United States v. H.K. Porter Company Brief for Plaintiff-Appellant

    No. 27,703

i IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

i
UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.

H. K. PORTER COMPANY, ET AL.,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR THE UNITED STATES

JERRIS LEONARD
Assistant Attorney General,

MACON L. WEAVER
United States Attorney,

GARY J. GREENBERG 
JOHN A. BLEVEANS 
THOMAS R. EWALD 
Attorneys,
Department of Justice, 
Washington, D. C. 20530.



TABLE OP CONTENTS

Questions Presented ---------------------------------

Statement --------------------------------------------
Proceedings Below ---------------------------
Summary Statement of the Case --------------
Summary of the Evidence Presented ----------

1. The Connors Steel Plant and
its Employees ---------------------------

2. Employment Practices at the
Connors Works ---------------------------

Argument:
Introduction and Summary --------------------

I. Title VII Imposes an Obligation on 
those Subject to Its Provisions To 
Correct and Revise Employment 
Practices Which Carry Racially 
Discriminatory Pre-Act Policies 
Into the Post-Act Period ---------------

II. The Job Seniority and Transfer Pro­
cedures Discriminate against Incumbent 
Negro Employees Hired Before October 
1962 and Are Not Justified by any 
Compelling Business Necessity ---------

1 . Tne employment opportunities
of Negroes hired before October 
1962 have been limited by practices 
which perpetuate the racial disa­
bilities imposed before that date -

2. Title VII requires the elimination
of employment practices which pre­
vent Negroes from having employment 
opportunities which are comparable 
to their white contemporaries with 
equal qualifications --------------

Page
1

3

3
5

11

11

13

27

30

45

45

49



Page
3. The job seniority and transfer 

procedures are not justified by 
any compelling business necessity ----- 56

III. The District Court Should Be Required
To Order Affirmative Relief Sufficient to 
Eliminate the Unnecessary Present Effects
Of Past Discrimination---------------------  62

Conclusion ----------------------------------------------  68

Appendix A ----------------------------------------------  1A

Appendix B ----------------------------------------------  IB

Appendix C ----------------------------------------------  1C
CITATIONS

Cases;

Anderson v. Martin, 375 U.S. 399 (1964) ------- 34
Bethlehem Shipbuilding Corp. v. NLRB,
— 114 F .2d 930 (1st Cir., 1940) -----------  44

Dobbins v. Local 212, IBEW, 292 F. Supp.
41TTS.D. O h i o ) -------- ----------------------  28,3 5,

37,48,65

Houston Maritime Ass'n., Inc., (Local 1351 
Int'1. Longshoremen*s Ass'n.), 168 N.L.R.B.
No. 83 (1967)-------------------------   44

Gaston County v. United States, U.S.
No. 701, O.T. 19'68 (June 2, 1969) -------------  45

Goss v. Board of Education, 373 U.S. 683 
- J I 96 3) -------------------------------   34

Griggs v. Duke Power Co., 292 F. Supp.
2%lkEiN.C.,1968~.) appeal pending (No. 13,013,
4th Cir.) ---------------------------------------  43

Guinn v. United States, 238 U.S. 347 (1915) --  32

- ii



Page

Jones v. Mayer Co., 392 U.S. 409 (1968) ------- 27

Lane v. Wilson, 307 U.S. 268 (1939) -----------  33,35,45
Local 53, Asbestos Workers v. Vogler,
— 407 F.2d 104? (5th. Cir'77 1969) ---------------28,32,36,

37,43,53,62,65

Local 189. United Papermakers v. United
States, — ------------ — — — .TTZTZr— ----- 28,30,32,
------  40,41,42,47,52,55,

56,57,58,59,62,64,
65

Meredith v. Fair, 298 F.2d 696
-- (5th cir.,“ 1952) -------------------------------- 45

NLRB v. H. E. Fletcher Co., 108 F.2d 459,
— % 5 6 (1st Cir.,' 1939) ---------------------------- 44

NLRB v. Local 269, IBEW, 357 F .2d 51
^3d Cir., 1966) --------------------  44

NLRB v. Newport News Shipbuilding & Dry 
—  pock Co., 308 U.S. 241 (1939) ------ ---------  44
NLRB v. Pennsylvania Greyhound Lines, Inc.,
— 3U3 U.S. 2bl (193b) — ----------------J------  44

Ross v. Dyer, 312 F . 2d 191 (5th. Cir. 19 6 3) ---  45

Scott & United States v. Young, F. Supp , No.
— 3850, July 10, iy'69, E.D. Va. ---------------- 35

Quarles v. Philip Morris, 279 F. Supp. 505 „ .
-(E7D7 va., 1968) —  - ------------- - 28,40,42,

43,47,54,55,56,59,65

United States v. Duke, 332 F.2d 759
(5th Cir. 1964) -------------------------------  45

United States v. Louisiana, 225 F. Supp. 353 
— (E.D. La."T9 6 3), aff'j” 380 U.S. 145 (1965)-- 45,63

United States v. Medical Society of South
Carolina^ 95 F . Supp. l45 (D. S .C ., 1969)---- 35

iii



Page
United States v. Sheet Metal Workers,

280 "F. S'upp. 719 (E.D. Mo. 1968),
appeal pending (No. 19,316, 8th Cir.) ------- 43

Vogler v. McCarthy, Inc., 294 F. Supp.
— T047 (E.D. La . ,  1967')“ --------------------------------------  37,47,

Whitfield v. United Steelworkers of America, 
— I58TrT"Supp. 430 (S.D. Tex,'1997), aff'd. 

263 F . 2d 546 (5th Cir.), cert. den. 360 
u.s. 902 (1959) ----------------------------

U .S . Constitution, Statutes & Rules Involved:

U.S. Constitution:
Fourteenth Amendment -----------------------  33,44

Fifteenth Amendment ------------------------  32,33,44

Civil Rights Act of 1964:
Sec. 703(a), 42 U.S.C. 2000e-2(a) ---------  31
Sec. 7 0 3(a)(1 ), 42 U.S.C. 2000e-2(a)(1) --  50
Sec. 7 0 3(a)(2 ), 42 U.S.C. 2000e-2(a)(2) --- 51,65
Sec. 7 0 3(c)(1 ), 42 U.S.C. 2000e-2(c)(1) - 50
Sec. 7 0 3(c)(2), 42 U.S.C. 2000e-2(c)(2) --- 51
Sec. 7 0 3(h), 42 U.S.C. 2000e-2(h) ----- 63
Sec. 703(jj, 42 U.S.C. 2000e-2(j ) ----- 64
Sec. 707, 42 U.S.C. 2000e-6---------------- 3

Fed. Rules App. P., Rule 4(a) ------------------ 4

29 U.S.C. 1 5 8(a)(2) ----------------------------- 44

Miscellaneous:
110 Cong. Rec. 1599-1600 (February 1, 1964) --  39

EEOC Guidelines on Employment Testing
Procedures (1 9 6 7) ------------------   63

Hearings on S. 773 Before the Subcommittee 
on Employment and Manpower, Senate Committee 
on Labor and Public Welfare, 88th Cong.,
1st Sess., 1966-119 (1963) -------------------  4°

iv



Page
H.R. Rep. No. 570, 88th Cong., 1st Sess.,

2-4 (1963) ---------------------------------  ^0
H.R. Rep. No. 914, 88th Cong., 1st Sess.,

Part II 27 (1963) -------------------------- 36,39
Note, 80 Harv. L. Rev. 1260, 1277 (1967) ---  65

S. Rep. No. 86 7, 88th Cong., 2d Sess.,
3 (1964) --------------------------------------  39

Cooper and Sobol, Seniority and Testing under 
Fair Employment Laws: A General Approach to 
Objective Criteria of Hiring and Promotio~
63 Harv. L.Rev. at pp. 1 6 2 3 ---------------  55*65

v



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 27,703

UNITED STATES OF AMERICA,
Plaintiff-Appellant, 

v.
H. K. PORTER COMPANY, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE NORTHERN DISTRICT OF ALABAMA

QUESTIONS PRESENTED
Prior to October, 1962, the defendant employer 

hired and assigned Negroes only for low-paying jobs 
in Negro lines of progress and reserved the higher 
paying, more desirable jobs for white employees in 
all white lines of progression. The lines of pro­
gression were merged on October, 1962, on the basis



of rates of pay, so that virtually all the "Negro" 
jobs were placed below all of the "white" jobs; and 
a system of seniority based upon service in particular 
jobs was instituted, so that, with one exception, 
every white employee in the plant was treated as 
"senior" to every Negro employee for purposes of pro­
motion, although the Negroes were senior in length 
of service in the plant.

The issues thus presented are:
1. Whether, in light of the admitted past 

practices of racial discrimination, the district 
court erred in holding that a seniority system based 
upon service in a particular job which does not give 
qualified incumbent Negro employees credit for length 
of service in Negro jobs in competing for better­
paying white jobs is lawful under Title VII.

2. Whether, having established a departmental 
structure which placed most of the lower-paying, 
formerly all-Negro jobs in some departments with few 
opportunities, and most of the formerly all-white 
jobs in departments with higher opportunities, the

- 2 -



district court erred in concluding that the employer 
may lawfully condition transfers of Negro employees 
from low-opportunity to high-opportunity departments 
on (a) loss of all accrued seniority; and (b) success 
on aptitude tests which were not taken by their white 
contemporaries who now hold jobs and progress in the 
high opportunity departments.

STATEMENT
Proceedings Below

This action was commenced on June 23, 1967, by 
the United States pursuant to Section 707 of Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. 2000e-6, 
against the H. K. Porter Company, Inc. ("the company"). 
(See, App. 1, p. 11.) The Complaint alleged that the 
company discriminates against its Negro employees with 
respect to the compensation, terms, conditions, and 
privileges of their employment on account of their 
race ( Para. 5 ). The Complaint further charges that 
the company classifies Negro employees in a way which 
deprives them of employment opportunities on account 
of their race ( Para. 6). Injunctive relief was sought

3



barring such discrimination in the future (Para. 1).
An Amended Complaint, filed on August 7, 1967, added 
as a party defendant the United Steel Workers of 
America ("the union"), which represents the employees 
of the defendant company at its Connors Works in 
Birmingham, Alabama (see, Amended Complaint, Para. 7)
The Amended Complaint prayed that the union be enjoined 
from adversely affecting the employment opportunities of 
Negro employees on account of their race and from joining 
with the company to engage in prohibited discrimination

(Para. 1).
After an eight-day trial in August, 1968, the 

district court (Allgood, J.) entered an order and 
opinion on December 30, 1968 (296 F. Supp. 40) denying 
substantially all of the relief sought by the govern­
ment (296 F. Supp. at 119-121). Thereafter, on Janu­
ary 15, 1969, the court denied the government's motion, 
filed under Rule 52(b) of the Federal Rules of Civil 
Procedure, to delete Part III of the court's opinion 
(see, App. 3, p. 1596 ). A timely notice of
appeal was subsequently filed on March 14, 1969 (see 
App. 3, p. 1597 ). See Rule 4(a), Fed. R. App. P.

