The opinion of the court was delivered by: LORD, III
Plaintiffs have brought this action on behalf of themselves and the class they propose to represent alleging racially discriminatory employment policies by defendant. Their rights are alleged to arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Jurisdiction is founded on § 706(f) of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-5(f) and 28 U.S.C. § 1343(4). The complaint seeks both injunctive relief and damages. Plaintiffs have moved for the designation of this action as a class action on behalf of all Negroes employed at General Electric's ("G.E.") Elmwood Avenue Plant in Philadelphia, those who have been employed there and/or who have unsuccessfully sought employment there from July 2, 1965, to the present. They allege that the following questions of law and fact are common to the class:
(a) Refusal to hire Negroes; (b) refusal to upgrade and promote Negroes; (c) refusal to accept Negro employees in the management trainee program, or any of its other five training programs; (d) refusal to consider Negroes for promotions or placements on management trainee list; (e) refusal to hire women of Negro race; (f) refusal to upgrade women of Negro race; (g) refusal to promote Negroes to supervisory positions; (h) refusal to apply standards and requirements to other employees when they were applied to Negro employees, especially after an in-plant cross-buring incident which took place during working hours, in an area where Negro employees were working; (i) the disqualification of employee-applicants who have an arrest record; (j) the discriminatory application of employment criteria relating to prior arrest records as a basis for rejecting black and accepting white employees; (k) the maintenance and administration of a seniority system which discriminates against Negro employees and which has the effect of perpetuating prior discrimination; (l) the assignment of Negro women employees to arduous work to which white women are not assigned; (m) the recruitment of future employees at all white and predominantly white high schools, trade schools, and colleges, and the refusal to recruit at high schools, trade schools and colleges in Negro, and predominantly Negro areas; (n) the use of reprisals against former Negro employees, including, but not limited to, blacklisting, poor and demeaning references, refusal to give references and excessive delay in answering referral letters; (o) the use of reprisals against former Negro employees, who while employed at the Elmwood Avenue plant sought and continued to seek both by informal and legal methods to eliminate G.E.'s discriminatory practices.
Plaintiff Mack is a Negro who was employed by G.E. from August 15, 1963 until August 31, 1967. His individual complaints include: that he was denied an upgrade in position in December, 1964; that he was forced to remain in an arduous supply shipper job by his supervisors after he had been accepted for a more desirable position; that he was denied placement in a manager trainee program in March, 1965, and January, 1966; and that he was informed, after complaining to the government about discrimination at G.E., that his future opportunities with the company would be limited. While Mack never filed a formal charge with the EEOC, he did sign a complaining petition which accompanied an individual letter of March 3, 1966 to the President. The petition was signed by fifteen other employees and treated by the EEOC as a charge.
Plaintiff Hooks, also a Negro, was employed by defendant from March 28, 1956 to June 30, 1969, following a leave of absence which began on December 30, 1968. His individual claim is that in December, 1965, he was denied an upgrade in position because of his race. Hooks also signed the petition to the President, and on May 15, 1966 he filed a formal charge, under oath, with the EEOC.
"Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."
There is no doubt that the class action proposed by plaintiffs satisfies the requirements of Rule 23(a)(1). The core question we must face is whether the requirements of (a)(2), (a)(3) and (a)(4) are met. The resolution of this question, as we see it, depends on whether the discriminations alleged in the complaint are regarded as individual discriminations against proposed members of the class or as manifestations of a broad, sweeping and all-pervasive policy of an imbedded and total racial employment discrimination. It is true, of course, that since employees are human, they are subject to human variances as to skill, industry and aptitude. It is also true that there are differences as to seniority and job requirements. However, we think that a narrow construction of Title VII would unduly restrict, if not frustrate, the Congressional purpose reflected in the passage of this legislation. See, e.g., Developments in the Law: Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 HARV. L. REV. 1109, 1113-19 (March, 1971) (hereinafter cited as " Developments "). Certainly, it would be cumbersome, if not totally unworkable, to require each Negro at G.E., or each Negro refused employment at G.E., to seek redress for alleged grievances individually. Such a course would put an intolerable load on the district court. In addition, we cannot blind ourself to the reality that if, indeed, racial discrimination does exist at G.E.,
the brave soul who dared to complain of it could well be subjected to reprisals.
Courts that have faced the problem confronting us have reacted variously. In Hyatt v. United Aircraft Corp., 50 F.R.D. 242 (Conn. 1970), plaintiff, a Negro, sought to bring a class action on behalf of Negroes who were then employed, had been employed or might thereafter have been employed by defendant. The class action was denied. The court held that the requirements of (a)(2)-(4) were not fulfilled. Illustrative of the court's approach is the following (p. 247):
"Assuming arguendo that plaintiff could be said to have alleged, as to him, discrimination in promotion and compensation, there is a total absence of specification of such discrimination as to other members of the class. * * *"
See also Hackett v. McGuire Bros., Inx. 321 F. Supp. 312 (E.D. Pa. 1970) rev'd, 445 F.2d 442 (1971); Smith v. North American Rockwell Corp., 50 F.R.D. 515 (N.D. Okla. 1970); Burney v. North American Rockwell Corp., 302 F. Supp. 86 (C.D. Cal. 1969).
However, the courts of the Fifth Circuit have adopted a different view, perhaps best illustrated by Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (C.A. 5, 1969). In Johnson the suit was brought by an employee allegedly discharged because of his race, who sought to represent all Negroes seeking equal employment opportunity with the defendant. The district court held that the class should be restricted to persons who had been discharged because of their race. In reversing, the court said at page 1124:
"The first point raised by appellant involves the district court's narrowing of the class, i.e., that the appellant, a discharged Negro employee, could only represent other discharged Negro employees. This was error as it is clear from the pleadings that the scope of appellant's suit is an 'across the board' attack on unequal employment practices alleged to have been committed by the appellee pursuant to its policy of racial discrimination. * * * While it is true, as the lower court points out, that there are different factual questions with regard to different employees, it is also true that the 'Damoclean threat of a racially discriminatory policy hangs over the racial class and is a question of fact common to all members of the class.' Hall v. Werthan Bag Corp., M.D. Tenn. 1966, 251 F. Supp. 184. * * *"
See also Tipler v. E.I. duPont de Nemours & Co., 443 F.2d 125 (C.A. 6, filed May 27, 1971); Jenkins v. United Gas Corp., 400 F.2d 28 (C.A. 5, 1968); Wilson v. Monsanto Co., 315 F. Supp. 977 (E.D. La. 1970); Hall v. ...