes Corporation in Winston-Salem 
at the Hanes Hosiery Division. It has now merged with
P. H. Hanes Knitting Company from 1955 until 1962.

Q. What Professional organizations and societies, if any, 
do you belong to! A. I belong to the American Psycho­
logical Association, the North Carolina Psychological Asso­
ciation,—at the moment, I am transferring my membership 
in Sigma Phi from State University to Chapel Hill—North 
Carolina State University to Chapel Hill,

Mr. Ferguson: If it please the Court, I could go 
through a lot more of Dr. Moffie’s qualifications here, 
but I do have a document consisting of 5 pages, 
which I have furnished Counsel for the Plaintiffs, 
and I would like at this time to have it marked as 
Defendant’s Exhibit #2, in which his qualifications 
and his education and his work experience and so 
forth is clearly set out together, with the name of 
his clients and the publications he’s made, and the 
present research in which he is engaged.

The Court: Any objection to this Exhibit, Mr. 
Belton!

Mr. Belton: No.
[191] The Court: All right, let the record show 

that Defendant’s Exhibit #2, being a document set­
ting out Dr. Moffie’s educational background and 
work experience, etcetera. All right.

Dr. Dannie Moffie—for Defendant—Direct



164a

(Defendant’s Exhibit #2  was marked for iden­
tification.)

Mr. Ferguson: At this time, I ’d like to tender 
Dr. Moffie as an Industrial Psychologist in the field 
of testing.

Mr. Belton: Just one or two questions.
The Court: In the field of what!
Mr. Ferguson: As an expert Psychologist in the 

field of Industrial and Personnel Testing.
The Court: All right, Mr. Belton.
Mr. Belton: Dr. Moffie, I think you indicated that 

you were doing research along the same lines as Dr. 
Barrett was doing?

The Witness: Not in the areas of Differential 
Equations at the moment. What we are doing is—• 
we are doing research in Concurred Validity, and 
Predictive Validity. We have not attempted any­
thing in the areas of Differential Equations, in terms 
of various Ethnic Groups. I ’m not doing that. It’s 
not that kind of research.

The Court: All right, let the record show that 
[192J the Court finds that Dr. Moffie is an expert 
Psychologist in the field of Industrial and Per­
sonnel Testing. All right.

Mr. Ferguson: Dr. Moffie—I’m sorry, Your Honor. 
Did I interrupt you?

The Court: No.

By Mr. Ferguson:
Q. Dr. Moffie, are you familiar with the EF1 Wonderlic

Test and the Bennett Mechanical Test Form “A A”! A.
Yes, I  am.

Dr. Dannie Moffie—for Defendant—Direct



165a

Q. Are you familiar with the Manual? A. Yes, I am.
Q. Of your own knowledge, please state what extent 

these tests are being used by employers, if you know? A. 
As the Wonderlic Test is used very widely—I expect, one 
of the most widely used intelligence tests in the country— 
the Manual particularly indicates that it is being sold and 
used by the 1,000s. In some months, it involves 50,000 
cases. The Bennett “AA” is distributed by the Psychologi­
cal Corporation. It is also used quite widely. There are 3 
forms of the Bennett: the Bennett “AA”, the Bennett 
“BB”, and the Bennett “CC”. The “A” is the lowest form. 
Then, there is a middle form, and the “CC” is the form 
that is generally used for the Engineers. I am acquainted 
with both of them.

[193] Q. All right, sir. What kind of tests are they, 
please? A. All right. The Wonderlic—the Wonderlic 
Test is a measure of general intelligence. When it was 
originally constructed, Wonderlic—they took about 50 
items from the Otis Self-administering Test, which is 
another test of Intelligence, and then constructed some of 
the early forms. Here recently, he constructed 4 other 
forms, which are variations, and all of them are compar­
able, but the test is general intelligence. It measures one’s 
ability to understand one’s ability to think—one’s ability 
to use good judgment, and the items in the tests measure 
these kinds of characteristics or factors.

Q. What about the Bennett! A. Bennett “AA” is the 
measure of mechanical comprehension. It measures how 
well one understands the workings of—of pullies, for ex­
ample or projectories, and this is all done by pictures. 
It is a measure of mechanical understanding—how a simple 
machine would operate—the wheel and the lever and so on.

Q. Dr. Moffie, you have heard preference in the testi­

Dr. Dannie Moffie—for Defendant—Direct



166a

mony in this case to professionally developed tests? A. 
Yes.

Q. Based on your knowledge and training as an expert 
in the field of Industrial and Personnel Testing, do you 
[194] have an opinion satisfactory to yourself as to 
whether or not the Wonderlic and the Bennett Mechani­
cal Comprehensive Test Form “AA” are professionally 
developed? A. In my opinion, they are.

Q. First of all, the Wonderlic was, up until about a 
year ago, distributed by the Psychological Corporation. 
The Bennett “AA” is also distributed by the Psychological 
Corporation, but more than that, the values that indicate 
reliability and validity and these other 2 criteria that 
Psychologists used in evaluating a test—is it reliable, that 
is, does it measure consistently? Is it valid—that is, does 
it measure whatever it is supposed to measure—its aim, 
and in both cases, I would say that these 2 tests do meet 
these criteria.

Q. Dr. Moffie, state whether or not there is any category 
into which the Wonderlic and the Bennett Mechanical 
tests fall, for the purposes of administration? A. Yes.

Q. What is it? A. Category “A”—the level “A”—the 
American Psychological Association has set up 3 levels 
under which all tests are classified—Level “A”, Level “B”, 
and Level “C.” Level “A” is that category that can be— 
that has tests in it, or the tests are classified in it, and 
that can be given by [195] non-psychologists; category “B” 
by people who have had some training in testing, either 
a course or 2, as the Manual indicates; Level “C”—these 
are the tests that can be given only by Psychologists. In­
cidentally, these two tests—the Wonderlic and the Bennett 
Mechanical “AA” are Level “A” tests.

Dr. Dannie Moffie—for Defendant—Direct



167a

Q. In other words, they are the lowest level of tests for 
the purposes of administration! A. That’s correct.

Q. Dr. Moffie, do you know who administers the tests 
or who has administered the tests that have been given 
at the Defendant’s Dan River Steam Station! A. Yes.

Q. Who! A. Mr. Richard Lemons.
Q. Do you know him! A. Yes, I do.
Q. Do you know what his education is I A. He’s a Me­

chanical Engineer by training. He got his degree at North 
Carolina State University.

Q. Mr. Moffie, state whether or not you are familiar with 
the testing facilities at the Dan River Steam Station! 
By that, I mean, do you know where the tests are given? 
A. Yes, I do.

Q, Would you describe it, please, sir! [196] A. Yes. 
In preparing for this case, I decided to spend the day up 
there. The tests are given in a room, I would say, almost 
half the size of this one, and as a Psychologist, in looking 
it over, I would say that it meets all of the requirements 
of a test room, in the sense of ventilation, lighting, seat­
ing arrangement, and so forth.

Q. Would you state whether or not you have conducted 
a Training School for Duke Power Company as it relates 
to tests! A. Yes, I did. About 2M> years ago, following 
some of my work with Duke Power, I ran a 1-day training 
program in Charlotte, where I taught the Personnel Su­
pervisors how to give these tests—how to interpret them— 
how to understand what the score was, and how to score 
them, and so forth. This was a 1-day program in Char­
lotte, North Carolina.

Q. Do you know whether or not Mr. Lemons was there! 
A. Yes, he was.

Q. Mr. Moffie, do you know what Duke requires as mini­

Dr. Dannie Moffie—for Defendant—Direct



168a

mum acceptable scores on the Wonderlic and the Mechani­
cal “AA?” A. Yes, I do.

Q. What are those requirements ? A. We are referring 
now to the jobs in question-—are we not!

Q. No, sir, I ’m just asking what minimum acceptable 
[197] scores are set up or what are the minimum accept­
able scores—that Duke would accept on these tests! A. 
It’s 20 on the Wonderlic and 39 on the Bennett “AA.”

Q. All right, sir. This is an instrument which has been 
offered and received in evidence as “Plaintiffs’ Exhibit 
#13,” entitled Wonderlic Personnel Test Manual by E. F. 
Wonderlic. Do you recognize that! A. Yes, I do.

Q. Are you familiar with it! A. Yes, I am.
Q. Directing your attention to Page 5 of Plaintiffs’ Ex­

hibit #13, Dr. Moffie, does it state what the average score 
of the high-score graduate is, on the Wonderlic Personnel 
Test! A. Yes, it does.

Q. What does it show! A. 21.9. Dr. Barrett pointed it 
out this morning.

Q. And that is 2 points higher than Duke’s minimum 
acceptable score, isn’t it? A. That’s correct.

Q. What is the copyright date shown on Exhibit #13? 
A. 1961.

Q. Dr. Moffie, are you familiar with the Cooperative Re­
search Study of Minimum Occupational Scores for the 
Wonderlic Personnel Test by E. F. Wonderlic & Asso­
ciates, Inc. [1983 as represented in this black book here ? 
A. Yes, I am.

Mr. Ferguson: I ’d like to request that this be 
marked for identification as “Defendant’s #3 .”

(Defendant’s Exhibit #3  was marked for iden­
tification.)

Dr. Dannie Moffie—for Defendant—Direct



169a

Dr. Dannie Moffie—for Defendant—Direct 

By Mr. Ferguson:
Q. Dr. Moffie, this is an instrument that has been marked 

for identification as “Defendant’s Exhibit #3.” Would you 
compare this with Page 53 of the Manual and see if they 
are one and the same? A. Well, I can’t check all these 
figures.

Q. Does it appear to be answered, “Yes”? Are you satis­
fied that that is the same page as Page 53? A. Yes.

Q. All right, sir. When was that study published? A. 
Well, it’s in the book, and I assume the date that—that—

Q. When was it published? A. 1961.
Q. 1961? A. I’m sorry. Let me look inside. 1966.
Q. Does the study report “Minimum Occupational Scores 

by Industry?” A. Yes, it does.
Q. State whether or not “Minimum Scores for Utilities” 

£199] are reported? A. Yes, they are.
Q. Do you know whether or not Duke Power Company 

cooperated in the study? A. Yes, it did.
Q. Now, Page 53 shows the “Minimum Occupational 

Scores for Utilities,” does it not? A. That’s correct.
Q. Dr. Moffie, you previously testified that you spent a 

day up at Dan River in the preparation for this case. Are 
you familiar with the job duties of personnel at the Dan 
River Plant, and if so, state how you became familiar with 
them ? A. I became familiar with them in two ways: 1, I 
observed, in moving around through the Plant as to what 
each job was, and then I also studied the job duties as 
written by the Company, so that I have seen it from both 
standpoints.

Q. Dr. Moffie, directing your attention to Page 53 of the 
study—that is that document that has been marked “De­
fendant’s Exhibit #3,”— A. 0. K.



170a

Q. Would you state the category or categories into which 
the jobs at the Dan River Steam Station fall! A. The 
best that I could do would be the last two categories,-— 
the Plant Staff and Line Personnel, and then [200] as I 
reviewed the jobs, I think many of them would fall in that 
other category, which is Day Labor, and Special. These 
would be the categories that I would see them falling into.

Q. What is the range of the scores in those categories? 
A. For Plant Staff and Line Personnel, these scores go 
from 27 to 23 and they hover around 18, 19, and 20. Many 
of them are in that category.

Q. How do these scores compare with Duke’s Minimum 
Acceptance Scores? A. Oh, I would say they are very 
much in line with what Duke Power has set up, since it is 
somewhat—and even since it is somewhat flexible,—since 
as was pointed out the other day that if a person made a 
score of 19 and say 40 on the Bennett, that that person 
would still be accepted and so there is some flexibility. 
My feeling is that the score of 20 hovers right in the middle 
area here, without any question.

Q. And that is, in the jobs where Laborers could be 
promoted! A. That’s correct.

Mr. Ferguson: I would like to request that this 
be marked for identification, as “Defendant’s Ex­
hibit #4 .”

(Defendant’s Exhibit # 4  was marked for iden­
tification.)

By Mr. Ferguson:

Q. Dr. Moffie, this is an Exhibit [201] #4. It’s entitled, 
“Tests of Mechanical Comprehension, Form “AA” Manual,

Dr. Dannie Mo fie—for Defendant—Direct



171a

George K. Bennett.” I hand it to you and ask you if you 
recognize it! A. Yes, I do.

Q. Are you familiar with that Manual? A. Yes, I am.
Q. Directing your attention to Page 6 of Defendant’s 

Exhibit #4, does it show the average score of the High 
School graduate on the Bennett Mechanical “AA” Test! 
By that, I mean, what does it show as the 50th percentile 
of the High School Senior average? A. It shows a score 
of 39, and this is exactly the 50th percentile.

Q. Would you consider this to be the norm for a High 
School graduate? A. A 50th percentile means that it is 
the exact average of 50 per cent above and 50 per cent 
below.

Q. Now, directing your attention to Page 7,— A. O. K.
Q. Of Duke’s Exhibit #4, does it show or does the 

Manual on that page show what the Industrial norms are 
for the Mechanical “AA’ Test? A. Yes, as all manuals, 
there are various norm tables and the 50th percentile for 
the norm table that would be in my opinion closest to the 
jobs under consideration, would be [202] applicants for 
unskilled jobs, and for that, it is 38, which would be 
roughly, one level down from the skilled jobs that are 
being considered here at this hearing.

Q. You don’t know what those different classifications 
across there mean, I take it ? A. Well, like in any Manual, 
there are various types; for example, Engineering posi­
tions would be up in the 15s; applicants for Mechanical 
positions would be 35; Bus and Street Operators, 39; and 
the closest that I could come to would be Applicants for 
Unskilled Jobs, and that’s 38, and the Company requires 
39,—you see, one step up in terms of the job categories.

Q. All right, sir. Dr. Moffie, assuming the greater rate 
of the evidence shows and the Court should find as a fact

Dr. Dannie Moffie—for Defendant—Direct



172a

the following: that Duke’s Steam Production Department 
and in particular, the Dan Eiver Steam Station has a 
policy of requiring a High School education in order to be 
considered for promotion in the Coal Handling Operations 
Department, and from the Labor Department and also 
from the Coal Handling Operation Departments into the 
Maintenance and Operation Departments inside the Plant; 
that the Company has immediately available to it the E. F. 
Wonderlic Personnel Test and the Bennett Mechanical 
Comprehension Test Form “AA” ; that 50 per cent of the 
High School graduates taking these tests scored 21.9 on 
the Wonderlic Test and 39 on the Mechanical [2033 Com­
prehension Test; that Duke utilizes as Minimum Accept­
able Scores, 20 for the Wonderlic and 39 for the Mechani­
cal Comprehension Test. Now, assuming that the greater 
weight of the evidence shows that, and the Court should 
find this a fact,—those facts, do you have an opinion satis­
factory to yourself based on your knowledge and experi­
ence in the field of Industrial and Personnel Testing as 
to whether or not Duke’s acceptance of these Minimum 
Acceptable Scores, is a reasonably satisfactory substitute 
for a High School education?

Mr. Chambers: Objection.
The Court: Overruled.
The Witness: I do have an opinion.
Mr. Ferguson: What is your opinion?
Mr. Chambers: Objection.
The Court: Overruled.

By Mr. Ferguson:
Q. Go ahead. A. My opinion is, as a substitute for or 

in lieu of a High School education, that this is a reason­

Dr. Dannie Moffie—for Defendant-—Direct



173a

able request, and frankly, as a Psychologist and working 
in Industry, I think the Company has leaned over back­
wards, really.

Mr. Chambers: Objection.
The Court: Sustained.
The Witness: All right. My reasoning behind that 

is that for a 12-minute test, a man can move into 
the [204] upper category. My reasoning behind that 
is that for a 12-minute test, a man can move into 
the upper category, does not need a High School 
education, and it is only 25 or 30 minutes on the 
Bennett “AA.” Consequently, if he can pass the 
test, he has met the Company requirement of a High 
School education, whereas, if one has to go to school 
to get ready for a High School education—just to 
take a High School Equivalency Exam, this may 
take 2 or 3 years, and then, there’s still no assur­
ance of having passed it.

These scores are scores—
Mr. Chambers: Objection.

By Mr. Ferguson:
Q. That’s all, Dr. Moffie. Dr. Moffie, this morning, the 

Plaintiffs introduced into evidence, certain Guidelines on 
Employment Testing Procedures, as has been put out by 
the Equal Employment Opportunity Commission. Have 
you read those? A. Yes, I am very well acquainted with 
them.