4



Summary Statement of the Case
The H. K. Porter Company employs some 729 pro­

duction and maintenance workers, of which 418 are 
white and 321 Negro, at its Connors steel plant in 
Birmingham, Alabama (see, infra, fn. 5, p. 10). These 
employees, who are represented by Local 2250 of the 
United Steelworkers, are organized into 15 seniority 
departments (see Appendix A to this brief, infra) plus 
a labor pool which is not involved in this appeal.
Prior to October 1962, certain lower-paying, menial 
jobs in the plant were reserved exclusively for Negroes, 
and the rest were open only to white employees (see, 
Appendix A, infra, p. A-l; App. 2, pp. 531-2, 582-3,
621, 660-1, 735-6; App. 3, 1166-1169). In October 1962, 
in an attempt to comply with Executive Order 10925,
26 Fed. Reg. 1977 (1961), prohibiting racial discrimi­
nation by government contractors, the company set up 
the present departmental and seniority systems (see,
PI. Ex. 25, 26).

Most of the Negro jobs were placed in the mill 
auxiliary, finish and fabricating departments, along 
with only a handful of higher-paying white jobs (see,

5



Appendix A, infra, p. A-l) . Most of the 

white jobs were placed in the electric furnace, 
eletrical, mill tonnage (or rolling), and mechanical 
departments, along with a few Negro jobs (Ibid.).

Within all but one of the fifteen new departments 
the jobs are arranged in a single line of the progression 
(Ibid.). The arrangement of jobs within each line was 
based exclusively on existing rates of pay and, thus, 
virtually all the Negro jobs in each department were 
placed at the bottom of their progression line (App. 3, 1168-9)".

Some 276 of the company's present Negro employees 
were hired prior to the 1962 reorganization of the plant 
( PI. Ex.3). More than 15°L of them are still in the lower- 
paying jobs which had previously been reserved for Negroes, 
and most of these are in departments offering minimal 
opportunity for advancement (Ibid.).

2/

1/ To illustrate the lack of advancement opportunity 
in predominantly Negro departments, there have been only 
two permanent vacancies in higher ranked, traditionally 
white jobs in these three departments since October 1962
(see, PI. Ex. 3; Def. Ans. to Interrog., 7, 20, 21 
(3d set)).
2/ In nine of the new progression lines the highest- 

paying Negro job was placed below the lowest-paying white 
job. Three other lines consisted only of white jobs 
(See, Appendix A, infra, p. A-l).

6



The company has maintained, since sometime prior 
to October 1962, a promotional policy based upon service 
in a particular job (Pi. Ex. 29, p. 6; App. 2, pp. 840-41; 
App. 3, pp. 1145-49, 1158-59, et seq., 1165-67, 1168-74). 
Within each department, the employee who was the first 
to reach a given job is the first one eligible to advance 
to a vacancy in the next higher-rated job category 
(App. 1, pp. 138-139). Since, when the departments 
were integrated, virtually all Negro employees were 
placed below all white employees in their respective 
lines of progression (App. 3, pp. 1168-69), the senior 
most Negro employee was treated as junior to the junior most 
white employee. With one exception, every white employee 
in the plant, regardless of length of service, was 
treated as senior to e^ery Negro employee, joist as if

7



the plant had retained its segregated lines (App. 1, 
pp. 142-144). 0n the otlrier hand, Negroes who
had been relegated to the low-paying menial jobs, 
regardless of their ability, were forced to remain 
always behind both their white contemporaries and the 
white employees who were junior to them in length of 
service.

The pre-Act discrimination against Negro employees 
has been further perpetuated by the company's restric­
tions upon transfers into higher opportunity departments. 
Under the system in effect since October, 1962, an 
employee, upon transferring into a new department, must 
forfeit all seniority and begin as the bottom man in
his line of progression. (App. 2, pp. 599-600; 644-645,

_3/
691-93, 806-09, 891; App. 3, pp. 1013-14, 1279). Thus, Negro

3/ Prior to the negotiation of the 1965 collective 
bargaining agreement, an employee who transferred and 
then wishes to return to his former department, or was 
required to do so by a reduction in force, could not 
regain his old seniority, but was laid off or had to 
start over again at the bottom of his former line of 
progression. This additional deterrent to transfer 
was abolished in October 1965, with the institution 
of "bumping-back" privileges (see, PI. Ex. 6, p. 35).

8



employees, particularly the older ones, are inevitably 
deterred from transferring to higher-opportunity 
departments. And those who do transfer must wait for 
advancement behind whites of less tenure who achieved 
their preferred status not because of superior ability, 
but solely because of their race.

Since October 1962, tests which differ somewhat 
from department to department, have been required of 
all previously untested employees seeking inter­
departmental transfers (App. 1, pp. 309-311; App. 2, 
pp. 596-97, 874-76).Many white employees who have never 
been tested continue to hold high-rated jobs in the 
more desirable departments, while all Negro employees 
hired prior to October 1962 must undergo testing for 
entry level jobs in the same departments (App. 2, 
pp. 874-876; App. 1, pp. 183-186).

On the basis of these facts, the district court 
found that identical standards and requirements for 
promotion and transfer have been applied to Negro 
and white employees since 1962 (296 F. Supp. at 61, 

89-91).
9



Emphasizing the fact that every line of progression 
contains some higher-rated jobs formerly open only 
to whites (Id. at 64 ), that some Negro employees have 
advanced through exercising their right to transfer 
(Id. 65 ), and that certain Negroes have attained 
high-rated jobs in the plant (Id. at 58-59), 
the court rejected the argument that the company's 
present policies are unlawful under Title VII insofar 
as they perpetuate the effects of pre-Act discrimina­
tion (Id. at 68, 91, 114).

The relief requested by the govemment--esentially
the establishment of a modified plant-wide seniority
system as to Negroes hired prior to 1962 for purposes
of promotion within a department and assignment upon 

4/
transfer--was rejected by the court as prohibited

4/ The government did not seek to have Negroes 
assigned to jobs for which they were not qualified.
Our proposed decree would have permitted the company 
to condition promotion to a job on a limited term of 
experience (and, thus, on-the-job training) on 
appropriate lower-rated jobs. Testing, however, would 
be abandoned as a condition of interdepartmentl trans­
fer under the proposed decree.

10



by Title VII on the grounds that such relief would 
grant preferential treatment to Negroes (Id., at 68- 
69). However, the court did order revisions in the 
company's system of filling temporary vacancies (the 
extra board), and required the company to merge two 
jobs which its General Manager agreed should be merged (see, 
App. 3, pp. 1273-1275; 296 F. Supp. at 100, 107, 120). 
Summary of the Evidence Presented

1. The Connors steel plant and its employees.
At its Connors plant the company converts scrap 

metal to finished steel products. The operations per­
formed by the 739 production and maintenance employees 
include melting the scrape, casting it into billits, 
rolling the billets into bars and various other shapes, 
and shearing, straightening or bending the steel pro­
ducts to customer specifications (Id. at 53).

The employees perform their duties within operating 
departments (App. 1, pp. 104-105, et seq.). Employees 
are promoted up lines of pression within "seniority 
departments"--which are not identical with the operating 
departments. There are, within the plant, fifteen such

11



seniority departments (Def. Ans. to Interrog. 1 (1st set)). 
Although most have only a single line of progression, 
the mechanical department has four (five at the higher 
levels) and the electrical department has two at its 
higher levels. (Def. Ans. to Interrog. 9 (1st set).)
Of the 712 employees assigned to seniority departments 
more than 90 percent are in the nine largest departments 
(Def. Ans. to Interrog. 2 (1st set).) The median

5/ The number of employees, by race, in each of the
seniority departments is as follows:
Department White Negro Total

Electric Furnace 93 38 131
Mill Auxiliary 12 104 116
Electrical 83 11 94
Mill Tonnage 74 5 79
Finishing 15 67 77
Mechanical 57 8 65
Cold Draw 24 11 35
Fabricating 6 28 34
Brickmason 11 16 27
Roll Shop 12 1 13
Crap Yard 7 6 13
Railbreaker 3 7 10
Carpenter 4 4 8
Laboratory 7 0 /
Building Maintenance 3 0 3
Total 411 301 712

[Statistics derived from PI. Ex. 1 and 3.]
12



educational level for Negro employees is 10th grade 
and for white employees is 11th grade (Pi. Ex. 10A-S, 
61A-r) . The median hiring date for Negro employees is 
January 21, 1956, while the date for white employees 
is April 13, 1959 (Pi. Ex. 3; Def. Ans. to Interrog.
23 (3d set)).

2. Employment Practices at the Connors Works 
Prior to October 1962 all employees were 

hired and assigned to operating departments, lines 
of progression, and jobs at the Connors plant 
strictly according to race (App. 2, pp. 531-532, 
582-583, 660-661, 735-736; App. 3, pp. 1166-1169;
296 F. Supp. at 55). There were, before Octo­
ber 1962, 109 jobs reserved exclusively for white 
employees and 70 jobs set aside for Negro employees 
(App. 1, pp. 63-78; Def. Ex. 72, pp. 9, 11). The 
defendants kept separate seniority lists for employees 
of each race (App. 1, pp. 135-136). Within all but 
one of the seniority departments there were two lines
of progression, one for blacks and the other for whites

_6/
(App. 1, pp. 128-129, 145-147). Company and union

6/ The mill tonnage seniority department had a 
single, white line of progression (Dep. of Wagner).

13



policy prohibited all Negro employees from exercising 
their departmental seniority on any white job
(App. 1, pp. 120-124;-Def. Ans. to Interog. 10(b), 16(lst set)), 
and exempted all white employees from serving in any 
Negro job as a prerequisite to entering the white line 
of progression (App. 1, pp. 145-147).

In October 1962, in an attempt to establish its 
eligibility for government contracts under the pro­
visions of Executive Order 10925 (PI. Ex. 25, 26, 27), 
the company, with the acquiescence of the union,
undertook (a) to regroup the various jobs into new

7/
lines of progression, (b) to reorder the jobs within 
the new lines, (c) to implement a new standard of 
priority for promotions and (d) to impose transfer 
procedures applicable to crossovers from one line of 
progression to another.

7/ The reorganization of the lines of progression 
did not involve moving any jobs from one seniority 
department to another (App. 1, pp. 133-4) and effected 
only minor changes on the overall departmental structure 
itself(see, App. 1, pp. 40-78).

