The opinion of the court was delivered by: NEWCOMER
After a protracted 85-day trial, this Court has finally reached the conclusion of the liability stage of this employment discrimination case. Plaintiffs, a class of production and maintenance (P & M) workers, are suing their employer, United States Steel (USS) and their unions (Union) for alleged violations of Title VII, 42 U.S.C. §§ 1981, 1985(3), and 2000e Et seq. At the close of plaintiffs' evidence, the Court issued a lengthy opinion dated July 25, 1977. Dickerson v. United States Steel, 439 F. Supp. 55 (E.D.Pa.1977). In that opinion, the Court dismissed certain class claims and enunciated certain factual and legal conclusions in support. Those dismissals are incorporated by reference into this final opinion. There remain for decision four class claims of discrimination: initial assignment, access to management, access to crafts, and transfer to new facilities. Furthermore, the Court must decide the claims of the two named class representatives, Moses Dickerson and Eddie Williams, as well as the related case of Curtis Worthy.
In the July opinion, the Court also made findings of facts and conclusions of law concerning the issues of jurisdiction and standing to represent the class. The Court has examined the arguments of defendants on these issues and finds no persuasive new argument raised. Therefore, the Court includes the discussion on jurisdiction from that opinion in its final findings and conclusions for purposes of this opinion. However, a recent decision by this circuit's Court of Appeals has shed further light on these issues. On the issue of standing, the Court notes that the holding of the Court of Appeals in Hicks v. Abt, Inc., 572 F.2d 960 (3d Cir. 1978), supports this Court's earlier conclusion that the individual plaintiffs can represent all the claims presented in the class action. In Hicks, the appellate court ruled that the scope of a Title VII action is controlled not only by the charges actually included in an EEOC charge, but those which could have "reasonably been expected to grow" out of the charges made. Since the charges of Eddie Williams and Moses Dickerson involved a large number of issues, this Court finds that the EEOC could reasonably have been expected to launch a full-scale investigation of all of USS' employment practices as regards race, as well as the Union's possible involvement in them. Therefore, even as to areas not the subject of specific charges by Williams and Dickerson, this Court concludes that Hicks sanctions the plaintiffs' role as representatives in this broad-ranging class action. Furthermore, Hicks lends support to the Court's allowance of the equitable tolling concept on jurisdiction. Hicks had filed a complaint with another federal agency. The appellate court equated this complaint with a "charge" under § 704(a) of Title VII, which protects an employee from being fired for seeking a remedy for violations of the Act. This Court believes that under Hicks, as read with the cases relied upon earlier, 439 F. Supp. at 68-69, it has equitable jurisdiction over this case for the period dating from Dickerson's March, 1970 letter to the Department of Labor.
Finally, the Court incorporates by reference its discussion of the burden of proof in this action. As noted below, in a specific discussion of proof on the testing issue, the Court has carefully considered the arguments presented at this stage by all the parties. In choosing to remain with the July statement of law, the Court specifically rejects USS' argument that Title VII requires proof of discriminatory intent. In support of this position, the Court cites Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976); General Electric v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976) and Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Recent decisions of circuit courts also support this conclusion. Richardson v. Penna. Dept. of Health, 561 F.2d 489 (3d Cir. 1977); Rule v. Int'l Association of Bridge Workers, 568 F.2d 558 (8th Cir. 1977); Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977); United States v. City of Chicago, 573 F.2d 416 (7th Cir. 1978); James v. Stockham Valves, 559 F.2d 310 (5th Cir. 1977). The Court feels that these cases, many of which refer to the Congressional purpose not to require plaintiffs to prove intent, adequately deal with USS' argument on the legislative history of Title VII in general. Furthermore, they all support the proposition of Griggs v. Duke Power, 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), that facially neutral practices having a disparate impact are violations of Title VII. The Court has not found a single case holding to the contrary.