Q. In what terms, Dr. Moffie, does the EEOC establish 
Guidelines with validation? A. The Commission report 
of these Guidelines here, have considered validity, exclu­

Dr. Dannie Mo fie—for Defendant—Direct



174a

sively in terms of Job Relatedness. It is my opinion that 
in some aspects, the Guidelines are too narrow—

Mr. Chambers: Objection.
[205] The Witness: And others are too broad.
The Court: Overruled.
The Witness: I think they’re too narrow in the 

sense that there is more than one type of validity. 
We have got Content Validity, there is Job Validity 
or Criterion Validity. We have Construct Validity 
and very often, as was pointed out this morning, 
Industry has to use its best judgment. One can’t 
wait for Predictive Validity or Concurrent Validity. 
Consequently, the Guidelines are a little too narrow, 
from that standpoint, and it is well-accepted in Psy­
chology that we have 3 types of validity,—Content 
Validity, Criteria-Related Validity, and Construct 
Validity. I think they are too broad in other cases 
where, when a professionally developed test is con­
sidered. As defining the law, professionally devel­
oped, as considered by the Guidelines, are too broad 
in the sense that they want to consider the testing 
facilities, who gives the test, the administration of 
the test, and normally to a Psychologist, a profes­
sionally developed test means that it meets the cri­
teria of validity and reliability and validity, in any 
of these 3 categories that I have indicated that that 
would be my opinion.

By Mr. Ferguson:

Q. Dr. Moffie, directing your attention to Page 3 of Plain­
tiffs’ Exhibit #34, I will ask [206] you to state whether

Dr. Dannie Moffie—for Defendant—Direct



175a

or not the Commission recommends any particular test! 
A. No, it does not.

Q. Further directing your attention to Page 3 of the 
Guidelines, state whether or not the Commission adopts 
job-related tests as the last words? In other words, do 
they say that just special emphasis should be put on it, or 
do they say that that is the only way! A. Well, I think 
the Commission is also trying to find itself, too, in estab­
lishing these Guidelines, but the Commission does imply 
as a last word, that it must be job-related. I get that im­
pression, as I read the Commission Guidelines.

Q, All it requests is that they place special emphasis on 
it? A. Yes.

Mr. Ferguson: You may examine him.
The Court: All right, Mr. Belton.

Cross Examination by Mr. Belton:
Q. Dr. Moffie, did you assist the Company in establishing 

the Cut-off Score for the Wonderlic? A. Not on this par­
ticular situation. I did, in terms of the total battery—for 
the Company as a whole, but on this particular situation, 
I did not—that is, in this particular job. I don’t know 
whether I am making myself [207] clear on this. For this 
particular situation, I did not.

Q. When you say particular situation— A. I am refer­
ring to Dan River Mills, yes.

Q. Dr. Moffie, I believe you made a reference to Dan 
River Mills— A. Dan River Steam Plant, I’m sorry.

Q. Prior to your visit to the Dan River Steam Station, 
had you made a study of the job contents at Dan River? 
A. Yes, I did.

Q. When did you visit Dan River Steam Company—

Dr. Dannie Moffie—for Defendant—Cross



176a

Steam Plant! A. A week ago, today, I believe. Yes, a 
week ago, today.

Q. Was that your first trip! A. Yes, it was.
Q. Did you have knowledge of any written job descrip­

tions prior to the ones you referred to in your Direct Ex­
amination! I think you referred— A. Yes, the ones that 
are used here.

Q. Would the written job descriptions be the ones—that 
were given to us! A. Yes, these are the job duties that 
I have seen. When the original cutting scores were estab­
lished, it was done largely in terms of interviews with Mr. 
Austin Thies, Kenneth Austin, and this was done about 
2l/2 or 3 years ago, [208] when the original tests—when 
the original cutting scores were established. This was in 
Charlotte. This was done entirely in terms of interviews 
as to what the jobs required at each of the job levels.

Q. And whom did you interview! A. Austin Thies.
Q. Did you interview him! A. Yes. And we spent 

roughly 2 days in discussing the various types of jobs in 
Charlotte—Kenneth Austin, too, who isn’t here at this time.

Q. Did you assist Duke Power in selecting the Wonderlic 
Test! A. Yes. At the same time, it was being used by 
other Utility Companies, and it wasn’t just a recommenda­
tion entirely on my part. It was a support of this test 
plus the fact that other Utility Companies were using it, 
but I have used this test in the Industry that I was in, 
for example. 0. K. Go ahead.

Q. My question was, did you assist or recommend to Duke 
Power that they select the Wonderlic Examination? A. 
Well, it wasn’t exactly a final recommendation; you see, it 
was a joint—it was a joint decision between myself and 
the officials of the Company, and I recommended it cer­

Dr. Dannie Moffie—for Defendant—Cross



177a

tainly, as a professional test, but it was being used by the 
Utility Industries.

[209] Q. Did you recommend the Mechanical Test! A. 
Yes, I did.

Q. When approximately did you make the recommenda­
tion that the Wonderlic be used? A. This goes back to— 
in fact, July of ’65. July of ’65, is when I wrote my original 
recommendations to the Company.

Q. Now, you said that you had several days of discussion 
with officials concerning jobs? A. That’s correct.

Q. Did they give you detailed information as to job con­
tent? A. As detailed as one can get at, let’s say, inter­
views ; as detailed as I felt like I needed, in terms of what 
I would want to decide on—what tests we would select, yes. 
The interviews supplied me in terms of helping to make 
the selection. 0. K.?

Q. Do you think that your opinion would have been 
changed, Dr. Moffie, if you had done it and done an outside 
inspection of what actually goes on in each job? A. I don’t 
think so.

Q. I think you testified as to your opinion of what a pro­
fessionally developed test is? Is that correct? A. That’s 
correct.

Q, Were you here this morning, Dr. Moffie, when £210] 
Dr. Barrett testified? A. Yes, I was.

Q. Do you recall the testimony of Dr. Barrett to the 
extent that definition of job content is to be considered in 
the selection of a test instrument ? A. Yes, I would agree 
with what he said.

Q. Do you recall the testimony that of Dr. Barrett to 
the extent that validation would be a consideration in the 
selection of a test instrument? A. Yes, I agree to that.

Q. You testified, I believe, that a professionally devel­

Dr. Dannie Moffie—for Defendant—Cross



178a

oped test should include— A. Should be reliable and it 
should be valid.

Q. Now, my question is this,—when you speak in terms 
of validity— A. That’s right.

Q. Would you give us your definition of it! A. 0. XL 
Well, it’s really not my definition. These are standards, 
established by the American Psychological Association, and 
they are standards that we go by in Psychology—that valid­
ity is really, does the test measure what it has been set up 
to measure? What are its aims, and we go by the fact that 
there are 3 types of validity: Content Validity, Criterion- 
related Validity, and Construct Validity. So to me, when 
we talk about Validity, it’s not just [2113 Job-Related 
Validity. It’s got to be any one of these three, you see.

Q. Has the Wonderlic been validated—how has it been 
validated? A. You mean, at Duke Power?

Q. Not for Duke Power, but has validation been con­
ducted on the Wonderlic? A. Yes, I would say there have 
been hundreds of studies that have been done in one way or 
another where the Wonderlic has been used, and reasonably 
high coefficients have been found—that is, validity coeffi­
cients. If we are thinking of Concurrent Validity or Pre­
dictive Validity in terms of Job-Relatedness, very definitely.

Q. I think you indicated that there is Content Validity? 
Is that correct? A. That’s correct.

Q. Were the Validation Studies done on the Wonderlic— 
Content Validity studies? A. In the original Wonderlic, 
Content Validity would be where the items were taken, let’s 
say, from the Otis Test, which is another intelligence test, 
and then when that test is related to other intelligence 
tests, and if there is a high correlation and a high relation­
ship, then it satisfies the Criterion. Content Validity—I 
would say that the Wonderlic has met that Criterion, but

Dr. Dannie Moffie—for Defendant—Cross



179a

it has also met the [2123 Criterion of Jobs-Relatedness. 
There have been many studies that have done that.

Q. My question is, do you know whether Content Valida­
tion studies have been done on the Wonderlie for Duke 
Power ? A. Well, you don’t normally do that. You see, 
you assume that this is already been done, when tests have 
been constructed. When you say, Content Validity, I say, 
no, this has not been done. Industry doesn’t normally do 
that. We are doing Job-Related Validities. For example, 
we have completed 1 study where we had taken oh, roughly 
100 to 200 people, in some categories well over 200 people 
at different job levels, where we have attempted to validate 
the Wonderlie, and we are finding, as was pointed out this 
morning by Dr. Barrett, that we are too broad. We are 
going to have to become more definitive and take some 
specific jobs and build up samples in order to carry out 
these validities to a greater extent, and to do it in more 
depth. W"e have got one study going right now that has 
120 people, and this, I ’m afraid is going to be too broad—

Q. You say—now, is this being conducted at the Duke 
Power facilities! A. That’s correct—throughout the facili­
ties.

Q. Now, the validation studies that are underway, does 
this include any category of jobs? Now, when you said the 
Dan River Steam Station— [2133 A. They would be in­
cluded in Job Level 1. You see, the Company has these jobs 
classified—Job Level 1, Job Level 2, Job Level 3. I don’t 
recall. I can’t answer that. I’d have to go back to the data 
to see if any of the people at Dan River fell into this—under 
this grouping.

Q. Dr. Moffie, you said you did undertake to visit Dan 
River Steam Station. Is that right! A. Yes.

Dr. Dannie Mo fie—for Defendant—Cross



180a

Q, Do yon recall whether or not they had persons working 
there in the Control Boom? A. Yes, a number of them.

Q. Do you know whether the study that you talk about 
would include employees in this category ? A. I’m sure 
it would, yes, because it was Job Level 2, and Job Level 2 
would include people in that category, yes.

Q. Do you recall during your visit, Dr. Moffie, whether 
they had employees working in Coal Handling at Dan 
River! A. Oh, yes, sure.

Q. Do you know whether validation studies are under­
way, now, including employees in this category? A. They 
would have to be because they would be in Job Level #1.

Q. Do you recall during your visit to Dan River [2143 
whether they had employees working in the Maintenance 
Department? A. Yes.

Q. Would employees in this category be in it? A. They 
would be in Job Level 2, I  am sure—Job Level 2.

Q. Do you know when the validation studies were started? 
A. Oh, yes, about 2 years ago. We have started—

Q. Was that before July 2nd, 1965? A. No, it was after 
that—2 years ago. That would be—that would be roughly 
in the early—in early ’66, I would say. I would have to go 
back to the date, but that’s about when it would be.

Q. Now, Dr. Moffie, you are aware that Duke Power at 
Dan River does require a person in a Laborer’s category 
who does not have a high school education or equivalency to 
successfully pass the Wonderlic and Mechanical ? Is that 
correct? A. That’s correct.

Q. Now, my question is, would you expect a test using 
such circumstances to be validated and we’re talking about 
Predictive Validation at this point, before it is used to 
effectuate these results. What I mean by “effectuate these 
results” is as used, in order to determine his [215] promot-

Dr. Dannie Moffie—for Defendant—Cross



181a

ability? A. Yes. At Dan River, the tests are really not 
used for Predictive Validity. They are used as a substitute 
or in lieu of a High School education. The aim is different. 
Now, to do a Predictive Validity study, as was pointed out 
this morning, generally, you have to have a fairly good 
sized group, and sometimes this is not possible, even at Dan 
River Steam Plant. The groups wouldn’t be large enough. 
Moreover, on a Predictive Validity study, it may take 2 or 
3 years to do this, but the tests at Dan River Steam Plant, 
as I understand it,—these are used in lieu of and a sub­
stitute for a High School education. They are not pre­
dicted. They are used as a substitute.

Q. Are you saying, Dr. Moffie, that the use of the test 
in the circumstances you’ve just described, as a substitute 
for a High School education, is not the same use to which 
such tests would be used when you are defining or giving 
your opinion as to a professionally developed test? A. Oh, 
no, I didn’t say that.

Q. I’m asking you if this is your testimony! A. My 
testimony is that at the Dan River Steam Plant, the two 
tests are used to determine whether or not a person has the 
intelligence level and the mechanical ability level that is 
characteristic of the High School graduate, and this is it. 
These are the purposes of the test there. Now, when [216] 
they function as a substitute or in lieu of a High School 
education, then, the assumption is that the test then,—the 
High School education is the kind of training and ability 
and judgment that a person needs to have, in order to do 
the jobs that we are talking about here'—the jobs in the 
Control and the Coal Handling and in the Maintenance. 
This would be my testimony.

Q. Do you know, Dr. Moffie, whether or not the same cut­
off scores that are used, under the circumstances they are

Dr. Dannie Mo fie—for Defendant—Cross



182a

used at Dan Eiver, with respect to Coal Handling and 
Laborers, is the same score that is used on this test with 
respect to applicants for employment? A. Yes, that is, 
for these level jobs that we’re talking about—not for the 
Laboring jobs. They are not used for the Laboring jobs. 
They are used for the jobs that we are talking about here 
in this hearing. Yes, they are.

Q. Just to understand your testimony, you are saying 
then, that a person who is applying for a job and would be 
subjected—who would be required to take the Wonderlic, 
would have to score? A. He would have to score 20 on the 
Wonderlic and he would have to score 38 or a Bennett “A A” 
or with the flexibility of 1 point either way,—-as wre pointed 
out, in order to come into the jobs, under discussion here 
at this hearing, yes.

[2173 Q. Now, are you familiar with the requirement 
that all employees except those who are applying for the 
categories of Laborers, must possess a High School edu­
cation at Dan River? A. Yes.

Q. Would the cut-off scores—scores for the Wonderlic, 
Dr. Moffie, would the result be to exclude more than 50 per 
cent of the Labor population? A. It comes to less than 
that, really. You see, if you think of the average High 
School graduate, the score is 21.9, which is roughly 2 
points above, and then if you take a look at the tables, 
it is going to be less than that, really. If you take a look— 
let’s see if I can find you the tables, right off, here. You 
go to Page 7—you go to Page 7, you will notice that for 
the High School, male, 4 years High School, a score of 
20 to 21, you would have roughly 42.8 per cent below that, 
you see, so that if you look at those figures, I think you 
would have to conclude that it is 40 percent. It will be

Dr. Dannie Moffie—for Defendant—Cross



183a

cutting roughly 40 per cent or less, really, so it is not 50, 
really. Have you got the page, there? It’s Page 7.

Q. Page 7. Now, would the test score set for the Me­
chanical “AA”—your cutting score for the Mechanical 
“AA”—would the results of that cutting score be to ex­
clude more than 50 per cent of the Labor population? 
[218] A. The score of 38 is exactly the 50th percentile, 
and it is for applicants for unskilled jobs. Now, this is 
the Laboring group. Now, if you think of the higher level 
up, or the jobs under consideration here at this hearing, 
you see, the score is even below. In other words, the 
group is below the type of score that would be normally 
assigned, let’s say, to the jobs under consideration; so 
that exactly how many points—it may be 2 or 3 points 
below, really, what the tables indicate here. In my opin­
ion, the two scores are rather typical of the average High 
School graduates, I think. I think this would answer 
your question.

Q. Now, my question, Dr. Moffie, is would the results of 
using both tests together result in excluding more than 50 
per cent of the population? A. Not, necessarily. In fact, 
it might improve, because you see, the Company has some 
flexibility in this in the sense that if a person makes a 
lower score—let’s say, 19 on the Wonderlic and let’s see, 
40 on the Bennett “AA”, this person has a chance of com­
ing in or vice versa, so that—so it could improve the selec­
tive aspects of this thing and make it even easier, really.

Q. Dr. Moffie, are you aware that Duke Power has a 
policy whereby employees in the Laborer’s category do 
not have a High School education or its equivalency, may 
take both the Wonderlic and the Mechanical “AA” for 
consideration [219] for promotion to Coal Handling? A. 
Yes, I am.

Dr. Dannie Moffie—for Defendant—Cross



184a

Q. Are you aware that Duke Power has a policy where­
by employees in the Laborer’s category do not have a 
High School education or its equivalency, may take both 
the Wonderlic and the Mechanical “AA” for consideration 
for promotion to Coal Handling? A. Yes, I am.

Q. Are you aware of the policy of the Company that 
employees in the category of Coal Handling who do not 
have a High School education or its equivalency, may take 
the Wonderlic and the Mechanical for promotion to other 
job categories? A. If they are already in it?

Q. No, my question is just a re-phrase of my earlier 
question,—that employees in Coal Handling who do not 
have a High School education or equivalency, could take 
the Mechanical and the Wonderlic to be considered for 
promotion to other jobs, other than Laborer’s category? 
A. Yes, I think this is the real point that’s under con­
sideration. Yes, in other words, that is the policy that if 
the person does not have a High School education, then 
he is permitted to take the 2 tests and if the 2 tests— 
if he passes these 2 tests successfully, then the Company 
considers passing these 2 tests successfully in lieu or as 
[220] a substitute of a High School education. Yes, I am 
aware of that.