14 -



(a) The regrouping of Negro and white jobs into 
new lines of progression resulted in the assignment of most 
Negro jobs to three lines of progression--mill auxiliary, 
finishing and fabricating--with only a few white jobs 
included, located at the top of the line--while most 
of the white jobs were placed in nearly all-white lines, 
(see, Appendix A, infra, p. A-l.)
The company's personnel director, Norman Wagner, admitted 
that no consideration was given during the reorganization 
to either the skill or training relationships existing 
between various jobs in placing them in the new merged 

lines of progression (App. 1, pp. 132-133).

8/ For example, the jobs of the more than 100 
Negro employees in the mills were placed in a seniority 
department with the jobs of ten white employees; the 
department was called the "mill auxiliary" department. 
More than 65 white employees in the mills were placed 
in a separate seniority department--"mill tonnage."
No Negro employees were placed in that department 
(Appendix A, infra, p. A-l).

15



Whether employment opportunities at the Connors
_9/

Works are measured by employees' average hourly earnings,
10/

by the pay rates of the jobs in lines of progression,
or by the volume of work at high pay rates which is

11/
available in a department, the four largest predominantly 
white seniority departments maintained since October 1962-- 
electric furnace, electrical, mechanical, and mill 
tonnage--are "high-opportunity departments." The three 
largest predominantly Negro departments--mill auxiliary , 
finishing, and fabricating--are "low-opportunity depart­
ments. "

Together those seven departments include 807, 
of the employees in the plant (Pi. Ex. 3 ) • They
account for 807. of the hours worked and 807. of the earn­
ings (PI. Ex. 68). Of the white employees in the plant,
757, are in high opportunity departments. Of the Negroes

9/ See Appendix B to this brief, infra, pp. B-l- 3.
10/ See Appendix A to this brief, infra, p. A-l.
11/ See Appendix C to this brief, infra, pp. C-l, 2.

16



employed by the company, 65% are in low-opportunity
12/

departments.
(b) The order in which jobs were aligned within 

lines of progression was based exclusively on their 
rates of pay. (App. 1, pp. 130-131). No • 
consideration was given to the relationship between 
the skills required by individual white jobs and those 
required by individual Negro jobs or to any training 
relationships that might be found to exist between 
Negro jobs and white jobs (I<3. at 132-133). The 
minutes for October 24, 1962, stated: "The lines of
progression had been established using the base rate 
of each individual job as the determining factor for 
its placement in the line." (Pi. Ex. 30, p. 3.)

12/ The number of employees by race assigned to each 
type of department is:

Type of Department White Negro
High Opportunity 307 62
Low Opportunity 33 194
Others 71 45

Totals 411 301
17



Prior to the October 1962 changes, when a white 
and a Negro employee entered a department the white 
employee started out making more money than the Negro 
(App. 3, pp. 1167-1168). The entry job for white employees had 
a higher base wage rate than the entry job for Negro 
employees in every seniority department except 
mechanical and laboratory. In those two departments 
the entry jobs paid the same(Pi. Ex. 46; Appendix 
A, infra, p. A-l). There were no Negro
jobs in the plant which earned as much as the entering 
white job in the finishing department (Pi. Ex. 46).
Every white line of progression had one or more jobs 
that paid more than the highest paying Negro job in 
the plant (Ibid.).

The disparity in the earning power of white and 
Negro employees increased sharply as the employees 
gained seniority. In 11 departments Negro employees 
could never advance to a wage rate higher than the 
entry rate for white employees (Appl 1, p. 63;
PI. Ex. 46).

18



The entering white employees in each of the 
other departments were advanced by their first pro­
motion to jobs earning more than the highest paid 
Negro employee in their department (Ibid.).

The result of reordering the jobs within the 
new lines of progression on the basis of rates of pay 
was simply to place substantially all the jobs previ­
ously reserved for Negroes below the jobs previously 
reserved for whites so that nearly all incumbent Negro 
employees were placed at the bottom of the new lines 
beneath nearly all white employees without reference

w
to length of service with the company. In nine of the 
new lines of progression the highest paying Negro job 
was placed below the lowest paying white job. In five 
other lines the highest paying Negro job received only as 
much as or somewhat more than the former entry level white 
job. Three other lines were made up of only white jobs

13/ Personnel Director Wanger conceded in testimony 
that he knew that by putting the racially segregated 
lines together on the basis of their base hourly pay 
the Negro jobs would be on the bottom of the new lines 
of progression (App. 3, pp. 1168-1169).

19



(c) In October 1962, there were in each of the 
largest departments Negro employees who had earned sub­
stantial departmental seniority without being permitted14/
to exercise it to obtain assignments to white jobs.
Thus, on October 4, 1962, at their first meeting to dis­
cuss compliance with the Executive Order, the company 
and the union recognized that the elimination of the 
strict racial classification of jobs, together with the 
application of departmental seniority as provided by 
their collective bargaining agreement, (see PI. Ex. 4, 
§8, para. 2) would result in both white and Negro

14/ For example, among the employees in the electric 
furnace department today, there are 71 persons whose 
seniority dates predated October 1, 1962. The following 
table (derived from Pi. Ex. 3 )shows that the Negro
employees were on an approximate par with the white^ 
employees in terms of seniority in that department in 
October 1962:

SENIORITY IN THE ELECTRIC FURNACE 
DEPARTMENT AS OF OCTOBER 1, 1962

Seniority White Employees Negro Employees

More than 15 years 4 2

10-15 years 7 8

5-10 years 11 11

Less than 5 years 19 9
41 30

- 20 -



employees being considered for promotion to future 
vacancies in higher paying jobs in proportion to their

15/
length of service in the department. The standard 
of departmental seniority would have promoted Negro 
employees, who had been there longer, ahead of junior 
white employees. The company and the union decided to 
apply the standard of "job seniority," a device which 
prevented that result(App. 1, pp. 136-144, 204-212).

15/ While the contract provides that seniority is 
considered only when "ability to perform the work and 
"physical fitness" are relatively equal, in practice, 
however, vacancies at H. K. Porter are offered to the 
employees having seniority rights. The personnel 
director could recall only one instance in which lack 
of ability was the basis for offering a job to a junior 
man without first letting the senior employee try out 
on the job (App. 1, pp. 172-174).
16/ When the 1962 contract expired it was succeeded 
by a new agreement dated October 1, 1965. In the new 
contract the company and the union changed the 
seniority section by deleting the sentence, An 
employee's seniority in his department shall be deter­
mined by his length of continuous service in that 
department," which had appeared in the agreement of 
September 1, 1962. Compare Pi. Ex. 4 with Pi. Ex. 6 (§8, par. 2). 
The district court found, however, that the job seniority 
standard pre-dated 1962, 296 F. Supp. at 87-89. For the 
purpose of deciding the issues raised in this appeal it 
makes no difference when the job seniority standard was 
first instituted.

21



Under the job seniority system, each employee is 
considered for promotion ahead of all the employees who 
are below him in the line of progression for each job 
which is above him in the line of progression, (see, Pi.
Ex. 29, 30). The preference exists regardless of the 
qualifications or length of service of the employees 
involved (App. 3,pp.1173-74; App.l,pp. 141-142). In addition, 
the seniority rules accord a preference to any 
employee for any job to which he was previously assigned 
on a temporary basis (App. 1, pp. 137-138, 140-141,
165-167; PI. Ex. 30, p. 3).

The imposition of this job seniority system on 
the new lines of progression, where Negro jobs were 
placed at the bottom of the lines below the white jobs, 
meant that incumbent Negro employees would always rank 
behind white employees for promotion preferences, regard­
less of length of service with the company, simply 
because in October 1962 they worked at lower paid jobs 
under the racially segregated dual system. The effect 
of the preference for persons who were temporarily 
assigned to a higher rated job was to give white employees 
who had worked temporarily on higher paying jobs in

22



previously white lines of progression preference over
Negro employees whose job gave them a higher rank in
the merged progression lines but who had been denied
access to the higher job, even on a temporary basis,

18/
under the segregated system.

(d) In October 1962, the company instituted an 
aptitude testing procedure for employees seeking to 
transfer from one department to another and, for 
several months after the October 1962 changes, for any 
promotion of Negro employees to formerly white jobs 
(App. 1, pp. 307-309). This aptitude test requirement 
for transfers was written into the language of the 
seniority section of the collective bargaining agree­
ment in 1965 (§8, sub-sec. 5(b), Pi. Ex. 4, p. 34), 
and the aptitude test is now required of all seeking to 
transfer, regardless of their date of hire and their

18/ The job seniority rule applied to newly created 
Jobs in addition to those in being in October 1962. 
(See, e.g., the creation of the "tower leaderman" and 
"towerman" jobs in the electric furnace department in 
1964 and the filling of vacancies in that job (App. 1, 
pp. 79-100, Def. Ans. to Interrog. 7 (3d set); App. 1, 
pp. 228-237; PI. Ex. 11).

23



length of company service (see, Def. Unnumbered Ex.,
§8, sub-Sec. 5(b) -- the 1968 collective bargining agreement).
In addition, a transferring employee receives no credit
in the new department for seniority previously earned
in the plant and he is required to start in the entry

19/
level job in the new department.

The transfer procedure outlined in the 1965 con­
tract requires an employee seeking a transfer to make a
written request (§8,sub-sec.5(a),Pi. Ex.4) and to 
take an aptitude test if he has not passed one already 
(§8,sub-sec. 5(b), Pi.Ex. 4). The aptitude tests have 
been required by the company since 1955 for entering 
white employees and since 1962, as well, for entering

19/ Sec. 8, sub-sec. 5(d), Pi. Ex. 4, p. 35, of the 
1965 collective bargaining agreement provides:

Transfers will be made only when vacancies 
exist in the department to which transfer 
request was made. Upon transfer the trans­
ferred employee will be assigned to the 
entrance job and begin immediately to 
accumulate seniority in that department. 
Thereafter he will not accumulate any ad­
ditional seniority in his original depart­
ment except to the extent provided in Para­
graph (h); nor shall he take with him to 
hew new department any seniority accumulated 
in his original department or any other 
department.

24



Negro employees ( App. 1, pp. 183-201).
However, whereas white employees who have never been
tested currently hold high level jobs in the high
opportunity departments, their Negro contemporaries
are now required to take and pass a test before being
allowed to transfer to the entry level jobs in those

20/
departments.

Prior to 1965, transferred employees lost all 
rights to their old jobs so that in the event of a 
reduction of the work force such employees would be 
laid off. Under the 1965 collective bargaining agree­
ment, transferees are allowed to bump back into their 
previous department (App. 3, pp. 1277-1279).
Their right to return is dependent, however, on the 
length of service completed in the old department in

20/ For example, there are 43 employees in the ten 
highest rated jobs in the mill tonnage department 
(Def. Ans. to Interrog. 7 (3d set)). All are white; 
none have taken an aptitude test of any sort in con­
nection with employment at the plant or assignment to 
the department or line of progression (Def. Ans. to 
Interrog. 10, 12 (3d set)). All entered the line of 
progression while Negro employees were barred from it 
because of their race (PI. Ex. 3). A comparable sit­
uation exists at the top of every other high opportunity 
line of progression(Def. Ans to Interrog. 7, 10, 12 
(3d set); PI. Ex. 3).