Defendant USS, in a last-minute brief, has argued that the recent Supreme Court decisions in Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S. Ct. 2943, 57 L. Ed. 2d 957 (1978) and University of California Regents v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1976), compel this Court to hold that Title VII requires a showing of intent. This Court cannot find any language in those cases which would lead to such a holding. Bakke, decided under Title VI, did not reach the question of intent on the part of the employer. In Furnco, the Supreme Court dealt with the burden of proof in an individual suit under McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The Court described what is included in a prima facie case. The Supreme Court's opinion, in fact, supports this Court's conclusion that the plaintiffs need not prove intent.
"A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors . . . And we are willing to presume this largely because we know from our own experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, whom we generally assume acts only with Some reason, based his decision on an impermissible consideration such as race." 438 U.S. at 577-578, 98 S. Ct. at 2949-2950.
Since the prima facie case need only raise an inference of discrimination, which can be rebutted by showing a permissible reason for the employment decision, it is clear that proof of intent need not enter into a Title VII case. The inference of impermissible motive which is shown by a disparity of treatment or impact is clearly enough to prove plaintiffs' case, if not met by defendants with rebuttal evidence.
The Court will now, in narrative form, present its findings of facts and conclusions of law on the remaining class and individual actions.
The plaintiffs' first remaining claim is that blacks at Fairless are disproportionately assigned to certain jobs. This is not a claim of absolute segregation, but of stereotypical assignment to certain allegedly unpleasant or undesirable jobs. In the July opinion, the Court opined that, at that point, plaintiffs had established a prima facie case on this issue. Their case is primarily based on statistical analyses, the Matched Pair Study (MPS) and related corroborative and substantive studies. At that time, of course, the defendants had not yet presented any expert testimony attacking the statistics. Plaintiffs have argued that the defendants now have the burden of disproving plaintiffs' statistics with affirmative evidence, such as complete studies of their own. While doing this certainly would have simplified the Court's task, as in Presseisen v. Swarthmore College, 442 F. Supp. 593 (E.D.Pa.1977), the plaintiffs' statistics need only be shown incompetent and unreliable to defeat them. Markey v. Tenneco Oil Co., 439 F. Supp. 219 (E.D.La.1977). Defending statistical proof is part and parcel of plaintiffs' prima facie case; the burden does not shift to a defendant for affirmative proof if the prima facie case is defeated by defendant's evidence. The plaintiffs' case does not become invulnerable after they complete their case-in-chief and survive a motion to dismiss. The Court must reexamine it at the close of all evidence to ascertain if it still meets the prima facie test. Croker v. The Boeing Co. (Vertol Division), 437 F. Supp. 1138, 1183 (E.D.Pa.1977); Neloms v. Southwestern Elec. Power Co., 440 F. Supp. 1353 (W.D.La.1977); EEOC v. E.I. duPont de Nemours and Co., 445 F. Supp. 223 (D.Del.1978). This point of view is also supported by the very recent decision of the Fifth Circuit Court of Appeals in EEOC v. Datapoint Corp., 570 F.2d 1264 (5th Cir. 1978). There, the EEOC presented a statistical comparison of the defendant's workforce with that of the surrounding community. That was the only evidence in the prima facie case. The trial judge concluded that the plaintiff had failed to establish a prima facie case. The appellate court upheld this conclusion, saying there was ample evidence to support it. The appellate court stated that the defendant's statistical expert had "cast grave doubt upon the credibility of the EEOC's statistics." 570 F.2d at 1270. His criticisms included some of those expressed in this case, such as inaccurate data base and possible distortion of the results by selective use of information. The court concluded that the defense expert's "general opinion was that the EEOC's statistician's conclusions were not justified and were not evidence of good statistical methodology." Ibid. Here, defendants have challenged the accuracy of statistics by presenting similar testimony. Therefore, the Court must now weigh all the evidence, including evidence presented by defendants' witnesses, to see if plaintiffs' prima facie statistical case remains intact now that all the proof is in.