Q. Would you have a opinion as to what factors that 
the tests would measure concerning the job requirements 
in Coal Handling? A. Yes, I very definitely do. The in­
telligence test, the Wonderlic Test, is a measure of one’s 
ability to think, to use good judgment, to solve problems. 
The Mechanical aptitude test is a measure of mechanical 
comprehension, and after studying the job duties and tak­
ing a look at those jobs up there, my feeling is that these 
kinds of abilities are required—the logging, the importance 
of all of the controls, and I may express an opinion: the

Dr. Dannie Moffie-—for Defendant—Cross



185a

tremendous amount of money that is involved in terms of 
the generators that they’ve got and the necessity in main­
taining these.

Q. My question was just the Coal Handling. A. There 
are lots of controls there.

Q. Would there be other criteria, Dr. Moffie, that could 
be used to determine those factors you’ve just described! 
A. Other tests, you mean?

Q. Not formalized tests but other considerations where­
by you can make this determination of a person’s ability ? 
A. Oh, sure. There would be many. For example, [221] 
there could be other tests that could be used, and as Psy­
chologists operate, we interview sometimes, too. At the 
same time, we are finding out more and more that the 
tests must be used to determine specific levels—that we 
cannot do it by interviews or by observation and so on. 
Now, for the aims that were set up here, I don’t see how 
one could interview and come up with a score on intelli­
gence and a score on mechanical aptitude. For this par­
ticular situation, let’s say, it would be difficult to do. Look­
ing at it as a Psychologist—

Q. You indicated that interviews would be another way 
of making this determination. Is that correct! A. You 
mean, as a substitute for a High School education?

Q. Right. A. It would have to be highly structured 
and it would have to be validated, too, you see, and one 
would have to establish reliability and validity; I’d hate 
to try it, but I say, maybe it could be done.

Q. Would you list for me, Dr. Moffie, 1 or 2 other selec­
tion processes, if you would, that would aid in determin­
ing whether a person has the ability to do the jobs in 
the Coal Handling Department? A. Yes, the High School 
equivalency exam. I think this has been my point—that

Dr. Dannie Moffie—for Defendant—Cross



186a

the GED, the General Education [2223 Development Test 
or the High School equivalency test is what one normally 
uses, and this is why I say that the Company has leaned 
over backwards by having a 12-minute test and roughly 
a 30-minute test in the Bennett Mechanical Comprehension, 
to see if they have got this kind of ability that makes them 
like an average High School person. Yes, very definitely, 
we have by State Law and through the State Board of 
Higher Education—through the Boards of Education, the 
High School equivalency test. This is the way it is nor­
mally done.

Q. When you say, “lean over backwards” in establishing 
cut-off scores, would this leaning over backwards, would 
it be—would it—my question is, would this leaning over 
backwards in—of the purport of the professional stand­
ards— A. I ’m not so sure I know your statement now. 
I think the Company—I think the Company has used ac­
ceptable scores that are by the tables and norms, typical 
of the High School graduate. By leaning over backwards, 
I mean that the Company has established the 2 tests— 
the one that takes 12 minutes and the other that takes 
30 minutes and if the person is able to pass these two 
tests, then he doesn’t have to go through all of the courses 
that he has to take to get ready to take the High School 
equivalency test. This is what I mean by leaning over 
backwards.

Q. There are several other questions. A. O.K.
[223] Q. Just one other question, Dr. Moffie. Would 

you consider previous experience on a lower job as a 
selection factor for promotion? A. Are you talking in 
general now—Industry-wide? I’m not sure I get the point 
of reference. If you ask me in terms of Industry-wise—

Q. To clarify the question, if you will, I think I asked

Dr. Dannie Moffie—for Defendant—Cross



187a

you to list for me some of those selection factors—selec­
tion criteria that you would use in lieu of, and I think 
you had indicated that High School was one, the inter­
view— Now', my question is, what previous experience 
would act as selection device—would previous experience 
on a low-rated job act as a selection device for promotion? 
A. I think you are leading me into the type of an answer 
that I don’t think I can give. When one considers pro­
motion and all these policies have been established within 
the Company, then all of these factors are important. For 
example, in selecting a salesman, if I can think of jobs 
in general, we always use previous experience as one of 
the factors and interview' test scores and so on; where a 
Company has already established, however, a High School 
degree or diploma as the admittance, then that becomes 
set. Then, you have to go by that. So, if you are asking 
me, can you accept previous experience to take the place 
of a High School diploma where a Company has already 
established the [224] High School Diploma, my ansvrer is, 
no, definitely not. You cannot do that. The only way you 
can establish a High School diploma is through a High 
School equivalency test. If you are saying a High School 
equivalent substitute—the Company’s substitute test, this 
is in lieu of or a substitute for a High School education—

Q. Just to put the question again, would this be a factor 
that could be considered—previous experience in determin­
ing whether to promote or not to promote? A. You mean, 
for these particular jobs in question!

Q. For these particular jobs in question. A. No, not 
when the Company has set a High School equivalency.

Q. I’m saying, aside from that, what the Company has 
done. A. That’s not the issue. The issue is, are the 2 
tests—are the 2 tests reasonable substitutes for a High 
School education? That’s the issue.

Dr, Dannie Mo fie—for Defendant—Cross



188a

Q. That’s not my question, though. A. I would say, 
no, if you are asking me, can I determine in an interview 
whether or not the person has the equivalent of a High 
School education. I cannot.

Q. That’s not my question. Let me clarify it, because 
I do want you to address yourself to it. I ’m not asking you 
to relate this to the requirements that the Company now 
has. [225] My question is this: given a situation where a 
person, if you will, in the Learner’s position in Coal Han­
dling—I am asking you, would liis experience in the posi­
tion of Helper be a selection factor—could it be a selection 
factor in determining whether to promote him to the next 
highest position? A. It would be a factor, but that in it­
self wouldn’t tell me whether he has the ability or the 
trainability for a job at a higher level. It merely means 
that he has been in this job, and he has had this experience, 
but this doesn’t say, does he have the ability or the train- 
ability for the higher level training jobs! No; I can an­
swer that question very emphatically, no. This experience 
would not tell you that.

Q. Would the tests by themselves tell you this? A. No, 
the tests could not. You would have-—

Q. Would the High School education by itself tell you 
this? A. A High School education would merely tell you 
that you have the necessary abilities as defined by a High 
School education, and if the Company feels that this is re­
quired in these jobs, that’s all it would tell you.

Mr. Belton: No further questions.
The Court: All right.
Mr. Ferguson: Nothing on Re-Direct. Does the 

[226] Court have any questions of this witness ?

Dr. Dannie Moffie—for Defendant-Cross



189a

The Court: No, you may come down, Dr. Moffie.

(Witness excused.)
I believe that Mr.—Do you have something Mr. 

Belton?
Mr. Belton: Yes, Your Honor. I’d like to call 

Dr. Barrett back for a few questions in rebuttal.
The Court: All right, Gentlemen, this is a case 

you assured me we could try in one day. I have this 
letter before me now. All right. You all have a copy 
of the letter. Mr. Chambers wrote it, and you didn’t 
take exception to it.

Mr. Ward: If Your Honor, please, if I had seen 
it, I would have taken exception to it.

Mr. Ferguson: That was based on his assumption, 
Your Honor.

The Court: Yes, but he put you on guard. You 
should have notified the Court that he was in error.

(Dr. Barrett resumed the stand—was previously 
sworn.)

Direct Examination by Mr. Belton:
Q. Dr. Barrett, there are several questions. Would the 

use of the 2 tests—the Wonderlic and the Mechanical— 
would the cut-off score now in use at Dan River residt in 
excluding more than 50 per cent of the [2273 population?

Mr. Ferguson: Objection.
The Court: Overruled.
The Witness: I think that the use of these 2 tests 

simultaneously is a considerably more stringent re­
quirement, —

The Court: Now, this is in the form of an opin­
ion?

Richard 8. Barrett—for Plaintiff—Resumed—Direct



190a

The Witness: Yes.
The Court: All right.
The Witness: Than the High School diploma it­

self for a couple of reasons. In the first place, ac­
cording to the norm tables on the test of Mechanical 
Comprehension, the average High School student 
scores 39. However, many, many people graduate 
from High School with ability that is less than aver­
age. In fact, about half of the people are below aver­
age, so it should be considerably easier to get a 
High School diploma in terms of the intellectual re­
quirements than it is to score 39 on the Bennett, be­
cause that means you have to be up well into the 
average group. People get out with a “D” average. 
The average that we have here that we’re talking 
about here is about a “C” average. Furthermore, 
if you use the 2 tests in conjunction, you wind up 
with this circumstance: the first test eliminates half 
of the people, but some of those people who passed 
that [228] will fail the other test. Therefore, you 
are eliminating noticeably more than half the peo­
ple. Again, this makes it even more stringent than 
being an average High School graduate. No; no, 
they have shaded this by about 2 points, which helps 
compensate for this point, but the issue is that this 
is really much more difficult than it is to have the 
High School diploma.

By Mr. Belton:
Q. Dr. Barrett, did you hear Dr. Moffie testify concern­

ing the use of the Wonderlic and the Mechanical at the 
Dan River as a selection device? A. Yes.

Richard 8. Barrett—for Plaintiff—Resumed—Direct



191a

Q. Did you also hear Dr. Moffie testify concerning the 
use of a High School education as a selection criteria for 
promotion? A. Yes.

Q. Now, in your opinion, would you think that the High 
School education would be the most appropriate require­
ment for promotion?

Mr. Ferguson: Objection.
The Court: I have to sustain that.
Mr. Belton: No further questions.
Mr. Ferguson: Just a couple of questions, if I 

may, please, sir.

Cross Examination by Mr. Ferguson:
Q. Dr. Barrett, I believe you [229] stated that you had 

never been up to Dan River? A. That’s right.
Q. You don’t know what the content of the jobs are other 

than what you read? A. Right.
Q. You state that in your Re-Direct Examination that 

the use of the test is more stringent. By that, you don’t 
mean to imply that Duke Power was unreasonable, do you?

Mr. Chambers: We object to that.
The Court: Overruled.

By Mr. Ferguson:

Q. I mean, you can’t testify to the reasonableness of what 
Duke Power Company is doing, can you? A. The rea­
sonableness that I am concerned with, has to do with the 
reasonableness of substituting one procedure for another. 
Now, if we take for granted, which I do not necessarily take 
for granted, that a High School diploma is an appropriate 
standard for people to meet, either for selection or promo­

Richard S. Barrett—-for Plaintiff—Resumed—Cross



192a

tion, then, I say, that the use of these 2 tests, — the Won- 
derlic Test and the Bennett Test as described in the testi­
mony here, is not a reasonable substitute in that it is no­
ticeably more difficult. It places higher intellectual demands 
on the people than the High School diploma. The High 
School diploma takes effort and time to get, and these are 
otherwise tests of basic ability.

[230] Q. Are you saying that a High School graduate 
has made a certain amount of achievement? A. Of course.

Q. And you are saying, too, that he has a certain mental 
ability level, too, are you not? A. Achievement is some­
thing we know because we measured it by test. We don’t 
know what his mental—mental ability is. We have an idea 
what it is, in order to pass through the High School course.

Q. What is more reasonable that taking of what 50 per 
cent of them make—with what the High School seniors 
average? A. If you accept all High School graduates with 
their diploma and accept only the top half of people of 
High School graduates because of their test score, you 
have a much more stringent way of selecting people. It is 
much more difficult.

Q. How is it more stringent ? A. Because, you say, any­
body who gets a High School diploma is qualified to go 
through the selection procedure from there on. Now, by 
using this test you are saying that only the half of the peo­
ple who have the capacities, of people wTho get High School 
diplomas, are able to go through the rest of the inception 
procedure and pass this hurdle and gone on.

[231] Q. You have stated, at best, this is a difficult prob­
lem, haven’t you? A. I don’t know what you mean, sir. 
What is the difficult problem!

Q. This testing presents a particularly tough problem! 
A. Why, yes, sure.

Richard S. Barrett—for Plaintiff—Resumed—Cross



193a

Q. It is just not an easy tiling to go out here and validate 
tests overnight and say, “This is the proper way to do it!” 
and “This is the improper way to do i t a n d ,  “This is more 
stringent;’5 and “This is less stringent;” and “This is un­
reasonable ;” and “That’s not reasonable.” I am driving at 
this, that back to your article, wherein you say that since 
each employee faces a situation that is in some respects 
unique, he and he alone is in a position to develop and 
validate tests and other selection procedures which will 
help him to hire the best available employees, regardless of 
race. Now, you made that statement. A. What’s your 
question!

Q. My question is, and I ’ve asked you on several occa­
sions, whether or not you can’t say this is unreasonable 
as far as Duke Power Company is concerned, can you! 
A. I think you, in your preamble to the question, went from 
the point that it is difficult on to further shading, which is 
not what I have said. To say that it is difficult is not say­
ing that it is impossible; to say that [232] it is difficult to 
produce good procedures is not saying that it is impossible 
to say that some procedures are not good, and this is what 
I am addressing myself to—that the sheer logic of these 
tables, and these are the tests, is that the use of the tests 
is a more stringent and noticeably more stringent way of 
selecting people than is the use of a High School diploma 
or its equivalent, since half the people who get a High 
School diploma would fail the test.

Q. All of them have the mental ability level, don’t they! 
Everybody has some mental ability level, whether they went 
to High School or college, or has a PhD in Psychology? 
A. 0. K.

Q. If the Power Company’s purpose is to measure a 
mental ability level— A. Yes?

Richard S. Barrett—for Plaintiff—Resumed—Cross



194a

Q. We can assume, can we not that the average High 
School graduate has the mental ability level that the 50th 
percentile has, can’t you! A. Well, you don’t assume that 
because there are some people who work very hard and get 
to be an average High School student, and they’re not so 
smart; and there are other people who are lazy; they come 
out average, too.

Q. Everybody has a mental— A. Everybody has some 
capacity for intellectual activity, yes.

[233] Q. And you have heard testimony that that is 
what Duke Power Company is attempting to measure—is 
mental ability level, haven’t you! A. Yes.

Mr. Ferguson: I think that’s all.
The Witness: 0. K.
The Court: All right.
(Witness excused.)
The Court: Anything further!
Mr. Belton: No.
The Court: All right, I think we will just remain 

for Mr. Thies’ examination. Do you have anything 
further!

Mr. Ferguson: Yes. I want to introduce 1 more 
bit of evidence here, but we need about a 5 or 10 
minute recess to talk to Mr. Thies, if that’s all right 
with the Court, since he just got here, and we haven’t 
had an opportunity to confer with him.

The Court: Gentlemen, I had relied on the fact 
that this was a day—now, we’ve had—passed a day 
and a half, and I have some matters—I know it’s an 
important case to ail of you—I have some matters 
that I must really move back to doing, so I  ask you

Richard S. Barrett—for Plaintiff—Resumed-—Cross



195a

to do it as quickly as you can, and you people be think­
ing about the questions you want. This shouldn’t take 
you so [2343 long to get this into the record.

Mr. Ferguson: 5 minutes would be fine with us.
The Court: You let me know when you’re ready 

to go. You all be thinking about the questions you 
want to ask, and let’s conclude this matter. All right 
this is an undeclared recess. Mr. Ferguson and Mr. 
Belton, you notify me when you are ready to go.

Mr. Ferguson: All right, sir.
(A brief recess was taken.)
The Court: All right, Mr. Ferguson, are you 

ready!
Mr. Ferguson: I ’m ready to tender Mr. Thies for 

Cross Examination.
The Court: Mr. Thies, would you come back to 

the stand, please, sir!
Clerk Vaughn: You are still under oath. This is 

a continued further Cross Examination.
The Court: Mr. Belton.

Further Cross Examination by Mr. Belton-.

Q. Mr. Thies, my question is, was there a policy at Dan 
River—at the Dan River Steam Station to hire only Negro 
employees for certain job categories prior to Julv 2nd, 
1965?

A. C. Thies—for Defen dent—Resumed—Cross

Mr. Ferguson: Objection.
The Court: Sustained. But you may put it in the 

record.
[2353 Mr. Ferguson: Answer the question.
The Witness: There was not a policy to hire only 

Negro employees for any classification at Dan River.



196a

A. C. Thies—for Defendent—Resumed—Cross 

By Mr. Belton:
Q. Did the Company, before July 2nd, 1965, hire only 

Negroes for the Laborer’s Classification?

Mr. Ferguson: Objection.
The Court: Your question is, before the July date!
Mr. Belton: That’s right.
The Court: Sustained. But you may answer, Mr. 

Thies, for the record.
The Witness: As far as the Power Station operat­

ing Steam Production Department is concerned, all 
of the persons who made application for the Laborer 
Classification were Negroes. However, there were 2 
white employees in the Laborer Classification at the 
time the Plant was being built, but those men moved 
on away with the Construction Department, when the 
Construction Department left the job site.