25



relation to the length of service of employees still 
working in the department(App. 3, pp. 1277-1279).

The company does not give notice of job vacancies 
to all employees in the plant when they occur. No 
general notices of seniority department vacancies were 
given to employees until January 31, 1968, when one was 
posted and distributed (App. 1, pp. 375-376, 380-381).
The company has not made notice of vacancies a regular 
practice since that time. The company has never posted 
notices of vacancies in individual jobs for bidding.

* * * * *

The failure of the reorganization of the lines 
of progression and of the job seniority system and 
transfer program to dismantle the racially segregated 
employment patterns at the Connors Works plant is demon­
strated by the fact that as a result of the job seniority 
provisions, in October 1962 every white employee in the 
plant but one had a vested right to promotion ahead of 
every Negro, (Pi. Ex. 3; Def. Ans. to Interrog. 7, 20, 
21(3d set )). Thus, of the 712 employees in the 
seniority denartments at the time of the trial, 532 
occupied positions in departments where they had been

26



placed because of their race prior to October 1962 
(PI. Ex. 3). Of the 322 Negro employees, 276 were 
employed by the company before October 1962, and more 
than 75 per cent of them are still in jobs which were 
traditionally Negro, (Ibid., and Def. Ans. to Interrog.

7 (3d set)).
ARGUMENT

Introduction and Summary
In this case, as in two other recent decisions 

of this Court, an employer and its unions follow a 
seniority system which while appearing to be neutral 
on its face, has the effect of perpetuating into the 
present and the future the effects of past, racially 
discriminatory hiring practices. That seniority system 
awards the higher paying more desirable, formerly 
"white" jobs on the basis of seniority attained in 
other formerly white jobs, and thus denies to Negro 
employees who were assigned to low paying "Negro" jobs 
on the basis of their race any seniority credit for 
their experience in formerly "Negro" jobs and denies 
them the opportunity to compete with their equally 
qualified white contemporaries for the better paying 

jobs in the plant.
27



Moreover, assigning most of the ''Negro" jobs 
to a few low opportunity departments, by requiring 
applicants for transfer to lose all of their seniority 
when they transfer, and by requiring transfer appli­
cants to take tests which were not required of their 
white contemporaries the defendant company and union 
have prevented Negro employees from ever competing with 
their white contemporaries for the better paying, more 
desirable formerly "white" jobs in the plant.

The legal issues raised in this appeal are 
similar to those raised and recently decided by this 
Court in Local 189 United Papermakers v. United States, 
416 F. 2d 980 (5th Cir., 1969). In that case in a 
factual context strikingly similar to that at bar this 
Court (per Wisdom, J.) ruled that "facially neutral but 
needlessly restrictive tests may not be imposed where 
they perpetuate the effects of previous racial dis­
crimination."; and it held specifically that the job 
seniority system was unlawful under Title VII of the 
Civil Rights Act of 1964, "because by carrying forward

28



the effects of former discriminatory practices the 
system results in present and future discrimination." 
Slip Op. p. 22 and p. 3. With specific reference to 
job seniority the Court held (Id. at 3). "When a Negro 
applicant has the qualifications to handle a particular 
job the Act requires that Negro seniority be equated 
with white seniority." Accord: Local 53, Asbestos
Workers v. Vogler, 407 F.2d 1047 (5th Cir., 1969); 
Quarles v. Philip Morris. 279 F. Supp. 505 (E.D. Va., 
1968)5 Dobbins v. Local 212, IBEW, 292 F. Supp. 413 
(S.D. Ohio).

The district court's decision was based upon a 
different interpretation of the law. The district 
court apparently believed that the Government was 
obliged to prove that the defendants had provided no 
opportunities to Negroes to advance into previously 
white jobs. That as the district court points out, was 
not the situation in this case. Because they used "job" 
seniority and imposed unnecessary restrictions or trans­
fers of Negroes previously discriminated against, the 
defendants had opened in 1962, by just a crack, the door

29



of opportunity which had been closed to Negroes 
previously. But Title VII requires not that the door 
be opened a little, but that Negro employees be granted 
opportunities which are equal to those of their 
similarly qualified white contemporaries.

The "job" seniority system in effect in this 
case like that in Local 189, United Papermakers, 
supra, is unlawful under Title VII because it perpetu­
ates the effects of past discrimination; and because 
it is not required by an overriding business necessity. 
For the same reasons, the transfer requirements of 
testing and loss of seniority deny equality of opportun­
ity and are not required by business necessity; and they 
too are unlawful. Lastly, we show that this case should 
be remanded for an order directing the abolishment of 
job seniority and the specified transfer procedures for 
Negroes hired prior to October, 1962, and for a deter­
mination as to what (if any) length of service in each 
job is needed to supply employees with training and 
experience which is necessary to prepare for the next 
higher job in each.

30



I.
TITLE VII IMPOSES AN OBLIGATION ON THOSE SUBJECT TO ITS 
PROVISIONS TO CORRECT AND REVISE EMPLOYMENT PRACTICES 
WHICH CARRY RACIALLY DISCRIMINATORY PRE-ACT POLICIES 
INTO THE POST-ACT PERIOD

Section 703(a) of the Act, 42 U.S.C. 2000e-2(a), 
broadly prohibits an employer from discriminating 
against Negroes in any way with respect to "compensation, 
terms, conditions, or privileges of employment," or from 
so limiting Negro employees as to "deprive or tend to 
deprive" them of employment opportunities because of 
race. This appeal concerns the application of this 
statutory obligation to a company which was found by the 
district court to have maintained racially segregated 
departments prior to October, 1962.

The fundamental proposition underlying the gov­
ernment's position in this and similar cases is that 
the enactment of Title VII of the Civil Rights Act of 
1964 cast upon those subject to its provisions not 
merely the duty to follow racially neutral employment 
policies in the future, but also an obligation to correct 
and revise practices which would perpetuate into the

31 -



post-Act period a racially discriminatory policy pursued 
prior to the effective date of the Act. This position 
was adopted by this Court in Local 189, United Papermakers 
v. United States,supra,416 F. 2d 908(5th Cir., 1969), and 
Local 53 v. Vogler, 407 F.2d 1047 (5th Cir., 1969) where 
this Court held that the discrimination prohibited by 
Section 703 includes not merely conduct which directly 
or explicitly distinguishes among present employees on 
the basis of race, but also practices which appear even- 
handed on their fact but which, in actual effect, place 
Negroes at a disadvantage by building upon a pattern of 
pre-Act discrimination.

This is not a novel or unprecedented approach.
It is clearly the teaching of the Supreme Court decisions 
which have implemented the requirements of the Fifteenth 
Amendment. In Guinn v. United States, 238 U.S. 347 
(1915), for example, the Supreme Court held that the 
Fifteenth Amendment's prohibition against the denial or 
abridgement of the right to vote "on account of race, 
color, or previous condition of servitude" invalidated

32



the Grandfather Clause of Oklahoma's constitution because 
that clause "creat[ed] a standard of voting which on its 
face was in substance but a revitalization of conditions 
which when they prevailed in the past had been destroyed 
by [the Fifteenth]. . . Amendment." 238 U.S. at 363-364. 
The Court noted that the challenged Grandfather Clause 
"contains no express words of an exclusion. . . of any 
person on account of race," but it found that the pro­
vision "inherently brings that result into existence" 
by perpetuating a discrimination which, although per­
missible when initially made, subsequently became un­
constitutional ( Id. at 364-365) .

The same principle was applied squarely in 
Lane v. Wilson, 307 U.S. 268 (1939), which concerned 
the constitutionality of the successor to Oklahoma's 
Grandfather Clause. The Court held there that a re­
registration provision limited in time was impermissible 
because "[u]nfair discrimination was. . . retained by 
automatically granting voting privileges for life to 
the white citizens. . . while subjecting colored

33



citizens to a new burden. "(Id. at 276.) The same 
kind of "retention" of "unfair discrimination" is at 
issue in this case.

The district court rejected this approach in 
part because it came to the conclusion that since 
October 1962 incumbent Negro and white employees have 
been identically and equally subject to the seniority 
and transfer provisions. Thus it concluded that, in 
compliance with Title VII, the defendants current prac­
tices treat all employees equally. It erred because it 
failed to give proper weight to the fact that defendants' 
assertedly equal promotion and transfer rules capitalize 
upon the disabilities which were imposed on Negroes prior 
to 1962. Thus, the so-called neutrality of the promotion 
and transfer procedures is like that in Goss v. Board of 
Education, 373 U.S. 683, 688 (1963), and Anderson v.

21/
Martin, 375 U.S. 399 404 (1964), "superficial" only.

21/ Goss involved the constitutionality of a minority- 
to-minority transfer option afforded equally to all white 
and Negro school children in Knoxville, Tennessee; 
Anderson concerned the constitutionality of a Louisiana 
statute which required that election ballots designate 
the race of all candidates. In each, the Supreme Court 
looked beyond the superficial neutrality of the statutes 
and declared both unconstitutional because it found that 
the effect of each was to promote racial discrimination.

34



In actual consequence, the promotion and transfer pro­
cedures perpetuate a pattern or discrimination which,

111
while arguably lawful when initiated, could not 
properly be furthered after Title VII became effective.

Title VII of the 1964 Act was, of course, 
prospective; it established a new federal right to 
nondiscriminatory employment which employers were 
obliged to recognize from and after its effective date. 
It did not make past conduct in and of itself a viola­
tion of the Act. But in having prospective effect only, 
the Act did not render history irrelevant. Nor did it 
recognize a history of racial discrimination as a 
license to continue.

The objective of Title VII was concisely stated 
in the only full legislative committee report on the 
bill: "The purpose of this title is to eliminate,
through the utilization of formal and informal remedial

22/ But see Jones v. Mayer Co., 392 U.S. 409 (1968); 
Dobbins v. Local 212. IBEW, 292 F. Supp. 413, 442 (S.D. 
Ohio 1968); United States v. Medical Society of South 
Carolina, 295 F. Supp. 145, 152 (D.S.C. 1969); Scott &
United States v. Young, _____F. Supp. _____ (C.A. 3850,
July 10, 1969, E.D. Va.).

35



procedures, discrimination in employment based on race, 
color, religion, or national origin." H.R. Rep. No. 914, 
88th Cong., 1st Sess. 26 (1963). The perpetuation of 
past discrimination, even if accomplished by retaining 
after the effective date of the Act practices which 
appear racially neutral, conflicts with this stated pur­
pose as surely as new affirmative acts of racial dis­
crimination. While past discriminatory conduct is not 
eo ipso a violation, its deliberate absorption as an 
integral part of a policy implemented or continued after 
the effective date of the Act warrants judicial relief.

