United States v. Georgia Power Company Reply Brief for the Appellant as Cross-Appellee
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April 17, 1972

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Brief Collection, LDF Court Filings. United States v. Georgia Power Company Reply Brief for the Appellant as Cross-Appellee, 1972. 07511576-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d7ff313f-602f-4b52-9686-b3e6f048fee1/united-states-v-georgia-power-company-reply-brief-for-the-appellant-as-cross-appellee. Accessed July 09, 2025.
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« NO. 71-3447 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant and Cross-Appellee, V. GEORGIA POWER COMPANY, ET AL., Defendant-Appellee and Cross-Appellant, On Appeal from the United States District Court for the Northern District of Georgia Atlanta Division REPLY BRIEF FOR THE UNITED STATES AS APPELLANT AND BRIEF AS CROSS-APPELLEE JOHN W. STOKES, JR. United States Attorney, DAVID L. NORMAN Assistant Attorney General. DAVID L. ROSE STEVEN B. GLASSMAN Attorneys, Department of Justice Washington, D.C. 20530 J TABLE OF CONTENTS REPLY BRIEF FOR THE UNITED STATES AS APPELLANT Page 1. The District Court Has Authority To Grant Back-Pay in a Pattern or Practice Suit-------- 2 2. The Aptitude Tests Used by Georgia Power Are Unlawful under Title VII ------------------ 7 Conclusion---------------------------------------- ^2 BRIEF FOR THE UNITED STATES AS CROSS-APPELLEE Questions Presented by Georgia Power Company As Cross-Appellant ------------------------------- The Basic Facts 1. Georgia Power's Post-1963 Hiring Practices -- 14 2. The High School Diploma Requirement-------- 14 Summary of Argument---------- - ----------------- 20 Argument I. The District Court Finding that the Georgia Power Company Continued to Discriminate against Black Persons in Its Hiring Practices Is Siq>ported by the Evidence; and the Relief Ordered Was Appropriate---------------- - 22 A. The District Court's Findings Were Supported by the Evidence--------- 23 B. The Relief Ordered Was Appropriate, Insofar as it Went ---------------- 28 II. The District Court Correctly Held that the Company's High School Diploma Requirement Has a Racially Discriminatory Impact and Is Not Required by Business Necessity and Is Therefore Violative of Title VII ---------- Conclusion 31 39 ii TABLE OF CITATIONS Case ^ Bins V. Roadway Express Co., 444 F.2d 687 (5th Cir. 1971) ................... 26 Brooks V. Dewar, 313 U.S. 354 (1940) .......... -..... ......... » Chaney v. City of Galveston, 368 F.2d 774 (5th Cir. 1966) ...... -....... . 20,24 Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir 1970) .................. 28 Galena Oaks Corp. v. Scofield, 218 F.2d (5th Cir. 1954) .......... -....... . 24 Griggs V. Duke Power _Co.. ̂q o oi 99 “̂9 9A 35 Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958) — -........................ ^ Jones V. Lee Way Motor Freight, 7^1 F.2d 245 (10th Cir. 1970) certiorari denied, 401 U.S. 687 (1971) ................. . 26 Lentz V. Metropolitan Life Insurance Co., 428 F.2d 36 (5th Cir. 1970) ------------ ------ 24 Local 53. Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969)---- ------------ 28 Local 189. United Papermakers and Paper Workers V. United States 416 F.2d 988 (5th Cir. 1969), certiorari denied, 397 U.S. 919 (1970) ................... 6 Louisiana v. United States, 380 U.S. 148 (1965) — .... -.................... 28 Phelps Dodge v. National Labor Relations Board, 313 U.S. 177 (1940)... ....................... 6 Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969) ........................... ^ U i Case Page Robinson v. P. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971)... .............. 5,35 Rowe V, G.M. Corp. F.2d , 4EPD [CCH] H7715 (5th Cir., No. 28959, March 2, 1972) ..................... 28 Sprogis V. United Airlines. Inc., 444 F.2d 1194 (7th Cir. 1971) Certiorari denied 4 EPD [CCH] ^7588 (1971) ---- 5 United States v. City of Chicago. 400 U.S. 8 (1970) .............. -........... . 8 United States v. Hayes International Corp.. 415 F.2d 1038 (5th Cir. 1969); also, F.2d , 4 EPD [CCH] H7690 (5th Cir., No. 71-1392, Feb. 22, 1972) ................... 2,5,28 United States v. Ironworkers Local 86. 443 F,2d 544 (9th Cir., 1971), certiorari denied, 404 U.S. 984 (1971) — -........................ 26 United States v. Jacksonville Terminal Co.. 451 F.2d 418 (5th Cir. 1971), certiorari denied Nos. 71-1000, 71-1010, 71-1014, April 24, 1972 .... ...........................-.... ..... 12 United States v. Roadway Express. F.2d ____(6th Cir., No. 71-1873, April 4, 1972 — ............................... 6 United States v. West Peachtree Tenth Corp.. 437 F.2d 221 (5th Cir. 1971) ............ -..... 26 Statutes Title VII of the Civil Rights Act of 1964, (42 U.S.C. §2000e-6) 42 U.S.C. §2000e-2 ...... ................... 8,9 42 U.S.C. S2000e-2 ....................... --- 5 The Equal Employment Opportunity Act of 1972, Public Law 92-261, March 24, 1972 ------------ 8 EEOA, Section 706 ................................ - 3,4 EEOA, Section 707 ...... ........................... 3,4 iv 117 Congressional Record ----------------------- - 4 118 Congressional Record — ------— --------- -------- - 4 EEOC, Guidelines on Etaployee Selection Procedyes (revised), 35 Fed. Reg. 12333, 29 C.F.R* 1607 --------- 7,8,9,10,11,38,39 EEOC, Guidelines on Employment Testing Procedures (August 24, 1966) ----------- -— ---- --- - 10 Senate Report, 92,415 (92d Cong., 2d Sess.) ......................... 8 Miscellaneous American Psychological Assoclationf Standards For Educational and Psychological Tests and Manuals. (1966) --------------- - - ------ 10 Note, Employment Discrimination and Title VII of The Civil Rights Act of 1964. 84 Harv. L. Rev. 1109 (March 1971) .................................... ^ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 71-3447 UNITED STATES OF AMERICA, Plaintiff-Appellant and Cross-Appellee, V. GEORGIA POWER COMPANY, ET AL., Defendant-Appellee and Cross-Appellant. On Appeal from the United States District Court for the Northern District of Georgia Atlanta Division REPLY BRIEF FOR THE UNITED STATES AS APPELLANT On March 17, 1972, Georgia Power Company filed its Brief as Appellee and Cross-Appellant which was devoted to nvimerous issues raised herein, and the Psychological Corporation, the publisher of the majority of the tests at issue in this case, filed its Brief as Amicus Curiae on April 10, 1972, which was devoted solely to the testing issue. Because we believe that a response would help clarify the back-pay and testing issues in this case, and becaxise of significant developments which occurred subsequent to the filing of our main brief as appellant, we are submitting this reply brief as appellant. 