By Mr. Belton:
Q. Do you know, Mr. Thies, whether any Negro em­

ployees in the Laborer’s category requested promotion to 
other jobs prior to July 2nd, 1965?

Mr. Ferguson: Objection.
The Court: Sustained, but you may answer for 

the record.
The Witness: Yes, they did.

[236] By Mr. Belton:
Q. Do you have an approximation Mr. Thies of the num­

ber of Negroes who made requests for promotion prior to 
July 2nd? A. Yes, sir.

Q. Would you give that!



197a

Mr. Ferguson: Your Honor, I don’t necessarily 
object—want to object to every term, but I do want 
to have my objection recorded to this continuing 
line.

The Court: You had better object.
Mr. Ferguson: All right, I object.
The Court: All right. Sustained, but you may 

answer.
The Witness: To the best of my knowledge, there 

was one.
Mr. Belton: Was this request for promotion di­

rected to you?
Mr. Ferguson: Objection.
The Court: Sustained, but answer.
The Witness: It was directed to the Superintend­

ent of the Station. It was directed to the Station 
Superintendent. I am located in Charlotte. I set the 
policy. The Superintendent of the Station adminis­
ters locally. The request was directed to the Power 
Station Superintendent by one individual in the 
Laborer Classification.

[237] The Court: About what year was that, Mr. 
Thies ?

The Witness: I can’t testify from my own knowl­
edge, but to the best of our recollection, it was in 
1964, and there was no job opening at that time for 
the place that he wanted to work, and he was not 
refused a job. He was told, at the present time there 
was no job opening.

Mr. Belton: Do you know, Mr. Thies, whether you 
had Negro employees in the Laborer’s category with 
a High School education, who were in that category 
prior to July 2nd, 1965?

A. C. Tides—for Defendant—Resumed—Cross



198a

The Witness: Yes.
Mr. Ferguson: Objection.
The Court: Sustained, and the answer is, “Yes.”
The Witness: I am assuming, Your Honor, this is 

automatic each time?
The Court: Yes, but if you will just give me time 

to make the entry there. That’s all right. Go ahead.
Mr. Belton: Do you know whether you had white 

employees in jobs other than Laborers, without a 
High School education, prior to July 2nd, 1965?

Mr. Ferguson: Objection.
The Court: Sustained. You may answer.
The Witness: Yes.
[2383 Mr. Belton: Was it the policy, Mr. Thies, 

of the Company prior to July 2nd, 1965, to employ 
persons only in those categories for which they re­
quested?

Mr. Ferguson: Objection.
The Court: Sustained. You may answer for the 

record.
The Witness: The general policy was, “Yes.” To 

employ persons in the kinds of jobs that they ex­
pressed an interest in, yes.

Mr. Belton: Do you know what—do you know if 
the policy of the Company of July, 1965, was to pro­
mote employees only to those jobs for which they 
requested?

Mr. Ferguson: Objection.
The Court: Sustained. You may answer for the 

record.
The Witness: No. We promote employees that 

we think—that we think can do the next higher job, 
and if they are in a department and in line of normal

A. C. Thies—for Defen dent—Resumed—Cross



199a

progression or promotion, then they are all inter­
ested in this promotion as it comes up, and we select 
the senior man, if qualified, and offer him the job. 
He doesn’t have to request it within a departmental 
promotion set-up.

Mr. Belton: Do you recall, Mr. Thies, whether 
there were occasions prior to July 2nd, 1965, in 
which £2393 the Company of its own initiative re­
quested an employee to move up to a higher paying 
job to fill a vacancy?

Mr. Ferguson: Objection.
The Court: Sustained. Answer for the record, 

please.
The Witness: Yes, I am sure that there have been. 

I don’t know the specific cases, but I am sure that 
people have been asked to move up to higher jobs, 
yes.

Mr. Belton: One or two other questions, Mr. Thies. 
Prior to July 2nd, 1965, did you have employees who 
were in Coal Handling without a High School edu­
cation moved to—well, were promoted to jobs in the 
Maintenance Department ?

Mr. Ferguson: Objection.
The Court: Sustained. You may answer.
The Witness: We did not, during the last 10 or 

12 years—during the time that the policy requiring 
a High School education for this move, has been in 
effect. Prior to the time of that policy going into 
effect on our Power System, then, we did have em­
ployees who did not have a High School education, 
who moved from Coal Handling into the Plant 
Operations, but when that policy was instituted

A. C. Tliies—for Defendant—Resumed—Cross



200a

System-wide, the practice was stopped. In fact, 
that’s what made me select these 2 tests—to offer 
them an opportunity to be qualified, [240] because 
the white employees that happened to be in Coal 
Handling at the time, were requesting some way that 
they could get from Coal Handling into the Plant 
jobs, and they were blocked by this policy, which has 
been in effect for a number of years.

Mr. Belton: Do I understand your answer, Mr. 
Thies? Are you testifying that after the Company 
initiated the High School requirement, that no em­
ployee in Coal Handling was allowed to move from 
Coal Handling to other jobs without this?

The Witness: That’s correct.
Mr. Belton: Now, the High School—the provision 

went into effect around 1955?
The Witness: Somewhere along in there.
Mr. Belton: Prior to July 2nd, 1965, did you pro­

mote employees in Coal Handling—allowed employ­
ees in Coal Handling, who did not have the High 
School education or the equivalency ?

Mr. Ferguson: Objection.
The Court: Sustained. You may answer.
The Witness: They were promoted within the 

Coal Handling Operation, but not out of Coal Han­
dling into any other department. Once a man is in 
the Coal Handling Department and in a line of pro­
gression, then he will move as far up in that depart­
ment as his qualifications [241] and job performance 
will let him move. He won’t be blocked, is what I am 
saying, and, once he gets in that department.

Mr. Belton: Weren’t these employees in Coal 
Handling during the period we’re talking about, white 
employees f

A. C. Tides—for Defendant—Resumed—Cross



201a

Mr. Ferguson: Objection.
The Court: Sustained. Answer for the record.
The Witness: Prior to July 2nd, 1965!
Mr. Belton: This is correct.
The Witness: Yes.
Mr. Belton: One other question,—Mr. Thies, prior 

to July 2nd, 1964, was there a custom at the Dan 
River Steam Station whereby certain facilities,— 
toilets, water fountains, were limited to Negroes!

Mr. Ferguson: Objection.
The Court: Hasn’t that been eliminated from this 

case! You all stipulated.
Mr. Ferguson: By stipulation of Counsel—
Mr. Belton: Your Honor, we realize that. This is 

our last question, but even though we have stipu­
lated—

The Court: 0. K. Go ahead. I will let you answer 
for the record. That just seems to me a bit—but the 
question—go ahead with the question.

The Witness: That was prior to July 1st, 1964!
[242] Mr. Belton: That’s correct, sir.
Mr. Ferguson: Objection.
The Court: Sustain the objection, but you may 

answer.
The Witness: Sometime in the early ’60s, we elimi­

nated separate facilities at our stations, as far as 
policy was concerned; that there was no one to oc­
cupy different facilities because of their race, creed, 
national origin or what have you. We did not force 
our employees to bodily pick up their belongings and 
move their lockers to accomplish this. We said that 
anyone was free to choose any locker they wanted. 
The individuals in question at Dan River were in one

A. C. Thies—for Defendant—Resumed—Cross



202a

locker room, and they remained there, but there was 
no policy that said they had to stay there, after some­
time in the early ’60s.

Mr. Belton: This is my last question. My question 
was not in terms of policy, but was it a custom, as 
opposed to a fixed policy?

Mr. Ferguson: Objection.
The Court: Sustained. You may answer.
The Witness: Well, I thought my answer clarified 

that, but they did remain in one location, so if you 
call that a custom, then they were in one location, yes.

Mr. Belton: No further questions.
[243] Mr. Ferguson: That’s all. I have no ques­

tions, Your Honor.
The Court: All right. Anything further, Gentle­

men? Anything further for the Plaintiff!
Mr. Belton: No, Your Honor.
The Court: From the Defendant!
Mr. Ferguson: Yes, Your Honor, I want to have 

this document marked for identification. It’s Page 4. 
I t’s that Page 4 of the Digest of Legal Interpretation 
adopted by the Commission. It is a Digest of Legal 
Interpretations issued or adopted by the Commis­
sion, July 2nd, 1965 to October the 8th, 1965—Page 4 
of that document, waiver of identification, and au­
thentication of which has been waived by the Plain­
tiffs in the Final Pre-Trial Order, and the document 
speaks for itself. I am averting particularly to their 
general Counsel opinion letter, which states that “the 
Differential - - not based on one of the exprohibitive 
grounds—that is, sex, race, and so forth, and further, 
that discrimination based on educational qualifica­
tions does not violate Title 7, Opinion Letter of Octo­
ber, ’65.

A. C. Thies—for Defendant—Resumed—Cross



203a

Mr. Belton: We object, Your Honor, on the 
grounds that that is a legal opinion.

The Court: What Exhibit #  is that?
[244] Clerk Vaughn: 5.
The Court: Let the record show that the Court 

receives into the evidence Defendant’s Exhibit 5— 
that the Plaintiffs object to the receipt into the evi­
dence of this Exhibit and except to the rule of the 
Court.

(Defendant’s Exhibit #5  was marked for identi­
fication and received into evidence.)

Mr. Ferguson: Your Honor, I don’t know that I 
have offered or you have received into evidence all 
of my Exhibits, but I now offer into evidence, Ex­
hibits 1 through 5, just for the record.

The Court: Now, we are talking about Exhibits— 
Defendant’s Exhibits 1, 2, 3, and 4. Are there objec­
tions that you want to register, Mr. Belton, to the 
Exhibits?

Mr. Belton: No objection, Your Honor.
The Court: All right. Let the record show that 

Defendant’s Exhibits 1, 2, 3, and 4 are received into 
the evidence.

(Defendant’s Exhibits #1, #2, #3, and # 4  
were received into the evidence and #1  was 
marked for identification.)

Mr. Ferguson: You have already received #5, I 
take it?

The Court: Yes, we just made an entry.
[245] Mr. Ferguson: All right, sir. The Defen­

dant has nothing further. I would like to be heard

A. C. Tides—for Defendant—Resumed—Cross



204a

Motion to Dismiss

on the motion, if I could presume on the Court’s good 
nature for 5 minutes. I assume you would know what 
the motion would be. We move—

The Court: All right.
Mr. Ferguson: We move that the Court dismiss 

this action.
The Court: Let me state this to you before you get 

to this. I am not insisting that you all present oral 
argument. I  am just before dictating a memorandum 
that you will give me proposed findings of fact and 
conclusions of law, providing that you may present 
briefs and give you ample time, and then, to make 
inquiry as to whether you wanted oral argument or 
not, and I am not trying to cut you off, but should 
you want later, oral argument, it can be set forth at— 
let’s see what the Plaintiff says about it. Are you all 
going to want oral argument! If not, maybe you 
would want it later?

Mr. Ferguson: I don’t see how Your Honor today 
can really rule on my motion to dismiss, because 
really, the record hasn’t jelled to the extent that you 
could do so, and I realize that you would have to 
hold your ruling in abeyance.

[2461 The Court: You could present that in your 
brief or however you wished,

Mr. Ferguson: Yes, sir, I would like the opportu­
nity to do that and he will present it by a brief or 
oral argument as the Court deems fit to have—

The Court: All right.
Mr. Ferguson: I do want the motion made for the 

record.
Mr. Belton: On the question of oral argument, we 

would like to state at this time, that we would like



205a

Motion to Dismiss

to take tlie advantage of the opportunity, if oral 
argument is presented. However, it might be that 
after we get into the job of briefing and writing, we 
might—

The Court: All right, state your motion for the 
record, then, Mr. Ferguson.

Mr. Ferguson: We move to dismiss, based on the 
grounds that the Plaintiff has failed to shoulder the 
burden of proof with respect to showing the inten­
tion of discrimination or the intentional aspects of 
the discriminatory acts as alleged in the complaint.

The Court: Let the record show that the Court 
defers its ruling on the motion of the Defendant un­
til after proposed findings of fact and conclusions of 
law have been presented in brief to the Court.

(E nd of Case)



206a

I n  t h e

UNITED STATES COURT OF APPEALS 
F oe the F ourth Circuit 

No. 13,013

Opinion ©f the United States Court of Appeals

W illie S. Gtuggs, et al.,
Plaintiff-Appellant,

versus

D uke P ower Company,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

(January 9, 1970)
Before

S obeloff, B oreman, and B ryan,
Circuit Judges.

B oreman, Circuit Judge:
Present Negro employees of the Dan River Steam Sta­

tion of Duke Power Company in Draper, North Carolina, 
in a class action with the class defined as themselves and 
those Negro employees who subsequently may be employed 
at the Dan River Steam Station and all Negroes who may 
hereafter seek employment at the station, appeal from a 
judgment of the district court dismissing their complaint 
brought under Title VII of the Civil Rights Act of 1964.



207a

(Duke Power Company will be referred to sometimes as 
Duke or the company.) The plaintiffs challenge the validity 
of the company’s promotion and transfer system, which 
involves the use of general intelligence and mechanical 
ability tests, alleging racial discrimination and denial of 
equal opportunity to advance into jobs classified above the 
menial laborer category.

Duke is a corporation engaged in the generation, trans­
mission and distribution of electric power to the general 
public in North Carolina and South Carolina. At the time 
this action was instituted, Duke had 95 employees at its 
Dan River Station, fourteen of whom were Negroes, thir­
teen of whom are plaintiffs in this action. The work force 
at Dan River is divided for operational purposes into five 
main departments: (1) Operations; (2) Maintenance; (3) 
Laboratory and Test; (4) Coal Handling; and (5) Labor. 
The positions of Watchman, Clerk and Storekeeper are in 
a miscellaneous category.

The employees in the Operations Department are re­
sponsible for the operation of the station’s generating 
equipment, such as boilers, turbines, auxiliary and control 
equipment, and the electrical substation. They handle also 
interconnections between the station, the company’s power 
system, and the systems of other power companies.

The Maintenance Department is responsible for mainte­
nance of all the mechanical and electrical equipment and 
machinery in the plant.

Technicians working in the Laboratory Department 
analyze water to determine its fitness for use in the boilers 
and run analyses of coal samples to ascertain the quality 
of the coal for use as fuel in the power station. Test De­
partment personnel are responsible for the performance 
of the station by maintaining the accuracy of instruments, 
gauges and control devices.

Opinion of the United States Court of Appeals



208a

Employees in the Coal Handling Department unload, 
weigh, sample, crush, and transport coal received from the 
mines. In so doing, they operate diesel and electrical 
equipment, bulldozers, conveyor belts, crushers and other 
heavy equipment items. They must be able to read and 
understand manuals relating to such machinery and equip­
ment.

The Labor Department provides service to all other de­
partments and is responsible generally for the janitorial 
services in the plant. Its employees mix mortar, collect 
garbage, help construct forms, clean bolts, and provide 
the necessary labor involved in performing other miscel­
laneous jobs. The Labor Department is the lowest paid, 
with a maximum wage of $1,565 per hour, which is less 
than the minimum of $1,705 per hour paid to any other 
employee in the plant. Maximum wages paid to employees 
in other departments range from $3.18 per hour to $3.65 
per hour.

Within each department specialized job classifications 
exist, and these classifications constitute a line of progres­
sion for purposes of employee advancement. Promotions 
within departments are made at Dan River as vacancies 
occur. Normally, the senior man in the classification di­
rectly below that in which the vacancy occurs will be 
promoted, if qualified to perform the job. Training for 
promotions within departments is not formalized, as em­
ployees are given on-the-job training within departments. 
In transferring from one department to another, an em­
ployee usually goes in at the entry level; however, at Dan 
River an employee is potentially able to move into another 
department above the entry level, depending on his quali­
fications.

In 1955, approximately nine years prior to the passage of 
the Civil Rights Act of 1964 and some eleven years prior

Opinion of the United States Court of Appeals



209a

to the institution of this action, Duke Power initiated a 
new policy as to hiring and advancement; a high school 
education or its equivalent was thenceforth required for 
all new employees, except as to those in the Labor Depart­
ment. The new policy also required an incumbent employee 
to have a high school education or its equivalent before 
he could be considered for advancement from the Labor 
Department or the position of Watchman into Coal Han­
dling, Operations or Maintenance or for advancement from 
Coal Handling into Operations or Maintenance. The com­
pany claims that this policy was instituted because it real­
ized that its business was becoming more complex and that 
there were some employees who were unable to adjust to 
the increasingly more complicated work requirements and 
thus unable to advance through the companys lines of 
progression.