The overwhelming weight of judicial precedent 
under Title VII supports the general proposition that 
employment opportunities of Negroes may not, as here, 
be limited on the basis of a status which Negroes were 
prevented from attaining prior to the effective date 
of the Act because of their race. Recently, this Court 
held such restrictions on union membership unlawful in 
Local 53. Asbestos Workers v. Vogler, 407 F.2d 1047 
(5th Cir. 1969). In that case the district court had 
found unlawful and ordered eliminated nepotistic practices

36



by the all-white union defendant. Vogler v. McCarthy, 
Inc., 294 F. Supp. 1047 (E.D. La. 1967). This Court 
rejected the contention that such an order involves 
retroactive application of Title VII and penalizes the 
union for pre-Act discrimination. The court stated, 
407 F.2d at 1054, in language revealing the striking 
analogy to the present case (emphasis in original):

The District Court did no more than 
prevent future discrimination when it 
prohibited a continuing exclusion of 
Negroes through the application of an 
apparently neutral membership provision 
which was originally instituted at least 
in part because of racial discrimination 
and which served no significant trade- 
related purpose.
This court in the Local 53 case also upheld 

the district court's injunction against the use of 
the equally applied criteria of work experience as a 
requisite for union membership, since Negroes were 
excluded from acquiring such experience before the 
effective date of Title VII ( Ibid.). Similarly, in 
Dobbins v. Local 212, IBEW, 292 F. Supp. 413 (S.D.
Ohio 1968), the court ordered the defendant to exclude 
from its referral system those otherwise neutral

37



qualifications for priority which have the effect of 
limiting opportunities available to Negro electricians 
because they were previously prevented from acquiring 
such qualifications. In both of these cases, then, 
prerequisites for union benefits which, subsequent to 
the effective date of Title VII, were applicable equally 
to all persons in like circumstances, regardless of race, 
were held unlawful as to the class of Negroes who had 
been placed in "unlike" circumstances by pre-Act dis­
crimination. The same analysis applies to the present 
case. Whereas white employees became subject to the 
job seniority provision and the aptitude test pre­
requisite for transfer while in the better paying jobs 
and in the high opportunity departments, the Negro 
employees were subjected to these procedures while on 
the bottom rung of the employment ladder, ie., while 
in the lowest paying jobs and in the low opportunity 
departments. And, the effect of these so-called 
"neutral" procedures, as in Local 53 and Dobbins, has

38



been to keep them in that status.
The legislative history of Title VII reveals 

that congressional proponents were deeply concerned 
that the nation's work force was not beLng utilized 
to its fullest potential, in part because of a wide­
spread relegation of Negroes to dead-end jobs such as 
those in the defendant's Labor Department. E.g.,
H.R. Rep. No. 914, 88th Cong., 1st Sess., Part II 27
(1963) ; S. Rep. No. 867, 88th Cong., 2nd Sess., 3
(1964) ; remarks of Representative Minish, 110 Cong.

24/

24/ Although the district court concluded that 
incumbent Negro employees now enjoy substantial oppor­
tunities for advancement (see 296 F. Supp. at 58-59, 65, 
89-90), the record indicates that since 1962 there have 
been available for Negro employees only two permanent 
vacancies in white jobs in the departments where 75 per­
cent of the Negro employees are assigned (Pi. Ex. 3;
Def. Ans. to Interrog. 7, 20, 21 (3d set)). Further, 
despite the transfer provision the vast majority of 
incumbent Negro employees remain in the low opportunity 
departments where they were originally assigned for 
racial reasons (PI. Ex. 3). The district court's find­
ing that the minimal progress which has taken place 
since 1962 reflects substantial opportunities for ad­
vancement is indicative of an approach to Title VII 
which imposes much less of an obligation on employers 
than the Congress contemplated. See infra 40-43.

39



Rec. 1599-1600 (February 1, 1964). It was the 
expection of those Congressmen that Title VII would 
"permit every worker to hold the best job for which 
he is qualified.11 (Id. at 160C). As the court in Quarles 
v. Philip Morris, Inc., 279 F. Supp. 505, 516 (E.D. Va. 
1968), concluded, "Congress did not intend to freeze an 
entire generation of Negro employees into discrimina­
tory patterns that existed before the act."

In a case presenting a factual situation 
remarkably similar to the one at bar, this Court 
unanimously held that "Crown Zellerbach's job seniority 
system in effect at its Bogalusa Paper Mill prior to 
February 1, 1968, was unlawful because by carrying 
forward the effects of former discriminatory practices 
the system results in present and future discrimina­
tion " (Local 189, United Papermakers v. United States,

416 F. 2d 980, 983 (5th Cir., 19*9).
In that case the court's

25/ See also H.R. Rep. No. 570, 88th Cong., 1st Sess., 
2-4 (1963); Hearings on S. 773 Before the Subcommittee 
on Employment and Manpower, Senate Committee on Labor an 
Public Welfare, 88th Cong., 1st Sess., 116-119, 321-374, 
433-455 (1963).

25/

- 40 -



opinion sets forth a comprehensive discussion of the 
issue, the governing factors, legislative history and 
case law. Its reasoning is equally applicable here

( 416 F. 2d at 988):
The defendants assert, paradoxically, 

that even though the system conditions 
future employment opportunities upon a 
previously determined racial status the 
system is itself racially neutral and not 
in violation of Title VII. The transla­
tion of racial status to job seniority 
status cannot obscure the hard, cold 
fact that Negroes at Crown's mill will 
lose promotions which, but for their 
race, they would surely have won. Every 
time a Negro worker hired under the old 
segregated system bids against a white 
worker in his job slot, the old racial 
classification reasserts itself, and the 
Negro suffers anew for his employer's 
previously bias. It is not decisive 
therefore that a seniority system may 
appear to be neutral on its face if the 
inevitable effect of tying the system to 
the past is to cut into the employees 
present right not to be discriminated 
against on the ground of race........

* * *

. . . The Act should be construed to
prohibit the future awarding of vacant 
jobs on the basis of a seniority system 
that "locks in" prior racial classifica­
tions .

- 41 -



Both Quarles and Local 189 held unlawful seniority
and transfer systems which froze Negroes into low- 
opportunity jobs to which they were discriminatorily 
assigned prior to the effective date of Title VII. In 
Quarles, interdepartmental transfers generally involved 
loss of all seniority, with a consequent impact on 
priorities for day shifts, promotions, and avoiding 
layoffs. As in the present case, the transfer restric­
tions were not overtly limited to Negroes, but only 
Negroes had been relegated to dead-end departments 
prior to the effective date of Title VII. Circuit 
Judge Butzner held that, although the departmental 
structure ''serves many legitimate functions," 279 
F. Supp. at 513, disabilities imposed on incumbent 
Negro employees by the pre-Act discrimination were 
unlawfully perpetuated by the plant's promotional 
system. Nowhere did that court find the transfer 
requirements discriminatory per se. Had there existed 
no pre-Act discrimination, the challenged transfer 
provisions could not have been held unlawful.

- 42 -



In this case--as in the Quarles and Local 189
cases--the gravamen of the violation is the present
perpetuation, here by way of the testing prerequisite
for transfers and by the use of job seniority in the
promotional system, of discrimination which was
practiced in the past. Title VII would not, in this
respect, be applied retrospectively; the relief the
government seeks is directed to present and future 

26/conduct.
It is hardly unprecedented to construe a federal 

statute as requiring corrective action to prevent past 
conduct from affecting newly created federal rights. A

26/ There are, to be sure, district court decisions 
which have disagreed with Quarles and Local 189. See 
Griggs v. Duke Power Co.. 292 F. Supp. 243 (M.D. N.C. 
1968), appeal pending (No. 13,013, 4th Cir.) argued 
April 10, 1969, with the United States participating as 
an amicus curiae urging reversal; United States v. Sheet 
Metal Workers. 280 F. Supp. 719 (E.D. Mo. 1968), appeal 
pending (No. 19,316, 8th Cir.) argued January 17, 1969. 
But, insofar as they disagree with those decisions, 
they also run counter to the decisions of this Court 
in the Local 53 and Local 189 cases. Indeed, in the 
Local 189 opinion the court distinguishes the Sheet Metal 
Workers case as not involving any specific instance of 
actual discrimination and specifically rejects Griggs 
as "unpersuasive " (Slip opinion, pp. 28-30).

- 43



close analogy is presented by the provision of the 
National Labor Relations Act which declared it an 
unfair labor practice for an employer "to dominate or 
interfere with the formation or administration of any 
labor organization or contribute financial or other 
support to it." 29 U.S.C. 158(a)(2). Subsequent to 
the enactment of this provision, it was held that it 
was not sufficient for employers to divest themselves 
of control and support of unions which had previously 
been employer-dominated; total disestablishment and 
the institution of new labor organizations was required. 
See NLRB v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 
261 (1938); NLRB v. Newport News Shipbuilding & Dry Dock 
Co., 308 U.S. 241 (1939); Bethlehem Shipbuilding Corp. 
v. NLRB, 114 F. 2d 930, 938 (1st Cir. 1940); NLRB v.
H. E. Fletcher Co., 108 F. 2d 459, 466 (1st Cir. 1939).
See also Houston Maritime Ass'n, Inc.; (Local 1351, Int'l 
Longshoremen's Ass'n), 168 N.L.R.B. No. 83 (1967); and

27/
NLRB v. Local 269, IBEW, 357 F. 2d 51, 56 (3d Cir. 1966).

27/ Additional support for this analysis of Title VII's 
impact on defendants' current "neutral" transfer policies 
is provided by decisions which have held that the Fourteenth 
and Fifteenth Amendments prohibit prerequisites for public

(Cont. on following page)
- 44



II.
THE JOB SENIORITY AND TRANSFER PROCEDURES 
DISCRIMINATE AGAINST INCUMBENT NEGRO 
EMPLOYEES HIRED BEFORE OCTOBER 1962 AND 
ARE NOT JUSTIFIED BY ANY COMPELLING 
BUSINESS NECESSITY
1. The Employment Opportunities of Negroes Hired 

Before October 1962 have been Limited by Practices which 
Perpetuate the Racial Disabilities Imposed before that 
Date.

A review of the essential facts in this case, 
supra pp. 5-11 , makes it clear that the job seniority
system and the transfer policies enforced at the Connors 
Works have had the effect of denying to Negro employees 
hired before October 1962 an opportunity to compete for 
the better jobs at the plant--ones they might now have 
held but for the color of their skin--on equal terms

27/ (Cont. from preceding page)
school admission or voting which, though neutral on 
their face, perpetuate the effects of past racial dis­
crimination. E.g., Lane v. Wilson, 307 U.S. 268 (1939); 
United States v. Duke, 332 F. 2d 759 (5th Cir. 1963); 
United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 
1963), aff'd 380 U.S. 145 (1965); Gaston County v. United 
States, 395 U.S.285, No. 701, O.T. 1968 (June 2, 1969); 
Ross v. Dyer, 312 F. 2d 191 (5th Cir. 1963); Meredith v. 
Fair, 298 F. 2d 696 (5th Cir. 1962).