1. The District Court has Authority to Grant Back-Pay in a Pattern or Practice Suit. Since the filing of our brief as appellant on January 25, 1972, this Court has passed on the issue of the Government's standing to seek back-pay and Congress has amended Title VII making clear its intent that back-pay recovery serve as an important enforcement tool. On February 22, 1972, this Court ruled (per Dyer, J.) 1/in United States v. Haves International CorT>. , in a suit also brought under Section 707 of the Civil Rights Act of 1964, that the district court had erred in rejecting the Attorney General's claim for back-pay as being filed too late and remanded the case to the district court to hear and determine the issue of back-pay on the merits. Although the Court did not expressly state that such F.2d ___, 4 EPD [CCH] K7690 (5th Cir., No. 71-1392,1/ ___ ___ February 22, 1972). - 2 - relief is authorized, we submit that the Court %rould not have remanded the case to the district court for consideration of that claim, if it believed that as a matter of law the district court was without jurisdiction under the statute. Secondly, and perhaps of more significance, is the fact that on March 24, 1972 the Equal Employment Opporttinity 2/Act of 1972 became law. Under the amended Section 706 of the 1972 Act, the Attorney General and the Equal Employment Opportunity Commission are both empowered to bring civil actions on behalf of individual victims of discrimination 3/ and the classes they represent. Section 706(g) retains the express authority for the courts to award back-pay as a specific type of relief that may be included in these suits. Moreover, under new Section 707(c) and (e), EEOC and the Attorney General have concurrent power (for the next two years) to bring "pattern or practice" suits. 2/ This Act amends Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e, et seq.) (Four copies of the new Act are supplied herewith.) The pertinent sections are effective immediately. 3/ The Act contemplates that EEOC will bring such suits gainst private employers and unions, and the Attorney General will do so against state and local government employers. - 3 - Thus, it is clear that Congress has envisioned the awarding of back-pay and similar relief, when appropriate, to the victims of discrimination in suits brought by private plaintiffs as well as in suits brought by representatives of the Government. And ity clearly contemplated that such awards be made in class actions. Thus, if the views of the defendant Company were to prevail, a district court would have the authority to grant back-pay on behalf of individuals and classes of individuals in suits brought by the EEOC and the Attorney General under Section 706, but would not have the authority to do so where the same agencies brought suits involving the more severe problems under Section 707. Such an anomalous result has no support in reason or policy and is con trary to the purpose and language of the Act. Georgia Power contends that back-pay should not be authorized because it is "speculative," "burdensome" and "unmanageable" to grant such relief to a class. This argument has been rejected by each of the appellate courts that has considered the question. 1 4/ The Bill which passed the House of Representatives limited relief under Section 706(g) to individuals named in the charge filed with EEOC. Sec. 706(h), H.R. 1746, 117 Cong. Rec. H 8480, 9542 (Sept. 15, 16, 1971). The Senate Bill contained no such provision, and the Senate view prevailed in conference. Sec. 706(g), Report of Managers, 118 Cong. Rec. H 1695, 1698 (March 2, 1972). - 4 - see. RoMaSOD v. P. LprUUr^. 444 F.2d 791 (4th Clr. 1971); Snroels V. Airlines. Inc.. 444 F.2d 1194 (7ch Clr. 1971); See also, imfred States v. Havea International CorB-. --- F.2d 4 EPD [CCHl 17690 at 5717 (5th Clr.. No. 71-1392. February 22. 1972). Indeed, the district covn:t In this case has already found that blacks have suffered significant monetary loss because of the Company's discriminatory employment practices (Finding of Fact 86) and awarded back-pay and retroactive seniority In the private cases which were consolidated with the Government's for the purpose of trial. Thus, the requested relief Is surely not speculative. The defendant Company suggests that procedural safeguards exist In private class actions which cannot pertain In pattern or practice suits under Section 707; and rely upon Robinson v. T..i11ard corn.. suara. for the proposition that monetary awards are not to be assured to all class members, but Individual rights to back-pay should be determined In an ancillaryproceeding. See. Georgia Power's Brief, p. 46. Yet. the procedure set forth In Pohlnson V. Lorlllard. supra, is precisely the one which we sought in this case (see Brief as Appellant, p. 65. fn. 62) an can be followed as readily In a pattern or practice case as in a class proceeding. - 5 - With regard to the Government's request for retroactive seniority for identified victims of discrimination, Georgia Power suggests at page 24 of their brief that such relief would be in conflict with Local 189 United Papermakers and Paper- workers v. United States, 416 F. 2d 980 (5th Cir. 1969), certiorari denied 397 U.S. 919 (1970), because this Court there rejected a theory of relief which would require that blacks displace incumbent white employees (the "freedom now" theory). See, Local 189, 416 F. 2d at 988. However, the "freedom now" theory rejected there called for the displacement (or bumping) of present employees from their current jobs. However, the retroactive seniority for the identified victims of discrimination which we seek in this case can be utilized only to fill an existing vacancy, not to create a vacancy by the displacement of an incumbent employee. Such seniority for rejected applicants together with back-pay simply pro vides for "a restoration of the situation, as nearly as possible to that which would have obtained but for the illegal discrimina tion." Phelps Dodge v. National Labor Relations Board, 313 U.S. 177, 194 (1940). Such relief is clearly authorized by Title VII. United States v. Roadway Express, ____ F. 2d ____ (6th Cir., 5/No. 71-1873, April 4, 1972).