The company subsequently amended its promotion and 
transfer requirements by providing that an employee who 
was on the company payroll prior to September 1, 1965, 
and who did not have a high school education or its equiva­
lent, could become eligible for transfer or promotion from 
Coal Handling, Watchman or Labor positions into Operat­
ing, Maintenance or other higher classified jobs by taking 
and passing two tests, known as the Wonderlic general 
intelligence test and the Bennett Mechanical AA general 
mechanical test, with scores equivalent to those achieved 
by an average high school graduate. The company admits 
that this change was made in response to requests from 
employees in Coal Handling for a means of escape from 
that department but the same opportunity was also pro­
vided for employees in the Labor Department.

Until 1966, no Negro had ever held a position at Dan 
River in any department other than the Labor Depart­
ment. On August 6, 1966, more than a year after July 2,

Opinion of the United States Court of Appeals



210a

1965, the effective date of the Civil Rights Act of 1964, 
the first Neg’ro was promoted out of the Labor Department, 
as Jesse C. Martin (who had a high school education) 
was advanced into Coal Handling. He was subsequently 
promoted to utility operator on March 18, 1968. H. E. 
Martin, a Negro with a high school education, was pro­
moted to Watchman on March 19, 1968, and subsequently 
to the position of Learner in Coal Handling. Another 
Negro, R. A. Jumper, was promoted to Watchman and 
then to Trainee for Test Assistant on May 7, 1968. These 
three were the only Negroes employed at Dan River who 
had high school educations. Recently, another Negro, 
Willie Boyd, completed a course which is recognized and 
accepted as equivalent to a high school education; thereby 
he became eligible for advancement under current com­
pany policies. Insufficient time has elapsed in which to 
determine whether or not Boyd will be advanced without 
discrimination, but it does appear that the company is not 
now discriminating in its promotion and transfer policies 
against Negro employees who have a high school education 
or its equivalent.

The plaintiff Negro employees admit that at the present 
time Duke has apparently abandoned its policy of restrict­
ing all Negroes to the Labor Department; but the plain­
tiffs complain that the educational and testing require­
ments preserve and continue the effects of Duke’s past 
racial discrimination, thereby violating the Civil Rights 
Act of 1964.* 1

1 Pertinent sections of Title VII of the Civil Rights Act of 1964 
are:

Section 703(a), 42 U.S.C. § 2000e-2(a) :
It shall be an unlawful employment practice for an em­

ployer—
(1) to fail or refuse to hire or to discharge any individual, 

or otherwise to discriminate against any individual with respect

Opinion of the United States Court of Appeals



211a

The district court found that prior to July 2, 1965, the 
effective date of the Civil Rights Act of 1964, Negroes were 
relegated to the Labor Department and deprived of access 
to other departments by reason of racial discrimination 
practiced by the company. This finding is fully supported 
by the evidence.

Opinion of the United States Court of Appeals

to his compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, or 
national origin; or

(2) to limit, segregate, or classify his employees in any way 
which would deprive or tend to deprive any individual of em­
ployment opportunities or otherwise adversely affect his status 
as an employee, because of such individual’s race, color, religion, 
sex, or national origin.
Section 703(h), 42 U.S.C. § 2000e-2(h) :

Notwithstanding any other provision of this subchapter, it 
shall not be an unlawful employment practice for an employer 
to apply different standards of compensation, or different terms, 
conditions, or privileges of employment pursuant to a bona fide 
seniority or merit system, or a system which measures earnings 
by quantity or quality of production or to employees who work 
in different locations, provided that such differences are not the 
result of an intention to discriminate because of race, color, 
religion, sex, or national origin, nor shall it be an unlawful em­
ployment practice for an employer to give and act upon the 
results of any professionally developed ability test provided 
that such test, its administration or action upon the results is 
not designed, intended or used to discriminate because of race, 
color, religion, sex or national origin.
Section 706(g), 42 U.S.C. § 2000e-5(g):

If the court finds that the respondent has intentionally en­
gaged in or is intentionally engaging in an unlawful employ­
ment practice charged in the complaint, the court may enjoin 
the respondent from engaging in such unlawful employment 
practice, and order such affirmative action as may be appropri­
ate, which may include reinstatement or hiring of employees, 
with or without back pay (payable by the employer, employ­
ment agency, or labor organization, as the case may be, re­
sponsible for the unlawful employment practice.)



212a

However, the district court also held that Title VII of 
the Civil Rights Act of 1964 does not encompass the present 
and continuing effects of past discrimination. This hold­
ing is in conflict with other persuasive authority and is 
disapproved. While it is true that the Act was intended 
to have prospective application only, relief may he granted 
to remedy present and continuing effects of past discrimi­
nation. Local 53 v. Vogler, 407 F.2d 1047, 1052 (5 Cir. 
1969); United States v. Local 189, 282 F.Supp. 39, 44 (E.D.
La. 1968), aff’d, No. 25956, ----- F.2d.------  (5 Cir. 1969) ;
Quarles v. Philip Morris, Inc., 279 F. Supp. 505, 516 (E.D. 
Va. 1968). See, United States v. Hayes International Cor­
poration, No. 26809,----- F .2d------  (5 Cir. 1969), 38 L.W.
2149 (Sept. 16, 1969). In Quarles, it was directly held that 
present and continuing consequences of past discrimination 
are covered by the Act, the court stating, “It is also ap­
parent that Congress did not intend to freeze an entire 
generation of Negro employees into discriminatory pat­
terns that existed before the act.” Quarles v. Philip Morris, 
Inc., supra at 516. The Quarles decision was expressly 
approved and followed in United States v. Local 189, supra, 
as the district court, with subsequent approval of the Fifth 
Circuit Court of Appeals, struck down a seniority system 
which had the effect of perpetuating discrimination. “. . . 
[Wjhere, as here, ‘job seniority’ operates to continue the 
effects of past discrimination, it must be replaced * * 
United States v. Local 189, supra at 45. In Local 53 v. 
Vogler, 407 F.2d 1047, 1052 (5 Cir. 1969), the court said: 
“Where necessary to ensure compliance with the Act, the 
District Court was fully empowered to eliminate the 
present effects of past discrimination.”

Those six Negro employee-plaintiffs without a high 
school education or its equivalent who were discrimina­

Opinion of the United States Court of Appeals



213a

torily hired only into the Labor Department prior to Duke’s 
institution of the educational requirement in 1955 were 
simply locked into the Labor Department by the adoption 
of this requirement. Yet, on the other hand, many white 
employees who likewise did not have a high school educa­
tion or its equivalent had already been hired into the better 
departments and were free to remain there and be pro­
moted or transferred into better, higher paying positions. 
Thus, it is clear that those six plaintiff Negro employees 
without a high school education or its equivalent who were 
hired prior to the adoption of the educational requirement 
are entitled to relief; the educational requirement shall 
not be invoked as an absolute bar to advancement, but 
must be waived as to these plaintiffs and they shall be 
entitled to nondiscriminatory consideration for advance­
ment to other departments if and when job openings occur.

Likewise, as to these same six Negro plaintiffs, the test­
ing requirements established in 1965 are also discrimina­
tory. The testing requirements, as will be fully explained 
later in this opinion, were established as an approximate 
equivalent to a high school education for advancement 
purposes. Since the adoption of the high school education 
requirement was discriminatory as to these six Negro em­
ployees and the tests are used as an approximate equiva­
lent for advancement purposes, it must follow that the 
testing requirements were likewise discriminatory as to 
them. These six plaintiffs had to pass these tests in order 
to escape from the Labor Department while their white 
counterparts, many of whom also did not have a high school 
education, had been hired into departments other than the 
Labor Department and therefore were not required to take 
the tests. Therefore, as to these six plaintiffs, the testing 
requirements must also be waived and shall not be invoked 
as a bar to their advancement.

Opinion of the United States Court of Appeals



214a

Next, we consider the rights of the second group of plain­
tiffs, those four Negro employees without a high school 
education or its equivalent who were hired into the Labor 
Department after the institution of the educational require­
ment. We find that they are not entitled to relief for the 
reasons to be hereinafter assigned. In determining the 
rights of this second group of plaintiffs, it is necessary to 
analyze and determine the validity of Duke’s educational 
and testing requirements under the Civil Rights Act of 
1964. We have found no cases directly in point. The Negro 
employee-plaintiffs contend that the requirements continue 
the effects of past discrimination and, therefore, must be 
struck down as invalid under the Act. We find ourselves 
unable to agree with that contention.

Plaintiffs claim that Duke’s educational and testing re­
quirements are discriminatory and invalid because: (1) 
there is no evidence showing a business need for the re­
quirements ; (2) Duke Power did not conduct any studies 
to discern whether or not such requirements were related 
to an employee’s ability to perform his duties; and (3) the 
tests were not job-related, and § 703(h) of the Civil Rights 
Act of 1964, 42 U.S.C. 2000e-2(h), requires tests to be job- 
related in order to be valid.

The company admits that it initiated the requirements 
without making formal studies as to the relationship or 
bearing such requirements would have upon its employees’ 
ability to perform their duties. But, Duke claims that the 
policy was instituted because its business was becoming 
more complex, it had employees who were unable to grasp 
situations, to read, to reason, and who did not have an 
intelligence level high enough to enable them to progress 
upvrard through the company’s line of advancement.

Opinion of the United States Court of Appeals



215a

Pointing- out that it uses an intraeompany promotion 
system to train its own employees for supervisory posi­
tions inside the company rather than hire supervisory per­
sonnel from outside, Duke claims that it initiated the high 
school education requirement, at least partially, so that it 
would have some reasonable assurance that its employees 
could advance into supervisory positions; further, that 
its educational and testing requirements are valid because 
they have a legitimate business purpose, and because the 
tests are professionally developed ability tests, as sanc­
tioned under § 703(h) of the Act, 42 U.S.C'. 2000e-2(h).

In examining the validity of the educational and testing 
requirements, we must determine whether Duke had a valid 
business purpose in adopting such requirements or whether 
the company merely used the requirements to discriminate. 
The plaintiffs claim that centuries of cultural and educa­
tional discrimination have placed Negroes at a disad­
vantage in competing with whites for positions which in­
volve an educational or testing standard and that Duke 
merely seized upon such requirements as a means of dis­
crimination without a business purpose in mind. Plain­
tiffs have admitted in their brief that an employer is 
permitted to establish educational or testing requirements 
which fulfill genuine business needs and that such require­
ments are valid under the Act. In support of this state­
ment, we quote verbatim from appellants’ brief:

“An employer is, of course, permitted to set educa­
tional or test requirements that fulfill genuine business 
needs. For example, an employer may require a fair 
typing test of applicants for secretarial positions. It 
may well be that, because of long-standing inequality 
in educational and cultural opportunities available to 
Negroes, proportionately fewer Negro applicants than

Opinion of the United States Court of Appeals



216a

white can pass such a test. But where business need 
can be shown, as it can where typing ability is neces­
sary for performance as a secretary, the fact that the 
test tends to exclude more Negroes than whites does 

' not make it discriminatory. We do not wish even to 
suggest that employers are required by law to com­
pensate for centuries of discrimination by hiring 
Negro applicants who are incapable of doing the job. 
But when a test or educational requirement is not 
shown to be based on business need, as in the instant 
case, it measures not ability to do a job but rather the 
extent to which persons have acquired educational and 
cultural background which has been denied to Negroes.” 
(Emphasis added.)

Thus, plaintiffs would apparently concede that if Duke 
adopted its educational and testing requirements with a 
genuine business purpose and without intent to discriminate 
against future Negro employees, such requirements would 
not be invalidated merely because of Negroes’ cultural and 
educational disadvantges due to past discrimination. Al­
though earlier in this opinion we upheld the district court’s 
finding that the company had engaged in discriminatory 
hiring practices prior to the Act and we concluded also 
that the educational and testing requirements adopted by 
the company continued the effects of this prior discrimina­
tion as to employees who had been hired prior to the adop­
tion of educational requirement, it seems reasonably clear 
that this requirement did have a genuine business purpose 
and that the company initiated the policy with no intention 
to discriminate against Negro employees who might be 
hired after the adoption of the educational requirement.

Opinion of the United States Court of Appeals



217a

This conclusion would appear to be not merely supported, 
but actually compelled, by the following facts:

(1) Duke had long ago established the practice of train­
ing its own employees for supervisory positions rather 
than bring in supervisory personnel from outside.2

(2) Duke instituted its educational requirement in 1955, 
nine years prior to the passage of the Civil Rights Act of 
1964 and well before the civil rights movement had 
gathered enough momentum to indicate the inevitability 
of the passage of such an act.3

(3) Duke has, by plaintiffs’ own admission, discontinued 
the use of discriminatory tactics in employment, promo­
tions and transfers.4

(4) The company’s expert witness, Dr. Moffie, testified 
that he had observed the Dan River operation; had ob­
served personnel in the performance of jobs; had studied 
the written summary of job duties; had spent several days 
with company representatives discussing job content; and 
he concluded that a high school education would provide 
the training, ability and judgment to perform tasks in the 
higher skilled classifications. This testimony is uncon­
troverted in the record.

Opinion of the United States Court of Appeals

2 The company had an obvious business motive and objective in 
establishing the high school requirement, that is, hiring only per­
sonnel who had a reasonable expectation of ascending promotional 
ladders into supervisory positions thereby eliminating road blocks 
which would interfere with movement to higher classifications and 
tend to decrease efficiency and morale throughout the entire work 
force.

3 It is highly improbable that the company seized upon such a 
requirement merely for the purpose of continuing discrimination.

4 This tends to demonstrate the company’s good faith.



218a

(5) When the educational requirement was adopted it 
adversely affected the advancement and transfer of -white 
employees who were Watchmen or were in the Coal Han­
dling Department as well as Negro employees in the Labor 
Department.* 6

(6) Duke has a policy of paying the major portion of the 
expenses incurred by an employee who secures a high school 
education or its equivalent. In fact, one of the plaintiffs 
recently obtained such equivalent, the company paying 
seventy-five percent of the cost.6

Next, we consider the testing requirements to determine 
their validity and we conclude that they, too, are valid 
under § 703(h) of the Civil Rights Act of 1964, 42 U.S.C. 
§ 20Q0e-2(h). In pertinent part, § 703(h) reads: “ * * * nor 
shall it be an unlawful employment practice for an em­
ployer to give and to act upon the results of any profes­
sionally developed ability test provided that such test, its 
administration or action upon the results is not designed, 
intended or used to discriminate because of race, color, 
religion, sex, or national origin.”

There is no evidence in the record that there is any dis­
crimination in the administration and scoring of the tests. 
Nor is there any evidence that the tests are not profes­
sionally developed. The company’s expert, Dr. D. J. Moffie, 
testified that in his opinion the tests -were professionally 
developed and are reliable and valid; that they are “low

Opinion of the United States Court of Appeals

6 It is unreasonable to charge the company with prospective dis­
crimination by instituting an educational requirement which was 
to be applied prospectively to white, as well as Negro, employees.

6 It would be illogical to conclude that Duke established the 
educational requirement for purposes of discrimination when it was 
willing to pay for the education of incumbent Negro employees 
who could thus become eligible for advancement.



219a

level” tests and are given at Dan River by one who has had 
special training in the administration of such tests. The 
minimum acceptable scores used by the company are ap­
proximately those achieved by the average high school 
graduate, which fact indicates that the tests are accepted 
as a substitute for a high school education. The evidence 
disclosed that the minimum acceptable scores used by Duke 
are Wonderlic-20, and Bennett Mechanical-39; the score of 
the average high school graduate, i.e., the fiftieth percentile, 
is 21.9 for the Wonderlic, nearly two points higher than the 
score accepted by Duke, and 39 for the Bennett Mechanical.

The plaintiffs claim that tests must be job-related in order 
to be valid under § 703(h). The Equal Employment Op­
portunity Commission which is charged with administering 
and implementing the Act supports plaintiffs’ view. The 
EEOC has ruled that tests are unlawful “ * * * in the ab­
sence of evidence that the tests are properly related to 
specific jobs and have been properly validated * * Deci­
sion of EEOC, December 2, 1966, reprinted in CCH, Em­
ployment Practices Guide, !f 17,304.53. The EEOC’s 
position has been supported by two federal district courts. 
United States v. H. K. Porter, 59 L.C. If 9204 (M.D. Ala. 
1969); Dobbins v. Local 212, IBEW, 292 F. Supp. 413 (S.D. 
Ohio 1968). In Dobbins the court invalidated a test which 
was being given for membership in a labor union or in 
connection with a referral system because it was not ade­
quately related to job performance needs. However, in 
that case it was clear that the testing requirement was not 
one of business necessity and the reasons for adopting 
such a requirement compellingly indicated that the purpose 
of such requirement was discrimination, which is not true 
in the present case.