The Court must conclude that it does not. As in Datapoint, defendants produced highly credible experts who severely criticized both the sampling and analysis of the MPS. Although all experts on both sides were very impressive and helpful witnesses, in addition to being outstanding in their fields, the Court must give greatest weight to the testimony of Dr. Paul Meier, USS' witness and Chairman of the University of Chicago's statistical department, and Dr. Samuel Shapiro, the Union's expert from the math-science department at University of Miami.
Although many of their criticisms were theoretical only, having not been affirmatively established by contradictory studies, the Court nevertheless finds that these criticisms mount up into a massive challenge to the study's credibility that cannot be ignored.
In United States v. International Union of Elevator Constructors, 538 F.2d 1012 (3d Cir. 1976), the Court of Appeals considered challenges to the reliability of statistics as an attack on the prima facie case, rather than as a portion of defendant's burden. There, the appellate court felt that the statistics' flaws were not so great as to defeat the initial proof. In the case before this Court however, the attacks on the statistics are so significant that the Court has determined that the statistical evidence is unreliable.
As the Supreme Court noted in Teamsters v. United States, supra, statistics are not irrefutable and must be analyzed as to their methodology's propriety and accuracy of execution. Dickerson, supra at p. 66.
The defendants' challenges to the MPS fall into two categories: the sample selection and the methodology of the study's conclusions. Based on the numerous attacks on the sampling, which determines whether or not a study of part can in fact reflect the reality of the whole, the MPS' reliability is very questionable. However, when the critiques of methods used for drawing conclusions are added onto the sampling criticisms, it becomes clear that the study must be rejected, and the related studies supported by the MPS then fail as well.
The study was designed by Dr. Peter E. Haimes, who was qualified by the Court to testify as an equal-employment opportunity specialist. However, he did not qualify as a statistician. He was initially assisted by plaintiffs' counsel, who apparently did not have a statistical background, although she proved to have gained an impressive grasp of this field as the trial progressed. No statistician aided in designing the original MPS sample or directed its implementation. The MPS was a theoretically proper way of studying initial assignments; Dr. Siskin admitted that. However, the improperly drawn sample, designed and executed by non-statisticians, eliminates its ability to establish the probative facts.
The first problem was that the selection rules were changed in the midst of drawing the sample, as of 1968. The study was theoretically designed so that each black had white "matches;" these persons could be compared as to seniority, being hired at about the same time. Since seniority was thus controlled for, the "matches" could be used to see if contemporaneous white and black hires were assigned to jobs on a racial basis. The selection rules first matched up to five whites for each black; halfway through the study, Dr. Haimes lowered this to only two matches per black. This change caused an imbalance which could have built back in the seniority bias. Both Drs. Siskin and Shapiro testified that the disproportion of the whites in the pre- and post-1968 periods
placed the weight of the white seniority in the earlier periods. Since the seniority, taken as a whole, seems to shift from one time period to the next, the Court cannot conclude that this variable was properly controlled. Since Dr. Haimes and defendants' experts all agreed that this variable must be eliminated in a study of initial assignments, and the Court concludes it was not properly controlled here, the MPS cannot be considered probative.
Other studies, which were considered because their conclusions closely tracked the MPS results, do not even attempt to control for seniority. The "inactives" study (discussed below), and the Rod and Wire Mill and Pipe Mill studies, and other studies based on the Affirmative Action Program reports (AAP's) do not control for this factor. Since the MPS fails on this and other grounds, these other studies must also be disregarded as to the initial assignment issue. Plaintiffs argue that the AAP's roughly approximate where persons were initially assigned. All sides agree that the AAP's represent only a "snapshot" view of Fairless; they show where each employer was working on a given date, rather than precisely where they were initially assigned. A "rough approximation" is not enough alone to carry plaintiffs' burden.
To establish that the AAP studies reflected initial assignment, plaintiffs attempted to show that transfers were so rare that most employees stayed in their initial assignments. Plaintiffs introduced Appendix J, by which Dr. Litwin estimated that at most only 21/2% Of the employees transferred each year. Dr. Siskin testified that, based on a USS study, one out of three employees transferred from their departments between 1964 and 1975. After considering both of these analyses, the Court has determined that neither of them are reliable. Dr. Litwin's "estimate" was just that a last minute effort made by the statistician to justify the AAP's.