^ _5/ Retroactive seniority was granted by the district court to one of the individuals, a rejected applicant, whose case was consolidated with this case for the purposes of trial. That case was not appeale by Georgia Power, See, George Jones v. Georgia Power Company, Civil Action No. 14182, June 31, 1971, Decision, p. 62. „ 6 - 2. The Aptitude Tests Used by Georgia Power are Unlawful Under Title VII. Ignoring the undisputed fact that Georgia Power Company’s aptitude tests have screened out blacks at a rate thirty (30) times higher than they screen out whites (Gov. Ex. 12; see Brief as Appellant, p. 13, fn. 12), the Company and the Psychological Cor poration launched a broad scale attack on the EEOC Guidelines on... Employment Selection Procedures as being an unduly severe standard by which to measure the validity of the Company's tests. We show here that the legal standard they urge is incorrect and that there is no substance to their allegations as to the unreasonableness of the Guidelines. a. The Company asserts that "the appellants and the EEOC have the burden of proving that the standards [EEOC Guidelines] . . . are reasonable" (Georgia Power’s Brief, p. 30). This position is contrary to the well-established law in this area . As pointed out in our Brief as Appellant (pp. 52-53), the guidelines of an agency whose duty it is to enforce a given law are entitled to "great deference" by the courts, particularly as they pertain to expertise in fields other than the law, unless it is shown by the party contesting them that there is "compelling indications" that they are wrong. E.g. . Griggs v. Duke Power.C^, 401 U.S. 424, 434; - 7 - United States v. City of Chicago,^! U.S, 8, 10 (1970); Rgd LlQD Broadcasting v. FCC, 395 U.S. 367, 381 (1969). The cases cited by amicus for the proposition that an administrative interpretation will not stand if it is contrary to the legislative purpose (Amicus Brief, pp. 11-16) are not of assistance to the Company or amicus. For it is entirely consistent with the purpose of Title VII "to remove barriers that have operated in the past to favor an identifiable group of white employees over other employees" (Griggs v. Duke Power Co., supra, 401 U.S. at 430) and to hold unlawful a test which disqualifies proportionately thirty (30) times as many blacks as whites. In addition, by the Equal Employment Opportunity Act of 1972, Congress made substantial amendments to Title VII with respect to coverage and enforcement machinery. Although the Grigfts. decision and the EEOC Guidelines had been published for over a year, and were well known to the Congress,” no revision was made to Section 703(h) of the Act, the section on which the Guidelines were based aid Griggs was decided. Thus, Congress has in effect ratified the administrative interpretation of the Act. Ivanhoe Irrigation District, v. McCracken, 357 U.S. 275, 293 (1958); Brooks v. Dewar. 313 U.S. 354, 361 (1940). 6/ See Senate Report 92-415 (92d Cong., 2d Sess.), p. 5. - 8 b. The Company and the amicus argue that the iaiideliaaa are unduly severe (-'unreasonable, unrealistic and unworkable") and appear to suggest that the Ckjvemment is opposed to testing. We would merely refer on that score to Dr. Kirkpatrick, the Government's expert witness, who explained that the use of tests, if valid, is "the best answer to fair employment" (Tr. v. 3 p. 187). The Company and amicus arguments that the .Quidglinas. are unreasonable or unworkable are based primarily upon statements which are unsupported by legal or scholarly authority,- and upon a misreading of the Gî kfeljags themselves. The Psychological Corporation contends that requirement (b) of Section 1607.3 of the (Lytideljiysa is not consistent with Section 703(h) of the Act (pp. 18-19). This subsection (b) simply provides that if several job related selection methods are availalt, the one with the lesser discriminatory impact 7/ The authority cited most frequently „f%he^ to Che decislon^of the^upre.e ^ S f S t r l t a T s H f l E l f ’vlI bas;d'ln p « t - the (now) overruled S c l s i m of the Fourth Circuit. See. 84 Harv. L. Rev. at p. 1118-19, 1138-40. - 9 - must be used.^/ A company does not need to try all selection methods to see which has the lesser impact, but only must show job relatedness for any one it selects and then iiust use the method with the lesser impact on minorities. Similarly, the Company argues that the Guidelines, and the American Psychological AssociAtion's Standards ,l/'̂ only allow the use of the "correlation coefficients" technique of validation (Georgia Power’s Brief, p. 32). The Guidelines, however, plainly provide that empirical evidence of a test's validity may be shown by any study which uses "generally accepted procedures." EEOC Guidelines §1607.5(a) and (b) / 8/ This provision is, in any event, not in issue, since it is the contention of the Government and private plaintiffs that the tests have not been shown to be valid; not that the Company should use another method of selection which has a lesser adverse impact. 9/ Standards for Educational and Psychological Tests and Manuals, APA,,1966 (See footnote 16, p. 16 of the Brief for the United States as Appellant). 10/ Georgia Power states that the Guidelines were issued after their ^lidation study was begun (p. 29); however, the present Guideline's are only a revision of the previously issued Guidelines on Employment Testing Procedures of August 24, 1966, a full two years before they began their study. - 10 - Georgia Power also asserts that the Guidelines require them to prove that persons who were hired are better job per formers than people who were rejected by the test (Georgia Power's Brief, p. 33). However, the Guidelines specifically state that validation studies are acceptable where tests are "administered to present employees". Such a procedure is called a "concurrent" validation study, and is an accepted procedure. EEOC Guidelines, §1607.5(b)(1). Also, the Company argues that the Guidelines are unduly harsh" in the requirement of differential validation studies, jUe^, studies on minorities as a separate group (Georgia Power's Brief, pp. 31-32). This argument misstates the plain words of the Guidelines. Section 1607.5(b)(5) requires differential data and results on both minority and non-minority groups wherever "tech nically feasible." The term "technically feasible" is defined elsewhere in the Guidelines as: ***having or obtaining sufficient number of minority individuals to achieve findings of statistical and practical significance*** (§1607.4(b)). The reasons that the Company's study is insufficient on this point is that by its own standards enough blacks were - 11 - available in at least some of the job classifications so that a differential validation study was technically feasible (Co. Ex. 75; Gov. Exs. 5, 17; Tr. v. 6, pp. 92-94). Thus, the Company's validation study assumes that data for successful whites also reflects what the data would have showed for blacks if separate studies had been performed. This type of assumption was rejected by this Court in United States v. Jacksonville Terminal Co., 451 F.2d 418, 456 (5th Cir. 1971), certiorari denied. Nos. 71-1000, 71-1010, 71-1014, April 24, 1972. CONCLUSION For the foregoing reasons, and those set forth in our Main Brief as Appellant, we respectfully request that the decision below be reversed with respect to the use of aptitude tests and the awarding of back-pay, compensatory per-diem and retroactive seniority, and the case remanded to the district court for the entry of an appropriate remedial order. Respectfully submitted. JOHN W. STOKES, JR. United States Attorney DAVID L. NORMAN Assistant Attoimev General DAVID L. ROSE STEVEN B. GLASSMAH Attorneys, \ Department of Justice, Washington. D.C. 20530 Attorneys for the United States - 12 - IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 71-3447 UNITED STATES OF AMERICA, Plaintiff-Appellant and Cross-Appellee, V. GEORGIA POWER COMPANY, ET AL., Defendant-Appellee and Cross-Appellant. On Appeal from the United States District Court for the Northern District of Georgia Atlanta Division BRIEF FOR THE UNITED STATES AS CROSS-APPELLEE QUESTIONS PRESENTED BY GEORGIA POWER COMPANY AS CROSS-APPELLANT 1, Whether the requirement by Georgia Power Company that all employees and prospective employees must possess a high school diploma or the equivalent as a prerequisite for hire (except for traditionally black laborers'jobs),.promotion and transfer is illegal under Title VII of the Civil Rights Act of 1964 when such a requirement has a disproportionately - 13 - adverse impact on blacks as a class and has not been shovm to be a valid predictor of successful job performance, 2. Whether the findings of the court below that Georgia Power Company has engaged in a pattern and practice of racial discrimination in their hiring practices is clearly erroneous. THE BASIC FACTS 1. Georgia Power's Post-1963 Hiring Practices. The basic facts with respect to the defendant Company's post-1963 hiring practices were found by the district court (Findings 14-15, 20, 23, 29-45), They acei undisputed facts of record pertaining to the Company's hiring practices and are summarized in our Main Brief, pp, 6-8,17, and will not be repeated here. 2. The High School Diploma Requirement. The court below found that significantly greater numbers of blacks than whites do not have high school 1/ educations (Finding of Fact 72). In 1969, 82 percent of white 20 to 21-year-olds in the United States had W As in our Brief as Appellant, unless otherwise indicated, all "Finding of Fact" citations refer to the district court's June 30, 1971 Decision, - 14 - completed high school, but only 58 percent of the blacks in this age group had done so« In the southern states, in the 25 to 44-year-old age group, 64,7 percent of the white males had graduated from high school, while only 35,0 percent of the blacks had done so. Sixty-three percent of the white females in this age group graduated as opposed to 34,7 percent of the black females (Finding of Fact 72), In the Atlanta area, where a large part of Georgia Power's hiring is done, the most current figures show that this dispartity in educational achievement is also present. Of whites over 17, 70,7 percent had completed high school as compared to 46,2 percent of blacks (Finding of Fact 72), In 1960, Georgia Power Company imposed a mandatory requirement that all new employees have a high school education or the equivalent for employment. This require ment was not imposed on incumbent employees (Finding of Fact 16). Sometime in 1964, Georgia Power imposed the high school education requirement on Incumbent employees seeking to transfer from the traditionally black job classi fications of laborer, janitor, porter and maid to higher- paying jobs (Finding of Xact 18), Georgia Power Company employs large numbers of non- high school graduates, hired prior to 1960, who have progressed to journeyman or higher classifications. For - 15 - exanxple, in the Production Department and in the Atlanta and Macon Operating Divisions, there were 339 white employees, or 28.47. of the total number of white employees, working at journeyman levels, who did not have high school educations as of January 16, 1970 (Finding of Fact 23; Gov. 2/ Ex. 17). The evidence shows that at least 45 or 43% of the 106 foremen in the Atlanta and Macon Operating Divisions and the General Repair Shop, as of January 16, 1970, did not3/ have high school educations (Gov. Elx. 17, Co. Ex. 9). Moreover, of the total 788 employees in journeyman classifica tions in the Company's Steam Plants and the Atlanta and Macon Operating Divisions, 208 or 26% do not have high school educations. 2/ As in the Brief for the United States as Appellant, Tiled January 25, 1972, all references to Government Exhibits 14, 15 and 17 are to their supplemental editions. 