- 45



with their white contemporaries; they also had the 
effect of locking them into the low-paying jobs in 
low opportunity departments. The merger of the lines 
of progression resulted in nearly every Negro job rank­
ing below the white jobs; most Negro employees were 
concentrated in low opportunity departments; every 
white employee but one had a vested right to promotion 
ahead of every Negro employee. With incumbent Negro 
employees installed at the bottom of the employment 
ladder, the job seniority system and transfer policies 
had the inevitable effect of keeping the incumbent 
Negro employees in positions inferior in terms of pay 
and job desirability to their white contemporaries 

(see, supra. 13-27 ).
It is the government's position that H. K. Porter's 

practice of awarding promotions on the basis of job 
seniority and granting transfers only to persons who 
have passed an aptitude test burdens incumbent Negro 
employees hired before October 1962 and tends to limit 
their employment opportunities. We contend, therefore, 
that these employment policies constitute, by virtue of 
the fact of past racially discrimintory job assignments,

- 46



a current violation of the terms of §703(a) of the 
Civil Rights Act of 1964.

The awarding of jobs on the basis of job seniority 
rather than company or plant seniority discriminates 
against Negroes hired before October 1962 because it 
means that those Negroes, despite years of service to the 
company, have no seniority in bidding for formerly white 
jobs except as against each other and new white employees. 
They could not have such seniority since the company had 
now allowed them into the white progression lines. H. K. 
Porter gives no recognition to years spent in Negro jobs 
and continues to make years spent in formerly white jobs 
the determinative factor in awarding all former white 
jobs except those previously at the entry level. Thus, 
the company penalizes Negro employees for not having what 
it denied them on account of their race until a few years 
ago--white job seniority. A system which thus limits 
job advancement upon a qualification that the company 
itself had prevented Negroes from attaining for racial 
reasons is unlawful under Title VII. See Quarles v.
Philip Morris, Inc., supra; Local 189, United Papermakers & 
Paperworkers v. United States, supra; Vogler v. McCarty,

- 47



Inc., supra; Dobbins v. Local 212, IBEW. supra. As this 
Court said in Local 189 (416 F. 2d 980, 983),
"When a Negro applicant has the qualifications to handle 
a particular job, the Act requires that Negro seniority 
be equated with white seniority." That requirement was 
clearly not met here.

Similarly, a system which places hurdles in the 
path of Negro employees seeking transfers to better jobs, 
specifically hurdles which their white contemporaries never 
had to clear, also violates the statute. Previously, 
Negroes were generally assigned to low opportunity depart­
ments while whites hired at the same time received assign­
ments to high opportunity departments without having to 
pass any test requirement. Title VII clearly proscribes 
the imposition by an employer of a test criteria as a 
condition precedent to the transfer of any and all 
incumbent Negro employees when its effect is to freeze 
a racially identifiable group of employees into law 
opportunity job classifications to which they were 
assigned under an admittedly discrimintory system of 
assignment. Cf. Vogler v. McCarty, Inc., supra; Dobbins 
v. Local 212, IBEW, supra.

- 48 -



2. Title VII Requires the Elimination of Employ­
ment Practices which Prevent Negroes from Having Employ­
ment Opportunities which are Comparable to their White 
Contemporaries with Equal Qualifications.

The district court eschewed the approach to 
Title VII discussed above. Without considering whether 
Title VII imposed any obligation upon defendants to 
revise current practices which carry into the present 
and future the racial disabilities imposed in the past 
(296 F. Supp. at 62-63), the court denied relief primarily 
for two reasons: First, it concluded that Title VII is
satisfied so long as current practices are racially 
neutral and provide incumbent Negro employees with some 
opportunity for advancements, albeit not equal opportun­
ity. (Id_. at 64,68,90 .) The court found that there were 
advancement opportunities available at the Connor Works,
(Id. at 58-59,64,89-90 ) and held that to the extent
that these opportunities had resulted in less than 
substantial advancement for a large number of incumbent 
Negro employees, the reason lay with the failure of the 
Negro employees to make full use of their opportunities 
(Id. at 66 ). Second, the court ruled that the job 
seniority and transfer procedures were justified and

- 49



that they provided the only method for the maintenance 
of safety amongst the employees (JW_. at 67-68,91).
Thus, the court refused to grant the relief sought by 
the government.

The discussion in part I of the Argument makes 
it clear that defendants are obligated by Title VII 
to revise employment practices which carry forward the 
effects of past discrimination. There is no basis in 
the language of the statute, its legislative history or 
in the decided cases for the district court's conclusion 
that this obligation is satisfied so long as current 
practices do not completely lock in Negro employees who 
were previously discriminated against because of their 
race.

Section 703(a)(1) of the statute prohibits 
employers from discriminating "against any individual 
with respect to his. . . terms, conditions, or privileges 
of employment." on grounds of race; and section 703(c)(1) 
contains a similar prohibition applicable to unions.
42 U.S.C. 2000e-2(a)(1),-2(c)(1). The language of 
section 703(a)(2) goes further and prohibits employers 
from "limit[ing] or classifying!ing]" employees "in any

50



way which would deprive or tend to deprive any individual 
of employment opportunities or otherwise adversely affect 
his status as an employee" because of race. 42 U.S.C. 
2000e-2(a)(2). See also §703(c)(2), 42 U.S.C. 2000e-2(a)(2). 
See also §703(c)(2), 42 U.S.C. 2000e-2(c)(2). The use 
of the words "in any way," "limit," "tend to deprive," 
and "otherwise adversely affect" manifests an intention 
to define discrimination in the broadest possible terms.
If the application of seniority rules or aptitude tests 
to the detriment of previously excluded Negro employees 
is not discrimination in "terms or conditions of employ­
ment" because of race within the contemplation of 
§703(a)(l), it would still be a limitation or classifi­
cation of employees in a way that "would deprive or tend 
[them] of employment opportunities or otherwise adversely 
affect [their] status as. . . employee[s]" because of 
race within the meaning of §703(a)(2).

As we have shown above, the legislative history 
of the Act makes it clear that Congress meant what the 
words of the statute clearly say--to wit, any limitation 
which so much as tends to limit employment opportunities

51



for racial reasons is unlawful and the government may 
resort to the courts in order to remove such limita­
tions. See supra, 45-48.

Recently District Judge Heebe, in deciding the 
second phase of the Local 189 case (United States v.
Local 189, United Papermakers & Paperworkers, 301 F.
Supp. 906 (E.D. La., C.A. No. 68-205, Section B,
June 26, 1969), ruled that (301 F. Supp. at 917):

Title VII of the Civil Rights Act of 
1964 requires that opportunities to hold 
better paying jobs be made available to 
all employees equally without regard to 
race. So long as there are institutional 
systems or procedures which deny to Negroes 
advancement to better paying, more desirable 
jobs which are held by whites with comparable 
mill seniority and ability, this legal obli­
gation is not satisfied. The company is not 
required to forego its legitimate interest in 
maintaining the skill and efficiency of its 
labor force. Consistent with these two safe­
guards, however, * * * any structural 
impediments which delay the attainment by 
Negroes of jobs generally as good as those 
held by their white contemporaries or which 
force Negroes to pay a price for those opportunities 
are recmired by law to be removed.
On a factual record which reveals striking 

similarities to the record in this case -- namely the 
merger of previously segregated lines of progression on the basis

52



of rates of pay so that "in most case^'[not all cases] 
the effect was to place all the formerly Negro jobs 
beneath the entry level job in the former white line 
of progression because the Negroes historically had 
only been permitted to occupy the least desirable jobs 
and the lower paying jobs" (301 F. Supp. at 911), and 
the allocation of the promotions pursuant to a system 
of job seniority--the Court held ( 301 F. Supp. 
at 918) ;

Any practice, system, procedure or 
policy that denies a member of the 
affected class promotion to a vacant 
job which he is qualified to perform, 
where he is senior in terms of con­
tinuous employment with the company 
to other eligible employees and where 
he has not previously waived or other­
wise disqualified himself for promotion 
or advancement, is a "term, condition 
and privilege of employment" that dis­
criminates against Negro employees on 
the basis of race, in violation of 
Sec. 703(a) of the Civil Rights Act 
of 1964.

The policy of the defendants in 
deterring Negro employees from trans­
ferring to formerly all-white lines 
of progression by requiring these 
employees to suffer a reduction in

53



wages and the loss of all promotional 
security as a condition of transfer 
constitutes a "term, condition and 
privilege of employment" that discrimi­
nates against Negro employees on the 
basis of race, in violation of Sec.
703(a) of the Civil Rights Act of 1964,
42 U.S.C. Sec. 2000e-2(a).
In neither Quarles nor Local 189 were all Negro 

employees permanently locked into formerly Negro jobs 
and departments. See Quarles v. Philip Morris, Inc., 
supra, 279 F. Supp. at 511-512. There was room for 
advancement; but the opportunities were not such as to 
allow incumbent Negro employees to compete equally with 
their white contemporaries who, because they were 
initially assigned to better jobs, had a built-in com­
petitive advantage in seeking to fill job vacancies in 
formerly white jobs. The district courts, and this 
court in the Local 189 appeal, focused not on the un­
availability of all opportunities for advancement but 
on the fact that the employment opportunities of 
Negroes were limited because the allocation of jobs was 
pursuant to a kind of seniority Negroes were prohibited 
from acquiring. Each of those courts confronted, there­
fore, the question whether the reliance on such job

54



allocation procedures constitute racial discrimination 
precluded by the 1964 Act. Thus, the attempt of the 
Court below to distinguish Quarles and Local 189 
(296 F. Supp. at 62-64, 90) must fail. Its attempt to 
avoid the issue of whether Title VII has been violated 
by defendants, pursuant to its view that the advance­
ment opportunities at the Connors Works were adequate 
under the statute, particularly in light of its opinion
that Negro employees had demonstrated a low level of 

28/
ambition, is not responsive to the statutory command 
that employment opportunities not be limited for racial 
reasons. See Cooper and Sobol, Seniority and Testing 
Under Fair Employment Laws: A General Approach to
Objective Criteria of Hiring and Promotion. 82 Harv. L. 
Rev. at pp. 1623, 1627-1628.

28/ As demonstrated in part I of the Argument,
Title VII imposes an obligation on employers to revise 
employment practices which tend to limit the advance­
ment opportunities of Negroes, and it is no defense to 
an action under Title VII to claim that the barriers 
to advancement can, with proper effort, be scaled and 
that since Negro workers chose not to make the attempt 
they may not rely upon the statute's promises.