The court below held that the tests given by Duke were 
not job-related, but then refused to give weight to the

Opinion of the United States Court of Appeals



220a

EEOC ruling that tests must be job-related in order to be 
valid under § 703(b). The plaintiffs assert that such re­
fusal was error. It has been held that the interpretation 
given a statute by an agency which was established to ad­
minister the statute is entitled to great weight. Udall v. 
Tollman, 380 U.S. 1, 15 (1965). This principle has been ap­
plied to EEOC interpretations given the Civil Rights Act 
of 1964. Weeks v. Southern Bell Telephone & Telegraph 
Co., 408 F.2d 228, 235 (5 Cir. 1969) ; Cox v. United States 
Gypsum Co., 284 F. Supp. 74, 78 (N.D. Ind. 1968); Inter­
national Chemical Workers Union v. Planters Manufactur­
ing Co., 259 F. Supp. 365, 366 (N.D. Miss. 1966). Plaintiffs 
cite these cases last mentioned above to support their 
argument that this court should adopt the EEOC ruling 
that tests must be job-related in order to be valid. How­
ever, none of these cases stands for the proposition that 
an EEOC interpretation is binding upon the courts; in fact, 
in International Chemical Workers, supra at 366, it was 
held that such interpretations of the EEOC are “ * * * not 
conclusive on the courts * * We cannot agree with 
plaintiffs’ contention that such an interpretation by EEOC 
should be upheld where, as here, it is clearly contrary to 
compelling legislative history and, as will be shown, the 
legislative history of § 703(h) will not support the view 
that a “professionally developed ability test” must be job- 
related.

The amendment which incorporated the testing provision 
of § 703(h) was proposed in modified form by Senator 
Tower, who was concerned about a then-recent finding by 
a hearing examiner for the Illinois Fair Employment Prac­
tices Commission in a case involving Motorola, Inc. The 
examiner had found that a pre-employment general intelli­
gence test which Motorola had given to a Negro applicant 
for a job had denied the applicant an equal employment

Opinion of the United States Court of Appeals



221a

opportunity because Negroes were a culturally deprived 
or disadvantaged group. In proposing bis original amend­
ment, essentially the same as the version later unanimously 
accepted by the Senate, Senator Tower stated:

“It [the amendment which, in substance, became the 
ability testing provision of § 703(h)] is an effort to 
protect the system whereby employers give general 
ability and intelligence tests to determine the train- 
ability of prospective employees. The amendent arises 
from my concern about what happened in the Motorola 
FEPC case * * *,

“Let me say, only, in view of the finding in the 
Motorola case, that the Equal Employment Oppor­
tunity Commission, which would be set up by the act, 
operating in pursuance of Title VII, might attempt to 
regulate the use of tests by employers * * *.

“If we should fail to adopt language of this kind, 
there could be an Equal Employment Opportunity 
Commission ruling which would in effect invalidate 
tests of various kinds of employees by both private 
business and Government to determine the professional 
competence or ability or trainability or suitability of 
a person to do a job.” (Emphasis added.) 110 Con­
gressional Record 13492, June 11, 1964.

The discussion which ensued among members of the 
Senate reveals that proponents and opponents of the Act 
agreed that general intelligence and ability tests, if fairly 
administered and acted upon, were not invalidated by the 
Civil Rights Act of 1964. See, 110 Congressional Record 
13503-13505, June 11, 1964.

The “Clark-Case” interpretative memorandum pertain­
ing to Title VII fortifies the conclusion that Congress did

Opinion of the United States Court of Appeals



222a

not intend to invalidate an employer’s use of bona fide 
general intelligence and ability tests. It was stated in said 
memorandum:

“There is no requirement in Title VII that employers 
abandon bona fide qualification tests where, because 
of differences in background and education, members 
of some groups are able to perform better on these 
tests than members of other groups. An employer may 
set his qualifications as high as he likes, he may test 
to determine which applicants have these qualifica­
tions, and he may hire, assign, and promote on the 
basis of test performance.” (Emphasis added.) 110 
Congressional Record 7213, April 8, 1964.

When Senator Tower called up his modified amendment, 
which became the ability testing provision of §7G3(h), 
Senator Humphrey—one of the leading proponents and the 
principal floor leader of the fight for passage of the entire 
Act—stated:

“I think it should be noted that the Senators on both 
sides of the aisle who were deeply interested in Title 
VII have examined the text of this amendment and 
found it to be in accord with the intent and purpose of 
that title.

“I do not think there is any need for a rollcall. We 
can expedite it. The Senator has won his point.

“I concur in the amendment and ask for its adop­
tion.” (Emphasis added.) 110 Congressional Record 
13724, June 13, 1964.

At no place in the Act or in its legislative history does 
there appear a requirement that employers may utilize 
only those tests which measure the ability and skill re­

Opinion of the United States Court of Appeals



223a

quired by a specific job or group of jobs. In fact, the legis­
lative history would seem to indicate clearly that Congress 
was actually trying to guard against such a result. An 
amendment requiring a “direct relation” between the test 
and a “particular position” was proposed in May 1968,7 
but was defeated. We agree with the district court that a 
test does not have to be job-related in order to be valid 
under § 703(h).8

Having determined that Duke’s educational and test­
ing requirements were valid under Title VII, we reach the 
conclusion that those four Negro employees without a high 
school education who were hired after the adoption of the 
educational requirement are not entitled to relief. These 
employees were hired subject to the educational require­
ment ; each accepted a position in the Labor Department 
with his eyes wide open. Under this valid educational re­
quirement these four plaintiffs could have been hired only 
in the Labor Department and could not have been promoted 
or advanced into any other department, irrespective of 
race, since they could not meet the requirement. Conse­
quently, it could not be said that they have been dis­
criminated against. Furthermore, since the testing require­
ment is being applied to white and Negro employees alike

7 Senate Report No. 1111, May 8, 1968.
8 This decision is not to be construed as holding that a n y  educa­

tional or testing requirement adopted by a n y  employer is valid 
under the Civil Rights Act of 1964. There must be a genuine busi­
ness purpose in establishing such requirements and they cannot be 
designed or used to further the practice of racial discrimination. 
Future cases must be decided on the bases of their own fact situa­
tions in light of pertinent considerations such as the company’s 
past hiring and advancement policies, the time of the adoption of 
the requirements, testimony of experts and other evidence as to 
the business purpose to be accomplished, and the company’s stated 
reasons for instituting such policies.

Opinion of the United States Court of Appeals



224a

as an approximate equivalent to a high school education 
for advancement purposes, neither is it racially discrimina­
tory.

Once we have determined that certain of the plaintiffs 
are entitled to relief the next question for consideration 
is the nature and extent of relief to be provided.9 Those 
six Negro employees without a high school education or 
its equivalent who were hired prior to the initiation of the 
educational requirement are entitled to injunctive relief 
under § 706(g) of the Civil Eights Act of 1964, 42 U.S.C. 
§ 2000e-5(g).10 The educational and test requirements are

Opinion of the United States Court of Appeals

9 The plaintiffs disclaim any request for or entitlement to relief 
other than by way of injunction. Had there been an issue as to 
monetary awards for damages to those plaintiffs found to have been 
the victims of racial discrimination, there would have been pre­
sented the further issue as to the date of applicability of the Act. 
There were only 95 employees at the Dan River plant when the 
Act became effective on July 2, 1965, but Duke Power Company 
then employed some 6,000 persons throughout its entire system. 
The Act was initially applicable to employers with 100 or more 
employees, and it did not become applicable to employers with 75 
to 100 employees until July 2, 1966. However, since the relief 
requested and awarded is solely injunctive in nature no question 
as to the applicability date of the Act is presented for decision.

10 Section 706(g) of the Civil Rights Act of 1964 limits injunc­
tive relief to situations in which an employer or a union has “in­
tentionally engaged in or is intentionally engaging in” an unlawful 
employment practice. While we have found Duke’s educational 
and testing requirements valid as to employees hired subsequently 
to the adoption of the educational requirement, we further con­
clude that Duke had intentionally engaged in discriminatory hir­
ing practices in earlier years long prior to the enactment of the 
Civil Rights Act of 1964 and that, as to those six Negro employees 
hired prior to the adoption of the educational requirement, the 
effects of this discrimination were continued. Thus, these six plain­
tiffs may be granted appropriate injunctive relief under § 706(g).
See Clark v. American Marine Corp., No. 16315, -----  F. Supp.
__ L (E.D. La. Sept. 15, 1969); Local 189 v. United States, No.
25956, ----- F .2 d --------  (5 Cir. July 28, 1969).



225a

invalid as applied to tlieir eligibility for transfer and pro­
motion. Thus, on remand, the district court should award 
proper injuctive relief to insure that these six employees 
are considered for any future openings without being 
subject to the educational or testing requirements. This 
will work no hardship upon the company since the relief 
provided will simply require it to consider those Negro 
employees equally with similarly situated white employees, 
many of whom do not have a high school education or its 
equivalent. If a Negro employee is advanced to a job in 
one of the better departments and his inability to perform 
the duties of the job is demonstrated after a reasonable 
period the company will be justified in returning him to 
his previous position or placing him elsewhere. As Judge 
Butzner said in Quarles, 279 F.Supp. 505, 521 (E.D. Va. 
1968), supra:

“If any transferee fails to perform adequately 
within a reasonable time * * * he may be removed and 
returned to the department and job classification from 
which he came, or to another higher job classification 
for which the company may believe him fitted.”

In granting relief, the district court should order that 
seniority rights of the six Negro employees who are victims 
of discrimination be considered on a plant-wide, rather 
than a departmental, basis. To apply strict departmental 
seniority would result in the continuation of present effects 
of past discrimination whenever one of the six is considered 
in the future for advancement to a vacant job in competi­
tion with a white employee who has already gained de­
partmental seniority in a better department as a result of 
past discriminatory hiring practices. In United States

Opinion of the United States Court of Appeals



226a

v. Local 1 8 9 ,  282 F.Supp. 39, 44 (E.D. La. 1968), aff’d, No. 
25956,----- F .2d------  (5 Cir. 1969), supra, the court held:

“Where a seniority system has the effect of perpe­
trating discrimination, and concentrating or ‘tele­
scoping’ the effect of past discrimination against Negro 
employees into the present placement of Negroes in 
an inferior position for promotion and other purposes, 
that present result is prohibited, and a seniority sys­
tem which operates to produce that present result must 
be replaced with another system.” 11

It is to be understood and remembered that there are 
thirteen named Negro plaintiffs who bring this action. 
Jesse C. Martin, a Negro formerly employed in the Labor 
Department who had a high school education, was advanced 
to a higher position subsequent to the effective date of the 
Act. He is not joined as a plaintiff since the past discrimi­
nation against him has been removed. This case is now 
moot as to two of the named Negro plaintiffs who have 
high school educations and have been advanced; also as to 
Willie Boyd, who has acquired the equivalent of a high 
school education and is now eligible for advancement.

Briefly summarizing, only those sis Negro employees 
without a high school education or its equivalent who were 
hired prior to the adoption of the educational requirement 
are entitled to relief. As to them the judgment below is 
reversed and the case is remanded to the district court

Opinion of the United States Court of Appeals

ii Here, despite the company’s representations to the contrary, it 
is apparent that strict departmental seniority is not always fol­
lowed since the company admits that an employee sometimes enters 
a new department at a position a b o v e  the entry level; however, it 
is the more general practice for an employee to enter a new de­
partment at the lowest classification therein.



227a

with directions to fashion appropriate injunctive relief 
consistent with this opinion. As to the remaining Negro 
plaintiffs the judgment below is affirmed.

Opinion of the United States Court of Appeals

Affirmed in part, 
reversed in part, 
and remanded.

S obeloff, Circuit Judge, concurring in part and 
dissenting in p a r t:

The decision we make today is likely to be as pervasive 
in its effect as any we have been called upon to make in re­
cent years. For that reason and because the prevailing 
opinion puts this circuit in direct conflict with the Fifth,1 
I find it appropriate to set forth my views in some detail.

While I concur in the grant of relief to six of the plain­
tiffs, I dissent from the majority opinion insofar as it up­
holds the Company’s educational and testing requirements 
and denies relief to four Negro employees on that basis.

The case presents the broad question of the use of al­
legedly objective employment criteria resulting in the 
denial to Negroes of jobs for which they are potentially 
qualified.2 This is not the first time the federal courts of 
our circuit have been exposed to this problem. In what has 
become a leading case, Judge Butzner of our court, sitting

1 Local 189 v. United States, ——  F.2d ----- , 71 LRRM 3070,
3081 (5th Cir., July 28, 1969), discussed at note 8, in f r a .

2 S e e  g e n e r a l l y  Cooper and Sobel, Seniority and Testing Under 
Fair Employment Laws, A General Approach to Objective Criteria 
of Hiring and Promotion, 82 Harv. L. Rev. 1598 (June 1969) 
[hereinafter cited as Cooper and Sobel] ; Note, Legal Implications 
of the Use of Standardized Ability Tests in Employment and 
Education, 68 Col. L. Rev. 691 (April 1968).



228a

as a district judge by designation, authoritatively dealt with 
the question of the denial of jobs to blacks because of a 
seniority system built upon a pattern of past discrimina­
tion. Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. 
Va. 1968). Today we are faced with an analogous issue, 
namely, the denial of jobs to Negroes who cannot meet ed­
ucational requirements or pass standardized tests, but who 
quite possibly have the ability to perform the jobs in ques­
tion. On this issue hangs the vitality of the employment 
provisions (Title VII) of the 1964 Civil Rights Act: 
whether the Act shall remain a potent tool for equalization 
of employment opportunity or shall be reduced to melliflu­
ous but hollow rhetoric.

The pattern of racial discrimination in employment paral­
lels that which we have witnessed in other areas. Overt 
bias, when prohibited, has ofttimes been supplanted by 
more cunning devices designed to impart the appearance 
of neutrality, but to operate with the same invidious effect 
as before. Illustrative is the use of the Grandfather Clause 
in voter registration—a scheme that was condemned by the 
Supreme Court without dissent over a half century ago. 
Guinn v. United States, 238 U.S. 347 (1915).3 Another il­
lustration is the resort to pupil transfer plans to nullify 
rezoning which would otherwise serve to desegregate 
school districts. Again, the illusory even-handedness did 
not shield the artifice from attack; the Supreme Court 
unanimously repudiated the plan. Goss v. Bd. of Education, 
373 U.S. 683 (1963). It is long recognized constitutional 
doctrine that “sophisticated as well as simple-minded modes 
of discrimination” are prohibited. Lane v. Wilson, 307 U.S.

Opinion of the United States Court of Appeals

3 The opinion was unanimous save for Mr. Justice McReynolds, 
who took no part in the consideration or decision of the case.



229a

268, 275 (1938) (Frankfurter, J.). We should approach 
enforcement of the Civil Rights Act in the same spirit,4 

In 1964 Congress sought to equalize employment oppor­
tunity in the private sector. Title VII, § 703(a) of the 1964 
Civil Rights Act provides :

It shall he an unlawful employment practice for an em­
ployer—

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or

(2) to limit, segregate, or classify his employees 
in any way which would deprive or tend to deprive 
any individual of employment opportunities or other­
wise adversely affect his status as an employee, be­
cause of such individual’s race, color, religion, sex, or 
national origin. 42 U.S.C. §2000e-2(a).

The statute is unambiguous. Overt racial discrimination 
in hiring and promotion is banned. So too, the statute 
interdicts practices that are fair in form but discriminatory 
in substance. Thus it has become well settled that “ob­
jective” or “neutral” standards that favor whites but do 
not serve business needs are indubitably unlawful employ­

4 It is not part of my contention that the defendant in the present 
case availed himself of “objective” employment _ procedures de­
liberately to evade the strictures of Title II. As will be developed, 
an employer’s state of mind when he adopts the standards is ir­
relevant when the effect of his actions is not different from pur­
poseful discrimination. At any rate, it is my view that the ma­
jority’s construction of Title VII will invite many employers to 
seize on such measures as tools for their forbidden designs.

Opinion of the United States Court of Appeals



230a

ment practices. The critical inquiry is business necessity 
and if it cannot be shown that an employment practice 
which excludes blacks stems from legitimate needs the prac­
tice must end. Quarles v. Philip Morris, supra; Local 189
v. United States,----- F .2d------ , 71 LRRM 3070 (5th Cir.
July 28, 1969); Local 53 v. Vogler, 407 F.2d 1047 (5th Cir. 
1969). For example, a requirement that all applicants for 
employment shall have attended a particular type of school 
would seem racially neutral. But what if it develops that 
the specified schools were open only to whites, and if, 
moreover, they taught nothing of particular significance 
to the employer’s needs! No one can doubt that the re­
quirement "would be invalid. It is the position of the Equal 
Employment Opportunities Commission (EEOC) that ed­
ucational or test requirements which are irrelevant to job 
qualifications and which put blacks at a disadvantage are 
similarly forbidden.