3,/ Government Exhibit 17, as up-dated by Company Exhibit 9, affirmatively shows 45 individuals who are in the foreman classification without high school educationa For the remaining 61, the exhibits either indicate no high school education or no record (application). - 16 - Several of these white jouimeymen whose edueational level averaged 7th grade testified that they were able to perform their jobs despite their limited education, and that prior experience and outside study had aided them significantly in performing their duties (Finding of Pact 75; Tr. v, 7 pp. 54, 58, 63, 65, 69-70, 72-73), Moreover, several black employees without high school educations testified that they had taken home study courses, or that they had prior experience doing the type of work Georgia Power Company required in higher classifica tions. However, they hawe been prevented from progressing from laborer to those higher classifications because of their lack of a high school diploma (Finding of Fact 76), Georgia Power Company collected no data nor made any statistical study on whether or not the possession of a high school education is necessary for the performance of any or all jobs within the Company, or whether or not there is a statistically significant correlation between possession of a high school education and job performance (Finding of Fact 77), Georgia Power's Assistant Vice-President for Employee Relations, Mr. Hubert Joiner, testified on direct examina tion that he knew of employees who had been demoted due to their lack of education, i,e., they "were not able to read and comprehend the requirement of the job . . - 1̂ - (Tr. V. 4 p. 160). Upon further questioning, Mr. Joiner stated he could not cite specific instances of employees being demoted and that the real reason they were demoted is because they could not perform the job in question (Tr. V. 4 p. 221). Additionally, Mr. Joiner testified, many employees without high school educations have been able to perform these jobs (Tr. v. 4 p. 221). In support of their use of a high school education requirement, Georgia Power Company introduced the testi mony of two expert witnesses. The first such witness. Dr. William Hale, testified on direct examination that even though he had not performed any studies relating to the validity of a high school education requirement as a predictor of job success, he had generally observed that people who "drop-out" of high school lack such character istics as self-discipline, perseverance, and a sense of purpose (Tr. v. 6 pp. 8-14). On cross-examination. Dr. Hale admitted that most of his personal experience had been with white "drop-outs" and that he had not counselled many blacks (Tr. v. 6 p. 28-29). Also, Dr. Hale admitted that he knew of no research studies which have attempted to identify the number 18 - of high school "drop-outs” who exhibit the characteristics that he attributed to "drop-outs" on direct examination or would support his theory (Tr. v, 6 pp» 23-24), Moreover, Dr. Hale admitted that financial difficulty in the home can cause any individual to leave school prior to his graduation (Tr, v. 6 pp. 20). The second expert witness for the Company on the high school education requirement was Dr. Harry Cowart, an expert in reading. Dr. Cowart testified that he was con tacted by Georgia Power and asked to determine readability levels of various manuals in use at the Company for presenta-4/ tion at the trial of this cause (Tr. v. 6 pp. 180-181). Dr. Cowart stated on direct examination that these manuals had a readability level of at least high school (Co. Ex. 103; Tr. V. 6 p. 190). On cross-examination. Dr, Cowart stated that the formulas for readibility level only purport to show that in any given sample of the general population, one-half of the sample should read above the specified level and 4 / The results of Dr. Cowart's work were not completed until the morning that he testified, the next to last day of trial (Tr. v. 6 p. 183). - 19 - one-half would read below It (Tr, v. 6 p. 191-192). Dr, Cowart also testified that the formilas are designed for the general population and would not take into account an individtaal' s specific field of endeavor, his acquired femiliarity with certain tenh*ical words or his previous experience (Tr. v. 6 p. 194-200). Also, Dr. Cowart said that the readibility formulas do not account for an individual's motivation, self-drive,or interest in what he is doing (Tr. v. 6 p. 200). SUMMARY OF ARGUMENT I The findings of the district court that Georgia Power Company continued to engage in a pattern of racially discriminatory hiring practices were based on both the testimony of many witnesses, and clear statistical evidence. They have not been shown by the Company to be "clearly erroneous". See, Chaney v. City of Galveston, 368 F.2d 774 (5th Cir. 1966). The Company does not (and could not) dispute the existence of a formal system of segregation at its facilities until July 29, 1963, which consisted of hiring blacks only for the lowest paying - 20 - laborers' jobs, with no whites being assigned to such jobs. The undisputed facts also show that the workforce at Georgia Power is only 7% black, whereas the black popula tion of the State is about 28% and about 33% of the job applicants at the Company are black. Moreover, every black hired for a job within the collective bargaining agreement was hired for a traditionally black, low-paying laborers job until after this lawsuit was filed in January, 1969, while a majority of white applicants were hired for the higher-paying, traditionally white jobs. This evidence, plus the testimony of numerous black applicants who met the Company's stated requirements and who applied when there were vacancies but were not hired, overwhelmingly confirm the continued racial pattern of the Company's hiring practices. II The use of a high school education requirement for hire, promotion and transfer which has an adverse discriminatory impact and has not been shown to be a valid predictor of job success is unlawful under Title VII of the Civil Rights Act of 1964. Griggs v. Duke Power Company, 401 U.S. 424 (1971). In the area where the Company operates, approximately 21 - 707o of the whites but only about 40% of the blacks have high school diplomas. Almost one-half of the foremen at Georgia Power successfully perform their jobs without high school diplomas and about one-fourth of the employees in skilled journeyman positions also are successful job per formers without high school diplomas. The Company has failed to show that the high school education requirement is needed as a "business necessity" or as a predictor of ultimate job success; and the holding of the Supreme Court in Griggs v. Duke Power Co., supra. is dispositive on this point. ARGUMENT I THE DISTRICT COURT FINDING THAT THE GEORGIA POWER COMPANY CONTINUED TO DISCRIMINATE AGAINST BLACK PERSONS IN ITS HIRING PRACTICES IS SUPPORTED BY THE EVIDENCE; AND THE RELIEF ORDERED WAS A P P R O P R I A T E . ______________ The district court found that Georgia Power had perpetuated a pattern and practice of racial discrimination in its hiring policies and in the processing of black applicants (June 30, 1971, Decision, pp. 46-47, 65). Georgia Power Company asserts in its Brief that the court's - 22 - finding in this regard