Dr. Siskin's study suffers from an over-inclusive definition of "transfer," as plaintiffs made clear in cross-examination. The professor testified that he was not sure whether a temporary assignment counted as a "transfer" or not. In fact, Dr. Siskin was not at all sure how the term was defined for purposes of the study. Ruling out both these studies as unreliable, the Court is left only with the uncontrolled AAP's. Although in the July 25 opinion, the Court accepted the studies as "further evidence of initial assignment discrimination," the weight given to them and to Dr. Litwin's "study," was in large part dictated by the acceptance of the MPS, the results of which they corroborated. Standing alone as they do now, seniority controlled only by the weak proof of Dr. Litwin's estimate, the Court now feels that they are not competent evidence on the issue of initial assignment.
A second, and perhaps even more damning criticism of the MPS was the failure to sample the entire population, or universe, about which conclusions were drawn. The MPS was drawn from the Master Employee File (MEF) from 1975. The file contained the records of each employee then working at Fairless. Drawing the sample from that source meant, of course, that those employees who had left USS' employ prior to that date could not be included. While Dr. Haimes, who is not a statistician, seemed unaware of the problem that omission of those former employees presented, Dr. Litwin recognized it immediately and took steps to remedy it. He sought to study these "inactives" to complete an entire study of the universe.
A sample can only predict for those populations from which it is drawn. This basic statistical principle was explained by Dr. Meier and recognized by Judge Bechtle in Presseissen, supra. Since plaintiffs seek to prove that initial assignments are made on a discriminatory basis, they had to sample all initial assignments, not just those of still-employed individuals. The MPS failed to sample the inactives, and thus cannot really instruct the Court on the entire workforce. The "inactives" might possess different demographic characteristics than the MPS sample. For example, if whites and blacks were equally assigned to unpleasant or underpaid jobs, the whites might quit those jobs at a higher rate than blacks, since they might perceive better outside job opportunities than blacks, who might stay with the jobs rather than face unemployment due to discrimination elsewhere. Furthermore, a number of other variables might differentiate the distribution of initial assignments of the actives and inactives. In order to be able to extend the study's conclusions to the entire population, Dr. Litwin attempted to study the inactives, by drawing a sample from USS' termination file for the years 1970 through 1975.
This study was shown by the defendants to be improperly devised and insufficient to complete the sample of the universe. The sample was drawn by pulling white and black files from the USS termination files at prescribed intervals.
However, in prescribing the intervals, Dr. Litwin apparently either miscalculated or was not given the accurate total number of files. As a result, the white files were more heavily sampled in the early years, since the sampler went all the way through the file and started over in order to pull 200 whites' files. The blacks, however, were not entirely sampled, since 200 files were pulled before the end of the file was reached. Based only on Dr. Litwin's expertise in July, the Court concluded that the validity of the sample was not affected by this "wraparound." 439 F. Supp. at 79.
However, the Court now has the benefit of additional expert testimony, most notably that of Dr. Meier, and has decided that the sampling techniques used to devise Appendix M were improper. Dr. Litwin testified that he was not a specialist in sampling theory; plaintiffs required him to be a multi-purpose statistical witness and his testimony suffers from that pressure. Dr. Meier sharply criticized the over- and under-sampling of the two groups. This was echoed by Dr. Shapiro. He concluded that the 400 files were not a statistically competent sample of the inactives.