I
Use of Non-Job-Related

Educational and Testing Standards
The Dan River plant of the Duke Power Company is 

organized into five departments: (1) Operations; (2) Main­
tenance; (3) Laboratory and Test; (4) Coal Handling; 
and (5) Labor. There is also a miscellaneous category 
which includes watchmen. Until 1965 blacks were routinely 
relegated to the all-Negro Labor Department as part of a 
policy of overt discrimination.

The era of outrightly acknowledged bias at Duke Power 
is admittedly at an end. However, plaintiffs contend that 
administration of certain “objective” transfer criteria have 
accomplished substantially the same result. It was not 
until August 1966 that any Negro was promoted out of the 
Labor Department. Altogether, as of this date, three blacks

Opinion of the United States Court of Appeals



231a

have advanced from that department. They were the only 
ones that could mesaure up to the Company’s requisites 
for transfer.* 6

In 1955 the Company first imposed its educational re­
quirement : a high school diploma (or successful comple­
tion of equivalency [“GED”] tests) would be necessary 
to progress from any of the outside departments (Labor, 
Coal Handling, Watchmen) to any of the inside depart­
ments (Operations, Maintenance, Laboratory and Test) or 
from Labor to the two other outside classifications. In 
1965 the Company provided that in lieu of a high school 
diploma or equivalent, employees could satisfy the trans­
fer standards by passing two “general intelligence” tests, 
the 12 minute “Wonderlic” test and the 30 minute “Bennett 
Mechanical AA” test. It is uncontroverted that all of these 
requirements are equivalent.

A. The Necessity for Job-Relatedness
Whites fare overwhelmingly better than blacks on all 

the criteria,6 as evidenced by the relatively small promotion

Opinion of the United States Court of Appeals

6 At oral argument we were told that one other black has since 
qualified but has not yet been transferred.

6 No one seriously questions the fact that, in general, whites regis­
ter far better on the Company’s alternative requirements than 
blacks. The reasons are not mysterious.

H i g h  S c h o o l  E d u c a t i o n .  In North Carolina, census statistics 
show, as of 1960, while 34% of white males had completed high 
school, only 12% of Negro males had done so. On a gross level, 
then, use of the high school diploma requirement would favor whites 
by a ratio of approximately 3 to 1.

S a n d a r d i z e d  T e s ts .  It is generally known that standardized ap­
titude tests are designed to predict future ability by testing a 
cumulation of acquired knowledge.

In other words, an aptitude test is necessarily measuring a 
student’s background, his environment. It is a test of his



232a

rate from the Labor Department since 1965. Therefore, the 
EEOC contends that use of the standards as conditions 
for transfer, unless they have significant relation to per­
formance on the job, is improper. The requirements, to 
withstand attack, must be shown to appraise accurately 
those characteristics (and only those) necessary for the 
job or jobs an employee will be expected to perform. In 
others, the standards must be “job-related.”

Plaintiffs and the Commission are not asking, as the 
majority implies, that blacks be accorded favored treatment 
in order to remedy centuries of past discrimination. That 
many members of the long disfavored group find themselves 
ill equipped for certain employments is a burden which 
the 1964 Civil Rights Act does not seek to lift. The argu­
ment is only that educational and cultural differences caused 
by that history of deprivation may not be fastened on as 
a test for employment when they are irrelevant to the 
issue of whether the job can be adequately performed.

Duke Power, on the other hand, maintains that its se­
lection standards are unimpeachable since in its view the

Opinion of the United States Court of Appeals

cumulative experiences in his home, his community and his 
school.

Hobson v. Hansen, 269 P. Supp. 401 (D.D.C. 1967), aff’d  su b  n o m . ,
Smuck v. Hobson,----- F .2 d ------  (D.C. Cir. 1969) (en banc).

Since for generations blacks have been afforded inadequate 
educational opportunities and have been culturally segregated 
from white society, it is no more surprising that their performance 
on “intelligence” tests is significantly different than whites’ than 
it is that fewer blacks have high school diplomas. In one instance, 
for example, it was found that 58% of whites could pass a bat­
tery of standardized tests, as compared with only 6% of the blacks. 
Included among those tests were the Wonderlic and Bennett tests. 
Decision of EEOC, cited in CCH Empl. Prac. Guide P209.25 
(Dec. 2, 1966).

For a comprehensive analysis of the impact of standardized 
tests on blacks, see Cooper and Sobel. 1638-1641.



233a

tests (and therfore also the equivalent educational stand­
ard) are protected by § 703(h) of Title VII.

Section 703(h) provides, in pertinent part:
* * * nor shall it be an unlawful employment practice 
for an employer to give and to act upon the results 
of any professionally developed ability test provided 
that such test, its administration or action upon the 
results is not designed, intended or used to discriminate 
because of race, color, religion, sex or national origin. 
42 U.S.C. § 2000e-2(h).

The Company asserts that its tests are “professionally de­
veloped ability tests” and thus do not have to be job-related. 
The District Court agreed and rejected the construction 
put upon § 703(h) by the EEOC. The majority here adopts 
this view.

In its Guidelines on Employment Testing Procedures7 
the Commission has held that a test can be a “profession­
ally developed ability test” only if it

fairly measures the knowledge or skills required by the 
particular job or class of jobs which the applicant 
seeks, or which fairly affords the employer a chance 
to measure the applicant’s ability to perform a par­
ticular job or class of jobs. The fact that a test was 
prepared by an individual or organization claiming 
expertise in test preparation does not, without more, 
justify its use within the meaning of Title VII.7a

7 Issued September 21, 1966. The G u id e l in e s  may be found in 
CCH Empl. Prac. Guide ((16,904 at 7319.

7a The newly appointed chairman of the EEOC, William H. 
Brown, III, has recently reaffirmed this thesis. In an address on 
November 26, 1969 he asked representatives of more than forty

Opinion of the United States Court of Appeals



234a

In rejecting the Commission Guidelines the District 
Court erred and the majority repeats the error. Under 
settled doctrine the Commission’s interpretation should be 
accepted. The Supreme Court has held that

[w]hen faced with a problem of statutory construction, 
this Court shows great deference to the interpretation 
given the statute by the officers or agency charged with 
its administration. “To sustain the Commission’s ap­
plication of this statutory term, we need not find that 
its construction is the only reasonable one, or even 
that it is the result we would have reached had the 
question arisen in the first instance in judicial pro­
ceedings.” Unemployment Comm’n v. Aragon, 329 U.S. 
143, 153. See also, e.g., Gray v. Powell, 314 U.S. 402; 
Universal Battery Co. v. United States, 281 U.S. 580, 
583. “Particularly is this respect due when the admin­
istrative practice at stake ‘involves a contemporaneous 
construction of a statute by the men charged with the 
responsibility of setting its machinery in motion, of 
making the parts work efficiently and smoothly while 
they are yet untried and new.’ ” Power Reactor Co. v. 
Electricians, 367 U.S. 396, 408.

UdaU v. Tollman, 380 U.S. 1, 16 (1965). In the Tollman 
case, the Court found that a construction of an Executive 
Order made by the Secretary of the Interior was not un­
reasonable. Accordingly, it followed the Secretary’s inter­
pretation.

Guidelines of the EEOC are entitled to similar consider­
ation. The Fifth Circuit agrees. In Weeks v. Southern Bell

Opinion of the United States Court of Appeals

trade associations to “review selection and testing procedures to 
make sure they reflect actual job requirements.” 72 LRR 413, 416 
(12/8/69).



235a

Tel. & Tel. Co., 408 F.2d 228 (5th Cir., 1969), that court, in 
deciding a Title VII sex discrimination case, accorded 
“considerable weight” to the EEOC guideline which con­
strued the relevant statutory provision. In a more recent 
case the same court noted the rejection of the EEOC’s 
position by the lower court in the present case and spe­
cifically disapproved of the decision here under review.8
Local 1 8 9  v. United States,-----F.2d------- , 71 LRRM 3070,
3081 (July 28, 1969). We should do the same.

Other courts have reached similar results. Granting re­
lief from the effects of a departmental and seniority struc­
ture, Judge Butzner found in Quarles that “[t]he restric­
tions do not result from lack of merit or qualification.” 279 
F. Supp. at 513. The Eighth Circuit has held that “it is 
essential that journeyman’s examinations be objective in 
nature, that they be designed to test the ability of the 
applicant to do that work usually required by a journeyman
* * * ” United States v. Local 3 6 ,  Sheet Metal Workers,-----
F.2d -----  (8th Cir. Sept. 16, 1969). Accord, Dobbins v.
Local 212, IBEW, 292 F. Supp. 413 (S.D. Ohio 1968).

Not only is the Commission’s interpretation of § 703(h) 
not unreasonable, but it makes eminent common sense. The 
Company would have us hold that any test authored by

8 Judge Wisdom stated that
[The G r ig g s  court] went on to strike down an EEOC inter­
pretation of that provision which would limit the exemption 
to tests that measure ability “r e q u i r e d  by the p a r t i c u l a r  jo b  
or class of jobs which the applicant seeks.” * * *

When an employer adopts a system that necessarily carries 
forward the incidents of discrimination into the present, his 
practice constitutes ongoing discrimination, unless the inci­
dents are limited to those that safety and efficiency require. 
That appears to be the premise for the Commission’s interpre­
tation of § 703 (h). To the extent that G r ig g s  departs from 
that view, we find it unpersuasive.

71 LKRM at 3081.

Opinion of the United States Court of Appeals



236a

a professional test designer is “professionally developed” 
and automatically merits the court’s blessing. But, what is 
professionally developed for one purpose is not neces­
sarily so for another. A professionally developed typing 
test, for example, could not be considered professionally 
developed to test teachers. Similarly, a test that is ade­
quately designed to determine academic ability, such as a 
college entrance examination, may be grossly wide of the 
mark wdien used in hiring a machine operator. Moreover, 
the Commission’s is the only construction compatible with 
the purpose to end discrimination and to give effect to 
§ 703(a). Although certainly not so intended, my breth­
ren’s resolution of the issue contains a built-in invitation 
to evade the mandate of the statute. To continue his dis­
criminatory practices an employer need only choose any 
test that favors whites and is irrelevant to actual job 
qualifications. In this very case, the Company’s oft-reit­
erated but totally unsubstantiated claim of business need 
has been deemed sufficient to sustain its employment stan­
dards. The record furnishes no supporting evidence, only 
the defendant’s ipse dixit.

It would be enough to rest our decision on the reason­
ableness of the EEOC’s position. A deeper look, however, 
at the legislative history of § 703(h) provides powerful 
additional support for its construction.

Congressional discussion of employment testing came in 
the swath of the famous decisions of an Illinois Fair 
Employment Practices Commission hearing examiner, My- 
art v. Motorola* That case went to the extreme of sug­
gesting that standardized tests on which whites performed 
better than Negroes could never be used. The decision was 9

9 Decided on February 26, 1964. Reproduced in 110 Cong. Rec. 
5662-64 (1964).

Opinion of the United States Court of Appeals



237a

generally taken to mean that such tests could never be 
justified even if the needs of the business required them.

Understandably, there was an outcry in Congress that 
Title VII might produce a Motorola decision. Senators 
Clark and Case moved to counter that speculation. In their 
interpretive memorandum they announced that

[tjhere is no requirement in Title VII that employers 
abandon bona fide qualification tests where, because of 
differences in background and education, members of 
some groups are able to perform better on these tests 
than members of other groups. An employer may set 
his qualifications as high as he likes, he may test to 
determine which applicants have these qualifications, 
and he may hire, assign, and promote on the basis of 
test performance.10

Read against the context of the Motorola controversy, the 
import of the Clark-Case statement plainly appears: em­
ployers were not to be prohibited from using tests that 
determine qualifications. “Qualification” implies qualifica­
tion for something. A reasonable interpretation of what 
the Senators meant, in light of the events, was that nothing 
in the Act prevents employers from requiring that appli­
cants be fit for the job. Tests for that purpose may be as 
difficult as an employer may desire.

Senator Tower, however, was not satisfied that a Motor­
ola decision was beyond the purview of Title VII as written. 
He introduced an amendment which had the object of 
preventing the feared result. His amendment provided 
that a test, administered to all applicants without regard 
to race, would be permissible “if * * * in the case of any

Opinion of the United States Court of Appeals

10110 Cong. Roc. 7213 (1964).



238a

individual who is an employee of such employer, such test 
is designed to determine or predict whether such indi­
vidual is suitable or trainable with respect to his employ­
ment [or promotion or transfer] in the particular business 
or enterprise involved * * [Emphasis added.]11 It was 
emphatically represented by the author that the amend­
ment was “not an effort to weaken the bill”12 and “would 
not legalize discriminatory tests”13 but was offered to stave 
off an apprehended Motorola ruling that might “invalidate 
tests * * * to determine the professional competence or 
ability or trainability or suitability of a person to do a 
job ” (Emphasis added.)14 It is highly noteworthy that

11 The amendment was introduced on July 11, 1964. In its en­
tirety it reads:

(h) Notwithstanding any other provision of this title, it 
shall not be an unlawful employment practice for an em­
ployer to give any professionally developed ability test to any 
individual seeking employment or being considered for pro­
motion or transfer, or to act in reliance upon the results of 
any such test given to such individual, if—

(1) in the case of any individual who is seeking employ­
ment with such employer, such test is designed to determine 
or predict whether such individual is suitable or trainable 
with respect to his employment in the particular business or 
enterprise involved, and such test is given to all individuals 
seeking similar employment with such employer without 
regard to the individual’s race, color, religion, sex, or na­
tional origin, or

(2) in the case of an individual who is an employee of 
such employer, such test is designed to determine or predict 
whether such individual is suitable or trainable with re­
spect to his promotion or transfer by such employer with­
out regard to the employee’s race, color, religion, sex, or 
national origin.

110 Cong. Ree. 13492 (1964).
12 Id.
13 Id. at 13504. ..............
14 Id. at 13492.

Opinion of the United States Court of Appeals



239a

Senator Tower’s exertions were not on behalf of tests 
unrelated to job qualifications, but bis aim was to make 
sure that job-related tests would be permitted. He squarely 
disavowed any broader aim.

Senators Case and Humphrey opposed the amendment 
as redundant.15 Reiterating the message of the Clark- 
Case memorandum, Senator Case declared that “[t]he 
Motorola case could not happen under the bill the Senate 
is now considering.”16 Senator Case also feared that some 
of the language in the amendment would be susceptible to 
misinterpretation.17 The amendment was defeated.18

Two days later Senator Tower offered § 703(h) in its 
present form, stating that it had been agreed to in principle 
“[b]ut the language was not drawn as carefully as it should 
have been.”19 The new amendment was acceptable to the 
proponents of the bill and it passed.20

What does this history denote? It reveals that because 
of the Motorola case there was serious concern that tests 
that select for job qualifications—job-related tests—might 
be deemed invalid under Title VII. Senators Clark, Case 
and Humphrey thought the fear illusory, but Senator Tower

16 I d .  at 13503-04.
16 I d .  at 13503.
17 In fact, it appears that Senator Case was concerned that the 

amendment might be construed the way Duke Power would have 
us construe the enacted § 703(h).

If this amendment were enacted it could be an absolute bar 
and would give an absolute right to an employer to state as a 
fact that he had given a test to all applicants, whether it was 
a good test or not, so long as it was professionally designed.

I d .  at 13504.
18 I d .  at 13505.
18 I d .  at 13724.
20 I d .

Opinion of the United States Court of Appeals



240a

expended great effort to insure against the possibility. 
At the same time he gave assurance that he did not mean 
to weaken the Act. His first proposed amendment contained 
language which contemplated that tests were to be job- 
related. According to his own formulation tests had to be 
of such character as to determine whether “an individual 
is suitable with respect to his employment.” At no time was 
there a clash of opinion over this principle but the amend­
ment was opposed by proponents of the bill for other rea­
sons and was rejected. The final amendment, which was 
acceptable to all sides could hardly have required less of 
a job relation than the first.21 Since job-relatedness was 
never in dispute there is no room for the inference that 
the bill in its enacted form embodied a compromise on this 
point. The conclusion is inescapable that the Commission’s 
construction of § 703(h) is well supported by the legisla­
tive history.22

21 Indeed, the avowed tightening of language by Senator Tower 
in the interim, n.19, s u p r a ,  was presumably in response to the mis­
giving expressed by Senator Case that the original amendment 
could lend itself to the construction that Duke Power now seeks. 
S e e  n.15, s u p r a .

22 The majority argues that congressional action some years after 
the passage of the 1964 Act supports the Company’s position. This 
is not legislative history. Even if the import of the action were 
unequivocal it would not speak for the will of the 88th Congress 
which passed the statute.