was clearly erroneous and that the remedy fashioned by the trial court was unwarranted and unsupported by the evidence (Georgia Power's Brief, p. 18). A. The District Court's Findings Were Supported by the Evidence ________ The District Court's Pre-trial Order of December 22, 1970, limited the maximum number of rejected applicant witnesses that the Government could present to 20. (Pre trial Order p. 4), Without such a limitation, the Govern ment would have presented the testimony of approximately 100 witnesses to establish Georgia Power's pattern and practice of discriminatory hiring (Tr. v. 7 p. 95-96). Government Exhibit 19 is a sunmary, in chart form, setting forth the names of the identified rejected black applicants, both those who testified and those who would have been called, the dates on which they applied, their qualifications and the name and date of subsequently hired individuals at the locations where the witness applied. In addition to the 20 Government witnesses, one of the private plaintiffs, whose case had been consolidated 5/ with this one for trial purposes, testified that he also George Jones v. Georgia Power Company. Civil Action No. 14182. - 23 - had been rejected. The district court found Georgia Power had discriminated against him by "failing to grant him the opportunity to qualify for a position for which he applied, while allowing whites to do so," and the court ordered suitable relief, (June 30, 1971, Decision, p, 67), The Company did not appeal the lower court's ruling in the Jones case. It is well-settled that in order for a reviewing court to terra the findings of a trial court sitting without a jury "clearly erroneous," ". . . it must be clearly demonstrated that such findings are without adequate evidentiary support in the record, or were induced by an erroneous view of the law, and the burden . . . is on the one attacking them" The burden of showing that a finding of the trial court was erroneous is a particularly difficult one, where, as here, the lower court has had the opportunity to ". . , see and hear witnesses, observe their demeanor on the stand, and thereby . . . judge , . . their credibility," Galena Oaks Corp. v. Scofield. 218 F.2d 217, 219 (5th Cir. 1954) Chaney v. City of Galveston. 368 F.2d 774, 776 (5th Cir, 1966); Lentz v. Metropolitan Life Insurance Co.. 428 F,2d 36, 39 (5th Cir. 1970). - 24 - As previously stated, the trial court heard the oral testinjony of 21 Individuals on this issue, each of whom met the Company's stated qualifications and applied to Georgia Power for a job when there were jobs available. Even apart from the testimony of the live witnesses, the undisputed facts, taken from the Company's own records, confirm the continued pattern of hiring discrimination, after the formal end of segregation in 1963. Although the Company's applicant flow is 33Z black, and the State is 28% black, only 7% of the Company's eo^loyees were black as of January 16, 1970 (Findings of Fact 3, 38 and 46). Of the 89 blacks hired between July 2, 1965, and September 6, 1968, 88 or 99% were placed in jobs which paid a monthly salary of less than $400.00. In comparison, of the 788 whites hired during this period, only 20 or 25% were assigned to such low paying jobs (Finding of Fact 24). - 25 - Even more startling, perhaps, is the uncontroverted fact that the Company had never, at any location, hired a black for any collective bargaining job except for the traditionally black "laborer" Jobs until after the institu tion of this lawsuit, while the great majority of the white employees were intially assigned to higher paying, higher opportunity white jobs (Gov, Ex, 15; Co, Ex, 9; see Main Brief, pp, 6-9), Such facts "tell much" and may well be sufficient to compel a finding of continuing discrimination. United States V, Hayes International, 415 F,2d 1038, 1043 (5th Cir, 1969); Bing v. Roadway Express Co,, 444 F,2d 687 (5th Cir, 1971); Jones v, Lee Way Motor Freight, 431 F,2d 246 (10th Cir, 1970), certiorari denied, 401 U,S. 687, They are particularly persuasive in the context here of a shown pre-act pattern of discrimination. United States V, West Peachtree Tenth Con),. 437 F,2d 221, 227 (5th Cir. 1971). Clearly, they are sufficient to sustain a finding of continuing discrimination which is also supported by live testimony of qualified, but rejected black applicants. United States v. Ironworkers, Local 86, 443 F.2d 544, 549- 552 (9th Cir. 1971), certiorari denied, 404 U,S, 984 (1971), - 26 The Company contends that the trial court ignored the charts presented by the Company which compared the qualifi cations of each rejected applicant with other unsuccessful applicants and persons hired. However, the district court properly declined to give weight to charts which compare the qualifications of the rejected applicants who testified with other unsuccessful applicants. Those charts do not show the race of the other unsuccessful applicants and the district court found generally that the application rate of blacks at Georgia Power is approximately one out of every three (Finding of Fact 38). Thus, approximately 33% of these other rejected applicants were probably blacks who might also have been rejected for discriminatory reasons. Moreover, the charts do not show that the other unsuccessful applicants were not offered a job with the Company and decJ-ded to accept employment elsewhere or not to work at all. Georgia Power Company's Brief states that no one was hired on the same date that nineteen of the black witnesses applied (Georgia Power's Brief, p. 21). However, Government Exhibit 19 shows the whites who were hired shortly after the rejected applicants applied. Z./ l_l Georgia Power contends that the 90 day application period is too long (Georgia Power's Brief, p. 22). In the district court however, the 90 day period had been accepted by both parties as a reasonable rule of thumb time period for all the parties to use (See, for example, Co. Exs. 12 and 13, Gov. Ex. 19). - 27 - B. The Relief Ordered Was Appropriate, Insofar as it Went._______________ In cases of this type courts have the duty to correct, insofar as possible, the effects of past discrimination. Louisiana v. United States. 380 U.S, 148, 154 (1965); see also. Local 53. Asbestos Workers v. Vogler. 