Second, Dr. Meier pointed out that Appendix M did not solve the problem of an incomplete sampling of the universe. The file used only contained those inactives whose termination dates were between 1970 and 1975. It did not study all those hired and terminated since 1952, when the plant opened. Therefore, Appendix M and the MPS sampled only two "frames" of the total initial assignments: those of persons still employed in 1975 (from the MEF) and those terminated from 1970 until 1975. It did not even sample the entire universe of initial assignments during the limitations period. Those frames were not tied in any clear way to the population being studied, to show that they all shared the same characteristics. This type of error, according to Dr. Meier is a classic statistical flaw, and accounted for the inaccurate predictions of Thomas Dewey's victory in 1948. Dr. Meier concluded that since the total number from which the two samples were drawn consisted of only one-half of all initial assignments made, plaintiffs should have made efforts to establish that these frames accurately reflected the entire universe. Any number of factors could cause this partial sample to be biased. For example, a shutdown of one unit might distort the inactives study. Furthermore, as Dr. Shapiro pointed out, the inactive years studied were not randomly selected. Therefore, even though Appendix M sampled a portion of the inactives, it cannot be considered a statistical sample of those years, since the time periods were not chosen randomly. Since plaintiffs failed to justify statistically this partial sampling of inactives, the Court cannot assume that these two frames can serve as a basis for drawing conclusions about the entire number of initial assignments.
Taking all these criticisms together, the Court has decided that Appendix M does not properly complete the study of the population. Plaintiffs argue that these criticisms are merely theoretical and may have only a small impact on the results. As Dr. Meier testified on cross, a theoretical bias might have a negligible effect on measured quantity, but a major impact upon a study's reliability. The Court concludes that Appendix M cannot be used to rescue the MPS from its fatal flaw of excluding the inactives.
Two other points of some significance should be dealt with on the issue of the reliability of the MPS sample. First, defendants performed an analysis which purported to show that the data base contained a 28.8% Error rate in assigning individuals to clusters. On cross-examination, plaintiffs showed that some of the "errors" could be in fact disagreements about interpretation of the plaintiffs' data, and the definition of "clusters."
However, plaintiffs did not introduce any rebuttal evidence. At best, therefore, the Court can still find a significant error rate. While Dr. Shapiro agreed that there is no reason to believe that such errors are racially biased, slanting the study toward one direction more than another, the Court still feels that such errors cast further doubt on the reliability of the MPS. This is especially true when, as Dr. Shapiro testified, a small shift in any number would have a magnified effect on the statistical significance analyses. Defendants' other criticism that merits some discussion is the inclusion of the lower level crafts employees in the data on non-craft workers. Dr. Shapiro testified, as did Dr. Haimes, that the inclusion of crafts employees mixes the possible sources of discrimination of testing and initial assignment. This is because craftsmen have to pass certain tests, such as paper-and-pencil tests for the apprentices, which might in and of themselves be discriminatory. It was for this reason that Dr. Haimes originally decided to eliminate the crafts clusters, so that the issue of initial assignment discrimination would stand alone. However, the lower level crafts employees were not removed from the MPS by the plaintiffs' staff. Defendants claim that inclusion of this predominantly white group exaggerates the differences between any heavily black clusters and the remaining mass. Although this was proven by defendants to be true, it only changed the individual cluster statistics slightly. It did have greater changes on the overall picture, lessening but not eliminating the disproportions. If none of the other design flaws were present, the Court would not reject the MPS because of the crafts' inclusion. However, taken with all the other potential sources of distortion, this is simply one more reason to distrust the findings of the MPS.
Even if the Court were to assume that the MPS sample was proper in all respects, the methods used to reach conclusions appear now to be so suspect that the Court must reject them. At the time of the July 25 opinion, the Court was relying only on the plaintiffs' expertise. Here again, with the testimony of the defendants' experts to consider, the Court has weighed the evidence and has concluded that the plaintiffs have not carried their burden.