The cited legislative deliberation was occasioned by a bill intro­
duced in May 1968 to modify Title VII. S e e  S. 3465, 90th Cong., 
2d Sess. § 6(e) (1968). If adopted it would have amended
§ 703(h) to embody a job-related standard in express terms. How­
ever, the bill was not enacted. One can draw differing and incon­
sistent conclusions from these events. I t could be argued, as the 
majority does, that the bill’s proponents recognized that § 703(h) 
as it stands does not contemplate job-relation. It is equally pos­
sible that the bill ultimately did not pass because the amendment 
was thought to be unnecessary. The bill’s adherents might also 
have thought that the new amendment would represent no change,

Opinion of the United States Court of Appeals



241a

Manifestly, then, so far as Duke Power relies on § 703(h) 
for the proposition that its tests (or other requirements) 
need not be job-related, it must fail.

B. The District Court’s Findings and the Evidence 
Supporting It.

There can be no serious question that Duke Power’s cri­
teria are not job-related. The District Court expressly 
found that they were not,23 and that finding is the only 
one consistent with the evidence.

To insure that a criterion is suitably fitted to a job or 
jobs, an employer is called upon to demonstrate that the 
standard was adopted after sufficient study and evaluation. 
It is not enough that officials think or hope that a require­
ment will work. In the District Court, Dr. Richard Barrett

Opinion of the United States Court of Appeals

but offered it to forestall employers, such as Duke Power, from 
construing § 703(h) incorrectly. The inferences to be drawn from 
the introduction of the bill and its death are at best ambiguous and 
inconclusive.

If one must look to subsequent events for elucidation, considera­
tion might be given to the comment of a Senator who was inti­
mately involved in the passage of § 703(h). Senator Humphrey 
has stated that in his view § 703(h) did not protect tests if they 
were “irrelevant to the actual job requirements.” Letter to 
American Psychological Association, quoted in The Ind. Psycholo­
gist (Div. 14, Am. Psychological Ass’n Newsletter), August, 1965, 
at 6, cited in Cooper and Sobel, 1653, n.67.

23 The District Judge said:
The two tests used by the defendant were never intended to 
accurately measure the ability of an employee to perform the 
particular job available.

*  * *  *

* * * These qualities are general in nature and are not indica­
tive of a person’s ability to perform a particular task. Never­
theless, they are qualities which the defendant would logically 
want to find in his employees.

292 P. Supp. 243, 250 (1968).



242a

was qualified as an expert witness for plaintiff on the “use 
of tests and other selection procedures for selection in 
promotion and employment.” He testified as to what sound 
business practice would dictate: First, a careful job analy­
sis should be made, detailing the tasks involved in a job 
and the precise skills that are necessary. Then, on the 
basis of this analysis, selection procedures may be chosen 
that are adapted to the relevant abilities. Then, the most 
important step is to validate the chosen procedures, that 
is, to test their results with actual performance.

The EEOC concurs. The Guidelines detail methods to be 
used to develop, study, and validate employment criteria.24

Compare with the above what Duke Power has done and 
what it has failed to do. Company officials say that the 
high school requirement was adopted because they thought 
it would be helpful. Indeed, a company executive candidly 
admitted that

there is nothing magic about it, and it doesn’t work 
all the time, because you can have a man who graduated 
from High School, who is certainly incompetent to go
on up, but we felt this was a reasonable requirement 
■§> * •

Opinion of the United States Court of Appeals

Duke Power offered the testimony of Dr. Dannie Moffie, 
an expert “psychologist in the field of industrial and per­

24 The recommended methods were adopted after study by a 
panel of psychologists. The Commission has the power “to make 
such technical studies as are appropriate to effectuate the pur­
poses and policies of this subchapter and to make the results of 
such studies available to the public[.]” 42 U.S.C. 2000e-4(f) (5).

A l s o  see  33 Fed. Reg. 14392 (1968). By order of the Secretary 
of Labor, detailed minimum standards of evidence of test validity 
have been issued for federal contractors. That evidence is reviewed 
by the Office of Federal Contract Compliance to determine whether 
or not a contractor has violated Executive Order 11,246, 3 C.F.R. 
339 (1964-65 comp.), banning racial discrimination.



243a

sonnel testing.” Dr. Moffie agreed that a professionally 
developed test “should be reliable and * * * should be valid.” 
The question of validity, he said, is whether “the test mea­
sures what it has been set up to measure.” Dr. Moffie never 
asserted that the Bennett and Wonderlic tests had been 
validated for job-relatedness. In fact, he testified that a 
job-related validity study was begun at the Dan River 
plant in 1966 but has not yet been completed. What this 
expert did claim was that the tests had been validated for 
their express purpose of determining “whether or not a 
person has the intelligence level and the mechanical ability 
level that is characteristic of the High School graduate. 
According to Dr. Moffie,

when [the tests] function as a substitute or in lieu of 
a High School education, then, the assumption is that 
the test then,—the High School education is the kind 
of training and ability and judgment that a person 
needs to have, in order to do the jobs that we are 
talking about here * * *.

It is precisely this assumption that is totally unsubstan­
tiated. The tests stand, and fall, with the high school re­
quirement. The testimony does establish that the tests 
are the equivalent or a suitable substitute for a high school 
education, but there is an utter failure to establish that 
they sufficiently measure the capacity of the employee to 
perform any of the jobs in the inside departments. This 
is a fatal omission and should mark the end of the story.

C. The Alleged Business Justification
But on the majority’s theory, there can be business 

justification in the absence of job-relatedness. The Com­
pany’s promotion policy has always been to give on-the-job

Opinion of the United States Court of Appeals



244a

training—the next senior man is promoted if, after he 
tries out on the job, he is found qualified. The Company 
claims that ten years before the start of this suit it found 
that, its business having become increasingly complex, em­
ployees in the advanced departments “did not have an 
intelligence level high enough to enable them to progress” 
in the ordinary line of promotion. It is asserted that in 
order to ameliorate this situation and to “upgrade the 
quality of its work force” the Company adopted the high 
school requirement, and later the alternative tests, as con­
ditions for entry into the desirable inside departments. On 
these claims the majority grounds its determination of busi­
ness need.

In fairness to the majority and to the Company, the 
thrust of this factual presentation is to suggest an argu­
ment that does not necessarily disavow job-relatedness. 
Bather, the rule would be that the jobs for which the tests 
must be fitted may be jobs that employees will eventually, 
rather than immediately, be expected to fill. However, the 
plaintiffs and the Commission have neither addressed nor 
rejected that proposition. Rather, it is their contention, 
supported by the testing and finding below, that Duke 
Power has not shown that its educational and testing re­
quirements are related to any job.25

Opinion of the United States Court of Appeals

25 The notion that future jobs can be the basis for a test is not 
inconsistent with the language of the G u id e l in e s  which speaks of 
“the applicant’s ability to perform a particular job or class of 
jobs.” Of course it would be impermissible for an employer to 
gear his requirements to jobs the availability of which is only a 
remote possibility. The office of Federal Contract Compliance 
administers Executive Order 11,246, 3 C.F.R. 339 (1964-65 comp.) 
which bans discrimination by government contractors. That agency 
has recognized this problem and has provided (by order of the 
Secretary of Labor) that when a hiring test is based on possible 
promotion to other jobs, promotion must be probable “within a



245a

Distilled to its essence, the underpinning upon which my 
brethren posit their argument is their expressed belief in 
the good faith of Duke Power. For them, the crucial in­
quiry is not whether the Company can establish business 
need, but whether it has a bad motive or has designed its 
tests with the conscious purpose to discriminate against 
blacks. Thus the majority stresses that the standards were 
adopted in 1955 when overt discrimination was the general 
rule, and hence the new policy was obviously not meant 
to accomplish that end. But this is no answer.

A man who is turned down for a job does not care 
whether it was because the employer did not like his skin 
color or because, although the employer professed impar­
tiality, procedures were used which had the effect of dis­
criminating against the applicant’s race. Likewise irrel­
evant to Title VII is the state of mind of an employer whose 
policy, in practice, effects discrimination. The law will 
not tolerate unnecessarily harsh treatment of Negroes even 
though an employer does not plan this result. The use of 
criteria that are not backed by valid and corroborated busi­
ness needs cannot be allowed, regardless of subjective in­
tent. There can be no legitimate business purpose apart 
from business need; and where no business need is shown, 
claims to business purpose evaporate.26

Opinion of the United States Court of Appeals

reasonable period of time and in a great majority of eases.” 33 
Fed. Reg. 14392, § 2(b) (1) (1968).

In this case, however, the issue is not the propriety of testing 
for remote positions. We might assume that once an employee 
joins the line of progression his advance will be inexorable. Never­
theless, the fact remains that Duke Power’s requirements have 
never been validated for jobs at the end of the ladder, let alone 
those on the bottom rung.

26 As I have noted from the outset of this discussion, the ultimate 
question under Title VII is whether there are business needs for



246a

It may be accepted as true that Duke Power did not 
develop its transfer procedures in order to evade Title VII, 
since in 1955 this enactment could not be foreseen. How­
ever, by continuing to utilize them at the present time, it is 
now evading the Act. And by countenancing the practice, 
this court opens the door to wholesale evasion. We may be 
sure that there will be many who will seek to pass through 
that door.

The Company’s claim to business justification is further 
attenuated by imbalance in the application of the stan­
dards. Even if we view the standards as oriented toward 
future jobs, the fact remains that of those that might 
apply for such positions in the inside partments, only the 
outsiders must meet the questioned criteria in order to 
qualify. Intra-departmental progression remains the same. 
Also there is apparently no restriction on transfer from 
any of the inside departments to the other two inside de­
partments. An employee with no more than a fifth grade 
education who has not taken the tests may try out for new 
inside jobs and transfer to a vacancy in another depart­
ment if he is already in an inside department. In spite of 
Duke Power’s vaunted faith in the necessity of a high 
school education or its equivalent, such an employee may,

Opinion of the United States Court of Appeals

an employer’s policy. Plaintiffs agree and the majority properly 
quotes their brief, adding emphasis:

An employer is, of course, permitted to set educational or test 
requirements that fulfill genuine business needs. * * * 
[W]here business needs can be shown * * * the fact that the 
test tends to exclude more Negroes than whites does not make 
it discriminatory.

The statement is correct and certainly does not “concede,” as the 
majority urges, that the question is only whether Duke Power had 
a “genuine business purpose and [was] without intent to discrimi­
nate against future Negro employees * *



247a

without any test, advance as far as his actual talents per­
mit and qualify for higher pay.

The fact that Duke Power has not consistently relied 
on its standards, especially when viewed in light of the 
fact that the exempted inside group was constituted when 
racial descrimination was in vogue, belies the claim to busi­
ness justification.

In short, Duke Power has not demonstrated how the 
exigencies of its business warrant its transfer standards. 
The realities of the Duke Power experience reveal that 
what the majority seizes upon as business need is in fact 
no more than the Company’s bald assertion. The majority 
opinion’s measure of “genuine business purpose” must be 
very low indeed, for, after all is said and done, Duke Power 
has offered no reason for allowing it to continue its racially 
discriminatory procedures.

Opinion of the United States Court of Appeals

XI
Discriminatory Application of Standards

As described above, the Company’s criteria unfairly 
apply only to outsiders seeking entrance to the inside de­
partments. This policy disadvantages those who were not 
favored with the lax criteria used for whites before 1955. 
As I will show, this when juxtaposed with the history and 
racial composition of the Dan River plant, is itself suffi­
cient to constitute a violation of Title VII.

It is true, as the majority points out, that the uneven­
handed administration of transfer procedures works against 
some whites as well as blacks. It is also true that unlike 
the Constitution, Tile VII does not prohibit arbitrary clas­
sifications generally. Its focus is on racial and other speci­
fied types of discrimination. Thus, when an employer



248a

capriciously favors the inside employees, to the detriment 
of those employed in the outside departments, this is not 
automatically an unlawful employment practice if whites 
as well as blacks are in the disadvantaged class.

On the other hand, it cannot be ignored that while this 
practice does not constitute forthright racial discrimination, 
the policy disfavoring the outside employees has primary 
impact on blacks. This effect is possible only because a 
history of overt bias caused the departments to become so 
imbalanced in the first place. The result is that in 1969, 
four years after the passage of Title VTI, Dan River looks 
substantially like it did before 1965. The Labor Depart­
ment is all black; the rest is virtually lily-white.

There no longer is room for doubt that a neutral super­
structure built upon racial patterns that were discrimina- 
torily erected in the past comes within the Title VII ban. 
Judge Butzner put the point to rest when he rejected an 
employer contention that “the present consequences of past 
discrimination are outside the coverage of the act.” In 
his words, “ [i]t is apparent that Congress did not intend 
to freeze an entire generation of Negro employees into dis­
criminatory patterns that existed before the act.” Quarles 
v. Philip Morris, Inc., 279 F. Supp. 505, 515-16 (E.D. Va. 
1968).

A remedy for this kind of wrong is not without prece­
dent. The “freezing” principle (more properly, the anti­
freezing principle), developed by the Fifth Circuit in vot­
ing cases is analogous. In those cases a pattern and prac­
tice of discrimination excluded almost all eligible Negroes 
from the voting lists but enrolled the vast majority of 
whites. Faced with judicial attack, the authorities found 
that they could no longer avowedly employ discriminatory 
practices. They invented and put into effect instead new,

Opinion of the United States Court of Appeals



249a

unquestionably even-handed, but onerous voting require­
ments which had the effect of excluding new applicants of 
both races, but, as was to be expected, primarily affected 
Negroes, who in the main were the unlisted ones. As the 
Fifth Circuit explained the principle,

[tjhe term “freezing” is used in two senses. It may 
be said that when illegal discrimination or other prac­
tices have worked inequality on a class of citizens and 
the court puts an end to such a practice but a new 
and more onerous standard is adopted before the dis­
advantaged class may enjoy their rights, already fully 
enjoyed by the rest of the citizens, this amounts to 
“freezing” the privileged status for those who acquired 
it during the period of discrimination and “freezing 
out” the group discriminated against.

United States v. Duke, 332 F.2d 759, 768 (5th Cir. 1964). 
Accordingly, the new voting requirements were struck 
down. This remedial measure was approved by the Su­
preme Court in United States v. Louisiana, 380 U.S. 145 
(1965).

Applying similar reasoning to the Title VII employment 
context, the Fifth Circuit invalidated the nepotism policy 
of an all-white union, which restricted new members to 
relatives of old ones. Although the policy of course dis­
criminated against whites as well as others, it was pro­
hibited since it enshrined the white membership and effec­
tively forever denied membership status to Negroes or 
Mexican-Americans. Local 53 v. Vogler, 407 F.2d 1047 (5th 
Cir. 1969).27

Opinion of the United States Court of Appeals

27 S e e  a lso  Houston Maritime Ass’n, 168 NLRB 83, 66 LRRM 
1337 (1967). A union, after having consistently rejected Negroes 
for membership, adopted a new “freeze” policy whereby all new



250a

Title VII bars “freeze-outs” as well as pure discrimina­
tion, where the “freeze” is achieved by requirements that 
are arbitrary and have no real business justification. Thus 
Duke Power’s discrimination against all those who did not 
benefit from the pre-1955 rule for whites operates as an 
illegal “freeze-out” of blacks from the inside departments.

in
Conclusion

Beside the violation found by the majority, Duke Power 
is guilty of an unlawful employment practice in two other 
ways. First, it has used non-job-related transfer standards 
which have the effect of excluding blacks. Second, it has 
implemented those same standards in a discriminatory 
fashion so as to freeze blacks out of the inside departments.

This case deals with no mere abstract legal question. 
It confronts us with one of the most vexing problems 
touching racial justice and tests the integrity and credi­
bility of the legislative and judicial process. We should 
approach our task of enforcing Title VII with full realiza­
tion of what is at stake.

For all of the above reasons, the judgment of the District 
Court should be reversed with directions to grant relief 
to all of the plaintiffs.

Opinion of the United States Court of Appeals

applicants were turned down, white and black. The Labor Board 
found that the union violated the National Labor Relations Act.

[B]y adopting a practice which in operative effect created a 
preferred class in employment, the result was that, the Union’s 
previous policy of discrimination against Negroes as to job 
opportunities solely on the basis of race was continued and 
maintained.

66 LRRM, at 1339.



251a

Order Allowing Certiorari, June 29, 1970

SUPREME COURT OF THE UNITED STATES 

No. 1405—October Term, 1970

W illie S. Griggs, et ah,
Petitioner,

—vs.—

Duke P ower Company, a corporation,

Respondent.

“The motion of the United Steel Workers of America 
AFL-CIO, for leave to file a brief, as amicus curiae, is 
granted. The petition for a writ of certiorari is also 
granted and the case is placed on the summary calendar. 
Mr. Justice Brennan took no part in the consideration 
or decision of this motion and petition.”



MEILEN PRESS INC. —  N. Y. C. 219