55



3. The Job Seniority and Transfer Procedures
are not Justified by any Compelling Business Necessity.

When an employer has been shown to have discrimi­
nated in the past, and when its present policies 
perpetuate and renew discriminatory effects, this Court 
has ruled that those policies must yield, unless "there 
is an overriding legitimate, non-racial business purpose" 
which justifies the policies and demands their preserva­
tion, (such as the need for secretaries to type) United 
States v. Local 189, United Papermakers & Paperworkers, 
supra, (416 F. 2d 980, 989). . Accord, Quarles
v. Philip Morris, Inc., supra, 279 F. Supp. at 513.

The decisive question then is whether the job 
seniority standard and test prerequisite to transfer 
are "so necessary to. . . [H. K. Porter's] operations 
as to justify locking Negroes, hired before. . . [October 
1962] into permanent inferiority in their terms and 
conditions of employment." United States v. Local 189, 
United Papermakers and Paperworkers, supra, p. 939.

Apparently, the district court believed that the 
job seniority and test requirements were necessary for 
the safe operation of the steel mill. (296 F. Supp. at

56



67-68, 91.) However, the court offered no reasoning 
or facts to support its finding, which appears to have 
been colored by its erroneous view of the requirements 
of Title VII.

When this Court in Local 189 used the phrase 
"Overriding, legitimate, non-racial business purpose" 
as something which may permit continuation of an 
employment practice which has a discriminatory impact, 
it did so in terms of need for a secretary to be able 
to type. Clearly, there is no such need for a job 
seniority system in this case. A job seniority system 
is likely to promote the man who has had the greatest 
length of service in one job to the next higher job. 
But whether he has had one week, one month, or fifteen 
years experience in the job is purely dependent upon 
chance--i.e., on whether employees in the higher rank­
ing jobs retire, quit, die or remain on the job.

Another system, using plant or mill seniority 
as the basic measuring stick, would require job-by-job 
promotion through the lines of progression, insofar as 
each job provides training and experience which is 
necessary for the next higher job, but once each

57



employee has served successfully in a job for the length 
of time necessary to permit achievement of such 
experience and skills, to bid on the next higher job on 
the basis of plant seniority. This system, which was 
the one required by the district court in the Local 189 
case, ensures that employees will have necessary train­
ing and experience--particularly where, as in Local 189, 
it is coupled with general requirements that seniority 
counts in bidding only among qualified bidders, and that 
the company has a right to reject any bidder who can't 
do the work. Thus, it is clear that there was no legiti­
mate overriding business necessity to maintain a job 
seniority system in this case, any more than there was 
in the Local 189 case. Here, as in that case, the dis­
criminatory job seniority system must be abolished to 
meet the requirements of Title VII.

Similarly, the defendants' requirement that a 
person pass an aptitude test before transferring from 
one department to another was not justified by any 
business necessity. White incumbents holding jobs in 
the predominantly white, high opportunity departments 
and receiving promotions there, never took such tests.

58



There is clearly no justification, much less an over­
riding business necessity, for imposing such a require­
ment on their Negro contemporaries.

The Quarles and Local 189 cases stand for the 
proposition that there is no overriding business 
necessity warranting a practice which discriminates 
against Negroes if the same interest could be adequately 
served by alternative procedures that would be less 
prejudicial. Conceding that there exists a need for 
some training and experience in lower jobs before ad­
vancing to higher jobs involving greater skills and 
that workers safety is a vital factor at a steel mill 
and mandates that employees be properly prepared to 
perform any task required of them, there is no explana­
tion offered in the opinion below why these business 
needs may only be served by the white job seniority and 
test standards. The district court fails to give any 
reason for its conclusion that the employee with the 
most seniority in a white job should be promoted over 
a Negro employee who was denied the opportunity to 
accumulate white seniority but who nonetheless meets 
the qualifications for promotion.

59



The district court's conclusion about business 
purposes rests upon two assumptions concerning the gov­
ernment's proposed relief. First, the court assumed 
that the government proposed to eliminate the lines of 
progression and allow open bidding on all jobs on the 
basis of plant seniority. Second, the court assumed 
that the amount of time actually served in one job has 
some relationship to the amount of time it takes for 
one to become qualified for a promotion. We have 
already shown the inaccuracy of the second assumption 
and a reading of the proposed decree will demonstrate 
the inaccuracy of the first assumption. The government 
proposed that:

1. Filling Permanent Vacancies. Permanent 
job vacancies shall be filled by awarding 
the job to the employee with the most 
company seniority provided (a) he is a 
member of the seniority unit to which the 
job is assigned or has applied for a 
transfer to that unit, and (b) he has met 
the prerequisite qualifications for the 
vacant job, as established pursuant to 
paragraph 4, below.

60



* * *

4. Job Qualifications. The company shall
establish objective qualification standards 
for each job in the plant. In ro event 
shall the standards for any job be more 
stringent than the standards previously 
used for admission of white persons to that 
job. In establishing the qualification 
standards, the company shall be guided by 
the following principles:
a. Except for record keeping jobs, the 

standards shall be expressed in terms 
of the minimum number of shifts an 
employee must perform satisfactory 
work on specified lower rated jobs.
No tests shall be used.

b. Work in a lower rated job shall only 
be required in cases where such job 
has a functional relationship to the 
job in question and where work on such 
job has traditionally been a prerequisite 
to obtaining the job in question. . . .

61 -



Though this Court explained in its opinion in 
the Local 189 case that the district court's decision 
in this action was not necessarily in conflict with 
the conclusions there reached, it did so only on the 
assumption that the record supported the district 
court's view that "safety and efficiency, the component 
factors of business necessity, would not allow relaxa­
tion of the job seniority system," at H. K. Porter 
(Slip opinion, p. 28). Having demonstrated that the 
record in this case fails to support the district 
court's assumption in that regard, it seems clear that 
the district court's decision herein is in direct con­
flict with this Court's Local 189 decision and should 
be reversed.

III.
THE DISTRICT COURT SHOULD BE REQUIRED 
TO ORDER AFFIRMATIVE RELIEF SUFFICIENT 
TO ELIMINATE THE UNNECESSARY PRESENT 
EFFECTS OF PAST DISCRIMINATION
This Court, in its opinion in Local 53, Asbestos 

Workers v. Vogler, supra, held that Title VII "authorizes 
appropriate judicial relief from unlawful discriminatory 
practices." 407 F.2d at 1052. The court explained that

62



the district courts, in formulating appropriate remedial
decrees, "are not limited to simply parroting the act's
prohibitions but are permitted, if not required, to
'order such affirmative action as may be appropriate.'
See United States v. Louisiana, E.D. La. 1963, 225 F.
Supp. 353, 393, aff'd, 1965, 380 U.S. 145, 154." Ibid.

We note first that this case does not involve
the right of an employer who wishes to upgrade the level
of his work force to impose a test requirement on new 

29/
hires. For the relief sought did not affect the 
company's right to do so, for it merely requires that 
Negroes be treated equally with their white contemporaries. 
Second, the relief suggested does not run counter to the

29/ Such a requirement would, of course, be impermis­
sible if it was used to limit the employment opportuni­
ties of Negroes because of their race, and it might in 
any case be unlawful it if were not fairly predictive of 
ability to perform the jobs involved. See §703(h), 42 
U.S.C. 2000e-2(h), of the Act and the EEOC Guidelines on 
Employment Testing Procedures (1967).

63



provisions of §703(j) of the Act or the holding in
Whitfield v. United Steelworkers of America, 156
F. Supp. 430 (S.D. Tex. 1957), aff'd, 263 F. 2d 546

31/
(5th Cir.), cert, den., 360 U.S. 902 (1959).

30/

30/ The revision of the company's employment practices 
would not have the effect of preferring Negroes in viola­
tion of §703(j), 42 U.S.C. 2000e-2(j), of the Act. As 
this court explained in its opinion in the Local 189 case
(4l6 F. 2d at 995 ):

No stigma of preference attaches to 
recognition of time actually worked in 
Negro jobs as the equal of white time.
The individual victims of prior discrimi­
nation in this case would necessarily be 
the ones - the only ones - to benefit by 
the institution of mill seniority, as modi­
fied in the decree. We conclude, in agree­
ment with Quarles, that Congress exempted 
from the anti-discrimination requirements 
only those seniority rights that gave white 
workers preference over junior Negroes.

31/ Whitfield, a pre-Act case, is not here relevant.
As to the job seniority issue it did not deal with "the 
measure of promotion from one job to another" United 
States v. Local 189, United Papermakers and Paperworkers, 
supra, 4l6 F. 2d at 993, with which we are here
concerned. With respect to Negroes assigned to low 
opportunity departments for racial reasons prior to Octo­
ber 1962, compliance with Title VII requires more than 
what the court sanctioned in Whitfield. Such employees 
cannot be treated as equivalent to new applicants coming 
in off the street. They have, in the past, been limited 
and classified for racial reasons in a manner which 
deprived them of employment opportunities. As to them, 
a ban on interdepartmental transfers, unless the appli­
cant has passed an aptitude test, operates to reinforce

(Cont. on following page)
64



In this case the requisite affirmative relief 
must be such as to eliminate, to the extent possible, 
the present effects of past discrimination. Basically 
that will necessitate the elimination of the job 
seniority standard for promotion and the aptitude test 
prerequisite to transfers in all cases in which Negro 
employees hired prior to October 1962 are involved. 
Quarles v. Philip Morris. Inc., supra; Local 189, 
Papermakers & Paperworkers v. United States, supra. See 
also, Vogler v. McCarty, Inc., supra, aff'd on appeal 
sub, nom. Local 53, Asbestos Workers v. Vogler, supra; 
Dobbins v. Local 212, IBEW, supra. See generally, Note, 
80 Harv. L. Rev. 1260, 1277-1279 (1967); Cooper & Sobol, 
supra, 82 Harv. L. Rev. at 1632-1636. We believe it 
would be appropriate, therefore, for this Court to remand

31/ (Cont. from preceding page)
the previous policies of racial discrimination. The 
result is that the use in the past of a racial classifi­
cation still tends to deprive Negroes of employment 
opportunities and adversely affects their status as 
employees. As such, there is a clear violation of the 
specific provisions of §703(a)(2) and there is no over­
riding business reason for maintaining a test prerequisite 
not previously found necessary for determining whether or 
not white persons assigned to those departments had the 
necessary qualifications when the effect is to reinforce 
prior racial preferences. Thus, the necessary relief is 
something more than what Whitfield sanctioned in the con­
text of the vague fair representation requirement of the 
National Labor Relations Act.