The plaintiffs' core contention was that blacks were disproportionately concentrated in five job areas the Blast Furnace, the Open Hearth, Masonry, Janitorial, and Transportation and General Services. These clusters were "undesirable" by plaintiffs' definition, 439 F. Supp. at 77, n.19. However, they did not rank highest on the plaintiffs' undesirability ranking. The clusters were picked, by Dr. Haimes and plaintiffs' counsel, as the Court stated previously because they were large, active in hiring and heavily black. All three of defendants' experts criticized this selection as "post-hoc." This is a serious flaw in a statistical study, for it hints at data manipulation. This occurs when data is viewed after it is accumulated and further analyzed only as to its unique characteristics. This distorts the differences shown in the data by removing them from a proper statistical context. As Dr. Meier recognized, this was not caused by Dr. Litwin, who was immediately aware of the problem when he came into the study which was almost completed, but by Dr. Haimes, who may not have been sophisticated enough in statistics to understand the implications. The fatal flaw in choosing the five clusters was that they were not picked because they were the most undesirable. Only two of them ranked in the "top" ten by plaintiffs own study (G-10), and of the "top" 20, four were black clusters and four were white clusters. They were picked for a reason internal to the data, that is, because they were heavily black. Even a lay person can deduce that if five groups are selected because they are the most heavily concentrated with blacks, they will be those most likely to be disproportionately black.
When Dr. Litwin came into the case, he recognized this problem of post-hoc selection immediately. He therefore devised a study, now called the "14-cluster analysis," to rebut this argument. He took the 13 clusters with at least 25 assignments made, and grouped the remainder of the 96 original clusters into one "super-cluster." This was done so that insignificantly small clusters were not weighted evenly with large ones. He then ran statistical significance tests on these clusters. He concluded, based on these tests, that since three of the fourteen clusters were significantly black, to a statistician, and according to chance only one should be, that there was an association between race and initial assignment.
The problem was that plaintiffs could not justify the cut-off point of 25. Defendants established that if smaller clusters were taken out of the "super-cluster" and counted in (with a cut-off of 20 or 15) the occurrences of the significances would have been statistically attributable to chance. Since the cut-off of 25 was arbitrary and cannot be justified by plaintiffs, the Court cannot find that plaintiffs eliminated chance as a factor. Plaintiffs attempted to use USS exhibit 81-25 to bolster their analysis. The Court finds that the exhibits used in cross-examining Dr. Siskin on this exhibit, P-3129 and P-3130 were never properly based on record evidence or authenticated by any witness. This whole examination of Dr. Siskin is thus without any basis that could serve as rebuttal evidence and cannot be considered to bolster the MPS' conclusions.
Plaintiffs also attempted to rebut this criticism by conducting a second analysis of the MPS data. Dr. Litwin performed a simulation, or "Monte Carlo" technique. Although this might have eliminated the possibility that the post-hoc selection influenced the results, the Court has concluded that the simulation was not done properly. Defendants' experts testified that the simulation should have been repeated by the computer 1,000 times in order to be reliable; Dr. Litwin stated that much of it was simulated only 100 times. The Court concludes that this seriously hampered its predictive ability. Second, the data underlying the Monte Carlo analysis is not identical with the MPS, in that a different data base, with different cluster and gross totals was used. Therefore, it cannot simulate the MPS, since it is not based on the same facts. Finally, the Court finds that Dr. Litwin's program was improperly constructed. It was too narrowly defined and eliminated consideration of disparities greater than plaintiffs had originally alleged. Also, it relied on the "super-cluster" as if it were not artificially constructed which in effect carried over one of the problems from the original 14-cluster analysis. The Monte Carlo analysis therefore cannot serve to justify the MPS' conclusions, because it is also not reliable evidence.
The Court has concluded that the MPS and all the related studies, after all the evidence is in, are not competent to raise an inference of discrimination in initial assignment. This conclusion has been reached with some trepidation, since the Court is not highly trained in statistical techniques. What it has attempted to do is to sift through all the expert explanations of the studies and decide which ones seem most credible. Plaintiffs' experts were unable at times to give convincing reasons for their opinions. Defendants' experts, while offering little data and mostly criticizing theory, presented fuller explanations of the statistical concepts involved and how they interact. Plaintiffs' inability to justify what they did in terms of statistical theories that seem proper to the Court caused the whole study to be viewed as unreliable. Taking all the knowledge the Court has acquired of this complex field of statistics and study construction, it has concluded that plaintiffs were unable to present a solid study for the Court's consideration.