407 F.2d 1047, 1053 (5th Cir. 1969); United States v. Hayes International Corp.. 415 F.2d 1038, 1045 (5th Cir. 1969). Also the courts have a duty to redress the denial of the equal employment opportunity rights, which are Congressionally secured by exercising its remedial powers to the fullest extent. See, Culpepper v. Reynolds Metals. 421 F.2d 888, 891 (5th Cir. 1970). Recently, this Court explained its position on remedy in these cases by stating: This Court has continuously given a wide scope to the Act [Civil Rights Act of 1964] in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities. Rowe v. G. M. Corp.. ___ F. 2d ___, 4 EPD [CCH] t7715 at 5705 (5th Cir., No. 28959, March 2, 1972) (fn. omitted). Section IV of the district court's Order of September 27, 1971, sets forth the relief with respect to hiring discrimination. 28 It simply provides a procedure whereby the Company must offer the individual named victims of discrimination who testified at trial the next available jobs for which they are qualified on a first-in, first-out basis. In addition, the court set up a procedure whereby additional qualified rejected applicants may be given relief (September 27, 1971, Order, Section IV (A)(2) p. 8). Under this procedure the Government first is allowed access to the Company’s records in order to ascertain the names of other qualified individuals who may have been denied employment by reason of race. Next the United States and Georgia Power are instructed to attempt agreement on which of the identified persons are entitled to relief. If no agreement can be reached between the parties, the matter will again be submitted to the district court for resolu tion (September 27, 1971, Order, Section IV (A)(2), p. 8). Nowhere in the trial court's order does it suggest that the Company must hire any individual who has not been found qualified for en^loyment either by the agreement of the parties or by the court's resolution. Obviously, race is not the only qualification for employment under this formula, as is suggested by the Compeiny's brief (Georgia Power's Brief, p. 23). The Government has never suggested that the Company - 29 - should be directed to hire any individual who does not have the basic ability and qualifications actually needed for employment at Georgia Power. Georgia Power contends that the laborer's job is the traditional entry-level job for both black and white employees and argues that the court erred in permitting blacks to decline such positions (Georgia Power's Brief, pp, 16- 17, 23). This allegation is refuted by the statistics. Of the 6GDwhite employees hired between July 2, 1965 and January 16, 1970 in the steam plants, the General Repair Shop and the Atlanta and Macon Operating Divisions in collective bargaining unit jobs, 542 or 90%, were initially assigned to entry level jobs higher than laborer jobs (Finding of Fact 23). - 30 II THE DISTRICT COURT CORRECTLY HELD THAT THE COMPANY'S HIGH SCHOOL DIPLOMA REQUIRE MENT HAS A RACIALLY DISCRIMINATORY IMPACT AND IS NOT REQUIRED BY BUSINESS NECESSITY AND IS THEREFORE VIOLATIVE OF TITLE VII. In 1960, Georgia Power Company imposed a mandatory requirement that all new employees have a high school education or the equivalent. This requirement was not imposed on incumbent employees (Finding of Fact 16), Sometime in 1964, Georgia Power imposed this high school education requirement on incumbent employees seeking to transfer from the job classifications of laborer, janitor, porter and maid (traditionally black jobs) into the higher paying (traditionally white) jobs (Finding of Fact 18). This high school education reqid.rement, it was found by the district court, has a substantial and dis proportionate impact on black employees and job applicants (Finding of Fact 72). In fact, in the Atlanta area, the statistics show that for males over 18 years of age, 70,7 percent of the whites had finished high school while only 46,2 percent of the blacks had (Finding of Fact 72), - 31 - The Supreme Court in Griggs v. Duke Power Company, 401 U.S. 424 (1971) was faced with a virtually identical requirement. Ruling upon the facts present at IXike Power Company, the Supreme Court, in an unanimous opinion by the Chief Justice, held that the use of a high school require ment which has a disproportionate racial impact and has not been shown to be a predictor of ultimate job success con troverted the Congressional mandate of Title VII. The Court explained (401 U.S. at 431): Vlhat is required by Congress is the removal of artificial, arbitrary, and xmnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. The Act proscribes not only overt discrimina tion but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited, (emphasis supplied) With respect to the specific issue of the high school education requirement the Court ruled (401 U.S, at 433): History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the comoionsense proposition that they are not to become masters of reality. - 32 - Georgia Power's use of the high school education requirement is generally similar to Duke Power s except for two factual differences. First, at Duke Power, the lack of a high school education was never an absolute bar to the employment of all applicants as it was at Georgia _8/Power from 1960 to 1964. New hires at Duke Power could be continuously employed in the Labor Department without a high school education or tests. The second difference is that at Duke Power, since September, 1965, employees who were assigned to the Labor Department and lacked a high school education could qualify for transfer to better jobs upon the passage of the required tests. Georgia Power, after 1964, required that employees who wished to transfer from a laborer's job, and new employees for all jobs except laborer-type jobs, have both a high school education and pass the tests. Thus, the requirements at Georgia Power are more stringent than they were at Duke Power. 8/ After 1964 at Georgia Power, individuals could be employed in the labor-type jobs without meeting this prerequis ite. - 33 - In ruling that the high school education requirement was not shown to be a business necessity, the district court in this case, in following the Griggs decision, reasoned: Here, covtntless employees without the diploma have mastered the need through self-study, through adult education courses, and through perseverance and have advanced to the highest technical levels in the company. In such context, the high school education requirement cannot be said to be reason ably related to job performance. This is not to say that such qualities are not desirable — the need is there in this company's businwss; it simply means that the "diploma test" cannot be used to measure the qualities. Many high school courses needed for a diploma (history, literature, physical education, etc.) are not necessary for these abilities. 