65



with instructions that the district court enter a 
decree which would require the company to offer job 
vacancies in all cases where a Negro hired before Octo­
ber 1962 is in competition with any other employee on 
the basis of company or plant seniority. Such system 
should, of course, contain provisions to insure that 
the Negro employees bidding on a job have the requisite 
qualifications for the position he seeks. The district 
court should thus require the establishment of various 
objective measures of qualification, such, as for 
example, a provision that where one job provides train­
ing and experience which is necessary to perform the 
next higher job, that a specified residence period be 
completed before moving to the next higher job. Similarly, 
Negroes hired prior to October 1962 should not be denied 
transfers to predominantly white departments simply 
because they have not taken and passed the company's 
aptitude test, where their white contemporaries were not 
required to take such tests to enter the department.

Necessarily, the district court will be called 
upon to re-evaluate the structure of the lines of 
progression and the functional relationships between

66



each and every job in the company in order to fix 
qualification criteria. The court's previous general 
findings that the lines are functionally organized was 
made pursuant to its general analysis of the issues, 
an analysis which was based upon a rule of law contrary 
to that adopted by this Court. Those general findings 
did not speak to the issue of the specific qualifica­
tions necessary for various jobs in the context of the 
type of remedial decree that it will now have to imple­
ment. Accepting the general proposition that lines of 
progression are functionally necessary and that gen­
erally the ladders of progression are functionally 
organized does not mean that the holding all jobs below 
the position sought is necessarily an immutable pre­
requisite for safety and efficiency and as a demonstra­
tion of qualification (see supra, pp. 57-59 ).
Should this Court reject the district court's approach 
to Title VII and accept the positions herein advanced, 
it will become necessary for the district court to 
implement remedial relief of the nature here suggested, 
and we believe it will thus also become necessary for

67



the district court to implement remedial relief of the 
nature here suggested, and we believe it will thus also 
become necessary for the court to re-evaluate the 
functional nature of the lines of progression in order 
to accord relief that will strike a fair balance between 
the needs of safety and efficiency and the rights of 
Negro employees hired before October 1962 to move into 
positions comparable to those now occupied by their 
white contemporaries as quickly as possible.

For the foregoing reasons, we urge that the decision 
below be reversed and the case remanded to the district 
court for the entry of an appropriate remedial order.

United States Attorney Assistant Attorney General

CONCLUSION

Respectfully submitted
MACON L. WEAVER JERRIS LEONARD

JOHN A. BLEVEANS
THOMAS R. EWALD 
Attorneys
Department of Justice 
Washington, D. C. 20530



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of
the foregoing Brief for the United States on counsel 
for the appellees as follows:

Lucien D. Gardner, Jr.
William F. Gardner
Cabaniss, Johnston, Gardner and Clark 
First National Bank Building 
Birmingham, Alabama 35203
Jerome A. Cooper 
Cooper, Mitch and Crawford 
1025 Bank for Savings Building 
Birmingham, Alabama 35203

This // ̂  day of , 1969.

JL—

JOHN EVEANS
Attorney
Department of Justice 
Washington, D. C. 20530

EVEANS



APPENDIX A

Appendix A is a copy of the chart in Plain­
tiff's Exhibit #1, corrected so that the pay rates 
for all jobs agree with those shown by the company 
in Plaintiff's Exhibit #46 as corrected, and so that 
the statistics of employees in each department agree 
with the company's corrected seniority lists in 
Plaintiff's Exhibit #3.

The jobs, by department, involved in the cor­
rections are:

BUILDING MAINTENANCE 
Welder-2nd Class

COLD DRAW
Draw Bench Operator (Rounds) 
Straightener Operator 
Pickle Tank Operator

ELECTRIC FURNACE 
Melter Assistant 
Towerman

ELECTRICAL
Electrician-lst Class 
Maintenance Crane 
Spell Crane-Ladle and Ladle Crane 
Spell Crane-Tower and Ladle

FABRICATING
Spiral Machine Opr. (Rounds) 
Tagman

A-l



MECHANICAL
Machinist
Blacksmith
Machinist Sub-Journeyman 
Handyman-Hyster Traxcavator Opr. 
Mechanic-2nd Class 
Welder-2nd Class 
Car Blocker 
Blacksmith Apprentice

MILL TONNAGE
Roller Hlpr.-Heater
Rougher
Heater Hlpr.
Enterer, Roll Change Gr. II 
Hot Saw Opr.-Transfer Opr.

RAIL BREAKER 
Off Bearer

ROLL SHOP 
Roll Turner
Roll Turner Sub-Journeyman 
Roll Yard Helper

A-2



APPENDIX B

The graph on the following page shows by race
the number of employees who had earnings over $3.75
per hour and the number who had earnings under $3.75
per hour in each of the nine largest seniority depart-

1/ments during the first six months of 1968.
Half the employees in the bargaining unit had

average hourly earnings over $3.75 during the first
six months of 1968, and the other half had average

2/
hourly earnings under $3.75. Seventy-three per cent 
of the white employees earned more than $3.75. Eighty 
per cent of the Negro employees earned less than $3.75. 

Average hourly
earnings White Negro

Over $3.75 297 61
Under $3.75 108 254

Totals 405 315

.1/ Def. Ex. 74. The departments are identified on 
the graph as follows:

FUR Electric Furnace AUX Mill AuxiliaryEL Electrical FIN FinishingMEC Mechanical FAB FabricatingTON Mill Tonnage CD Cold Draw
BM Brickmason

2/ Def. Ex. 74.

B-l



The principal element of an employee's earnings
is the basic hourly wage rate of the job to which he
is assigned. The rate for each job in each department 
is established under the collective bargaining agreement.

The company assigns white employees 907o of the 
time to jobs earning a base hourly wage higher than 
$2.50 an hour, while at the same time Negro employees 
are assigned to jobs paying less than $2.50 about two- 
thirds of the time. During the period October 22, 1967 
through January 6, 1968, the number of hours worked by 
white and Negro employees by basic hourly wage rates, 
was as follows:

3/ An employee's total earnings are derived from the 
following: (1) basic hourly wage; (2) overtime premium;
(3) shift premium; and (4) incentive pay. These factors 
affect total earnings in the following proporitions:

The union contract (PI. Ex. 32) provides for 32 levels 
of basic hourly compensation. They range from a low of 
$2.32 1/2 per hour and increase in 7 1/2 cents increments 
to a high of $4.69 per hour. The range is different within 
each seniority department. For example, in the mill ton­
nage seniority department the jobs range from $2.81 1/2 to 
$4.61 1/2, while in the finishing seniority department the 
range is from $2.36 1/2 to $3.11 1/2. (See PI. Ex.

3/

Base Wage 
Incentive 
Overtime Pay 
Shift Premium

76.5%
18.0%
4.2%
1.3%

100.0%

B_2



4/
HOURS WORKED. BY

BASIC HOURLY RATE
$4,615
4.465
4.090
4.015
3.940
3.790
3.715
3.640
3.565
3.490
3.415
3.340
3.265
3.190
3.115
3.040
2.965
2.890
2.815
2.740
2.665
2.590
2.515
2.440
2.365

RATE, BY RACE
HOURS WORKED

WHITE NEGRO
2,120.0 .0
1,548.0 .0
1,873.5 .0
1,076.0 .0

142.0 .0
32.0 .0
8.0 .0

3,087.5 .0
530.5 .0

15,942.5 .0
7,608.5 .0

13,029.5 3,293.0
8,506.5 .0
6,210.0 .0
6,099.0 .0
4,997.5 3,205.5
13,924.0 3,720.0
16,329.0 1,393.5
13,532.5 3,252.0
10,066.0 1,435.5
11,172.0 3,784.0
5,105.5 5,572.0
3,504.5 12,939.5
6,099.5 16,894.0
11,517.5 61,241.5
164,061.5 116,730.5

Of the 301 Negroes working at Connors Steel only
26--fewer than 97»--are permanently assigned to jobs which
have a base rate of $3.00 or more per hour, while over 45%

_5/
of the white employees are permanetly assigned to such jobs.

4/ The source of the statistics used in this table 
is PI. Ex. 68.

_5/ PI. Ex. and Def. Ans. to Interrogatory 7
(3rd set).

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APPENDIX C
The potential for earning is much greater in 

the high opportunity departments. For example, the 
mill tonnage employees average $1.17 an hour more

_JVthan the mill auxiliary employees. The total earnings, 
by department, are as follows:

2/
AVERAGE HOURLY EARNINGS

High Opportunity Departments
Employee 

Hours Worked
Average
Hourly
Earnings

Mill Tonnage 25,664 $ 4.42
Mechanical 29,413 1/2 4.16
Electric Furnace 41,237 4.13
Electrical 34,207 1/2 4.01

130,522 4.16
Low Opportunity Departments

Mill Auxiliary 42.406 3.25
Finishing 32,469 3.18
Fabricating 16,881 1/2 3.08

91,756 1/2 3.19
Other Departments 58,513 1/2 3.33

Total 280,792 3.67

1/ This table is based on computations made from 
PI. Ex.
2/ Base wage plus incentive pay, overtime pay and 
shift permium.

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Although the high opportunity departments 
account for less than 50% of the total hours worked 
in the plant, more than 857, of the available work at 
a basic hourly rate of $3.00 or more is found in these 
departments. The low opportunity departments have 
less than one-third of the total hours worked in the 
plant, but nearly 70% of all work performed at $2.50 
or less.

3/
HOURS WORKED, BY RATE 
BY TYPE OF DEPARTMENT

Basic Hourly Rates
Type of 

Department Over $3.50 $3.00-$3.50 $2.50-$3.00
Under
$2.50

High Opportunity 9,129 58,979 57,644 4,770
Low Opportunity 111 1/2 2,903 22,315 66,427
Others 1,177 7,010 1/2 25,771 24,555

Totals 10,417 1/2 68,892 1/2 105,730 95,752
The lack of earning potential in the low opportun­

ity departments is most markedly demonstrated when one 
considers the length of time an employee must wait before

3/ PI. Ex.
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he reaches a job earning $2.50 or more per hour. The 
following table shows the length of time the employee 
most recently promoted to a $2.50 job worked in his 
department before receiving his promotion. It also 
shows the number of employees in his department who 
remain behind him in jobs paying less than $2.50

High Opportunity Departments
Length of 
Service

Employees 
Below $2.50

Mill Tonnage 0 0 4/
Mechanical 3 1/2 yrs. 

1 mo. , 11

Electric Furnace 3 mos. 11
Electrical 0 2 5/

Low Opportunity Departments
Mill Auxiliary 13 yrs., 5 mos. 65
Finishing 11 yrs., 9 mos. 44
Fabricating 19 yrs., 6 mos. 18

_4/ The entry level job in mill tonnage pays more 
than $2.50. See Appendix A.
5/ There are two job positions below the $2.50 
level in the electrical department. Five employees 
were assigned to the department on February 18, 1968. 
Two were assigned to the below $2.50 jobs and three 
were assigned directly to the above $2.50 jobs. Def. 
Ans. to Interrogatory 7 (3rd set).

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