Plaintiffs finally point to their "smoking gun," as the Court had termed it. This is the comment by one of the interviewers that he assigned blacks to "hot" jobs because they could "take the heat." First, this comment has not been proven to have had its alleged effect, since the failure of the MPS eliminated plaintiffs' ability to show blacks were disproportionately assigned "hot" jobs. Second, the prime witness who testified to this hearsay comment (the speaker died before trial) seriously was damaged in her credibility by facts brought out in a mid-trial injunction action. She requested that a discipline be enjoined, since she alleged it was for the sole purpose of harassing her for testifying. After reviewing affidavits, the Court decided that she was not entitled to an injunction because she had not established that her discipline was discriminatory. This incident established her, in the Court's view, as a person with a grudge against USS and against her personnel department superiors in particular. Her credibility thus called into question, and the relevancy of the "smoking gun" remark now removed by plaintiffs' failure to otherwise prove their case, the Court cannot find that discriminatory animus was shown.
Plaintiffs therefore have failed to maintain their prima facie showing of discrimination in initial assignment under either Title VII or § 1981 against USS. Since the defendants, in their case, presented credible evidence rebutting the major portions of the plaintiffs' case-in-chief, plaintiffs have failed to carry their burden by a preponderance of the evidence. Since the evidence as a whole fails to raise an inference of discrimination as to USS' policies and practices, the vicarious liability case against the Union also must fall.
The manning of the Galvanizing department and the Rod Mill occurred in late 1967 and 1968. The Court held previously that the Title VII statute of limitations extends only back to October 2, 1969. 439 F. Supp. at 69. Therefore, these incidents can only be considered as possible violations of § 1981.
In order to prove a claim of employment discrimination under that statute, illegal motive or intent must be shown. Croker, supra at 1181. The Court of Appeals has chosen not to decide this issue yet. Richardson v. Penna. Dept. of Health, 561 F.2d 489, 493 (3d Cir. 1977). It hinted, in Resident Advisory Board v. Rizzo, 564 F.2d 126, 140-145 (3d Cir. 1977), that § 1981 proof included evidence of discriminatory intent. This Court will follow its Croker holding, on the belief that these opinions and new authority supports this position. Lewis v. Bethlehem Steel, 440 F. Supp. 949 (D.Md.1977); Milburn v. Girard, 441 F. Supp. 184 (E.D.Pa.1977) (Luongo, J.); Delgado v. McTighe, 442 F. Supp. 725 (E.D.Pa.1977) (Broderick, J.); Contra, Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977).
Section 1981 is not an affirmative action program, as Judge Celebrezze noted in Long v. Ford Motor Co., 496 F.2d 500, 505 (6th Cir. 1974). He stated: "It is an equalizing provision, seeking to ensure that rights do not vary according to race. It does not require that persons be accorded preferential treatment because of their race." In Lewis v. Bethlehem Steel, supra, the Maryland district court held that in order to prevail under § 1981, a black employee would have to prove either that his treatment was intentionally dissimilar or that the policy's effect was intentionally dissimilar. Here, the evidence shows similarity of treatment. In the case of the Galvanizing crew, both blacks and whites grieved their exclusion and both races received the same results. The arbitrator decided that none of the employees were entitled to a new facility job under the Basic Labor Agreement, because none of them had the ability to perform the new jobs without training. On the Rod Mill, two whites grieved that less senior employees had been chosen because of other mill experience. Although the whites were offered jobs at the Rod Mill during the fourth step of the grievance processing, they were not allowed to "bump" those employees with less job time but more qualifications. It appears from this evidence that both white and black workers were excluded from first crews because of the application of subjective standards. The Court finds that this evidence defeats any inference of dissimilar treatment. Also, the Court notes that blacks excluded from the first crew were given positions on later crews. This also rebuts an inference of intentional discriminatory treatment.