9/ Georgia Power suggests that the district court imposed a standard that would require the Company to prove that "it was Impossible for any person to successfully per form without a high school education" (Georgia Power's Brief, p. 24) (emphasis in original). However, the court never stated that such a standard was required and the facts do not support this theory of the court's reasoning. Approximately one-half of Georgia Power's foremen do not possess high school diplomas and approximately one-fourth of its employees 9 / June 30, 1971, Decision, p. 53-54 - 34 - in the skilled journeyman positions also do not have W/ high school diplomas. The Supreme Court in Griggs has ruled that business necessity is the test upon which educational requirements rise or fall. Griggs, supra 401 U.S. at 431. The Fourth Circuit, citing the Supreme Court in Griggs. has further defined the "business necessity" test, the passage of which is required to support a business practice which has a disproportionate racial impact. In Robinson v. P. Lorillard. Corp.. 444 F,2d 791 (4th Cir. 1971), the Court set forth the following test (at 798): The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish it equally well with a lesser differential racial impact. The high school educational requirement in use at Georgia Power has not been shown to meet any part of this test. The "business purpose" which is put forward See, p. 1 6 supra. > 35 - by Georgia Power for the use of the educational require ment relates to the ability of employees to read and com prehend manuals in use at the Coups^y. However, the evidence, both testimonial and statistical, shows that a large percentage of the Company's workforce is able to function satisfactorily without high school diplomas. Georgia Power states that the district court should have concluded that employees without high school diplomas were not promoted at the same rate as employees with high school educations (Georgia Power's Brief, p. 26). In support of this contention, Georgia Po%rer cites the following statistics: Since 1960, only 22 of the 106 non-high school graduates in the Production Departments have received promotions. Those 22 men have received a total of 23 promotions, while high school graduates in the Production Department have received a total of 688 promotions (Find ing of Fact 74). 11/ It would be difficult to draw any conclusions from these statistics. First, the 688 promotions shown for the high school graduates were shared 11/ Georgia Power's Brief, p. 26. - 36 - by 727 employees (Finding of Fact 74). Next, the other statistical evidence indicates that most of the non-high school graduates did not receive promotions because they were already at the top of their lines of progression by 12/ 1960. Also, it has not been shown that these individuals were not promoted because of their lack of a high school education. One of the Company's expert witnesses who was called to testify on this issue. Dr. William Hale, testified that he had generally observed white high school "drop outs" lacked such characteristics as self-discipline and preseverance, but he knew of no research that would sub stantiate his theory and he had not performed any such studies himself (Tr. v. 6 pp. 8-14, 23-24). The other expert witness offered by the Company, Dr. Cowart, testified that the average reading level of the Company's manuals was high school level or higher. However, Dr. Cowart further testified that these were average levels and that one-half of the population could 12/ Finding of Fact 74 states that 80% of the employees in skilled jobs were hired prior to 1950. Thus, logically speaking, most of these would have been near the top jobs in their lines of progression prior to 1960. - 37 - read above the specified level and one-half below. Also, he said that the formulas he used to determine reading level do not account for a particular Individual's familiarity with technical words, his past experience or his motivation or self-drive. Thus, it is clear that the readability level for the Georgia Power manuals do not predict Job success for a large part of the general population and at least one- half of the population could perform the jobs at the Company without a high school diploma. Finally, the EEOC Guidelines on Employee Selection Procedinres define the word "test" to include " . . . specific 11 /I f tZ L feducational. . . requirements. . . The Guidelines permit the use of a "test" only if it is supported by "empirical data" demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job...." EEOC Guidelines. supra. at 51607.4(c). _n/ See 51607.2, EEOC Guidelines. 33 Fed. Reg. 12333, 29 C.FoR. 1607 (Aug. 1, 1970) (A copy is reproduced in Appendix B of the Brief for the United States as Appellant, filed with the Court on January 25, 1972). - 38 - Since no such empirical data was presented by Georgia Power, the use of its educational requirement is inconsistent with any ueading of the Guidelines. CONCLUSION For the foregoing reasons, we respectfully urge that the decision below be affirmed insofar as it granted relief. Respectfully submitted. JOHN W. STOKES, JR. United States Attorney DAVID L. NORMAN Assistant Attorney General DAVID L. ROSE STEVEN B. CLASSMAN Attorneys Department of Justice, Washington. D. C. 20530. Attorneys for the United States CERTIFICATE OF SERVICE I hereby certify that I have served two copies of the foregoing Reply Brief for the United States as Appellant and Brief as Cross-Appellee on counsel of record for the other parties at the addresses shown below, by depositing said copies, postage pre-paid, in the United States mail on this 17th day of April, 1972: J. Lewis Sapp, Esquire Constangy & Prowell 1900 Peachtree Center Building 230 Peachtree Street Atlanta, Georgia 30303 Robert L. Mitchell, Esquire Bullock, Young, Mitchell and Fink 18A1 First National Bank Building Atlanta, Georgia 30303 Morris J. Bailer, Esquire 10 Columbus Circle Suite 2030 New York, New York 10019 David Blasband, Esquire Linden and Deutsch 110 East 59th Street New York, New York 10022 Department of Justice Washington, D. C. 20530 Attorney for Plaintiff-Appellant