It appears that, although the evidence of all-white first crews might raise an inference of disparity, this is rebutted when the Court looks at the paucity of black applicants. Although plaintiffs' evidence showed a statistical underrepresentation, this conclusion did not take into consideration the dearth of black applicants. Since the Court concludes that the plaintiffs have failed to show disparate effect, their case must fall.
Furthermore, even if the Court were to find that the composition of the Galvanizing and Rod Mill crews were such as would show a disparate effect, the evidence does not establish that such effect was intentional. In Croker, this Court held that statistical differences alone could demonstrate illegal intent under § 1981. Accord, Richardson v. Penna. Dept. of Health, supra. However, in order to prove intent by statistical proof alone, Croker held that the differences must be dramatic. Here, where the total numbers are so small eight for each of the Galvanizing crews and 14 picked for the Rod Mill crew the Court cannot find that statistics alone could be probative.
Plaintiffs attempted to buttress their statistical case by showing that historically all first crews at Fairless were predominately white. While historical evidence should be considered as part of the context in judging intent, Croker, supra at 1181, these events are significantly removed in time. The plant was first staffed in 1951, with the Blast Furnace, Open Hearth and Pipe Mill opening at about that time. All these first crews were white. The Court does not find this fact to be significant enough to show intentional discrimination. The only other evidence was presented by John Bysek, a former USS manager, who testified that the plant superintendent told him not to hire blacks for the first crew. The superintendent denied any such statement in his testimony and noted USS' early policies of integration. All the evidence from which the Court might infer intent is so weak that the Court will decline to make that inference.
Finally, the Court also notes that, even assuming the company had intentionally bargained for the right to select the earlier crews in order to discriminate, or that the subjective standards resulted in discrimination, the alleged incidents of discrimination are so sporadic and isolated that they cannot serve as the basis of a class-wide claim. Cf. Teamsters v. United States, supra.
The last facility to be opened at Fairless is the Electric Furnace and Caster division. The crews were picked in compliance with the seniority system. Plaintiffs apparently do not dispute this. Since the seniority system is the basis for such selections, and there has been no evidence of a lack of its bona fides or of intentional discrimination, the Court concludes that the staffing of this facility does not violate Title VII or § 1981. As noted above, the Teamsters case immunizes seniority-based decisions under § 703(h) of Title VII. The Court concludes that plaintiffs have failed to prove a case under § 1981 as to any new facility hiring and under Title VII as to the 1972 hiring.
Plaintiffs' third class-wide claim alleges that blacks are disproportionately excluded from the ranks of first-level management at Fairless Hills. During their case-in-chief, plaintiffs substantiated this claim by showing that in 1973 and 1974, blacks were seriously underrepresented in the first-level management positions.
As the Court noted in July,
USS attempted both of these challenges to plaintiffs' evidence in defendant's case-in-chief. In the plaintiffs' case, Dr. Litwin based his conclusion that blacks were statistically underrepresented in management on evidence that showed that 75% Of all first-level managers are drawn from the Fairless P & M workforce. To rebut this, USS introduced a study that showed that from 1972-1976, only 46.2% Of all management employees were originally hourly employees. However, the Court does not find this USS exhibit persuasive, since it fails to limit itself to first-level managers, which is the category in question. Since it includes higher level managers, who may be more probably recruited through management training programs and other outside programs, this exhibit would not be effective rebuttal. Dr. Litwin, however, accepted USS' argument on rebuttal and assumed that only 50% Of first-level managers were drawn from P & M. He still found their underrepresentation to be statistically significant, reinforcing the plaintiffs' prima facie case.
As the Court noted in its earlier opinion, 439 F. Supp. at 80-82, plaintiffs presented other evidence to buttress their statistics: testimonial evidence of a history of discriminatory informal policy, personal instances of exclusion from management jobs, and standardless criteria prone to discriminatory abuse. The evidence is very much the same as that found to uphold a similar claim in James v. Stockham Valves and Fittings Co., 559 F.2d 310 (5th Cir. 1977). First, new foremen are selected by incumbents and thus are a self-selected group. Second, the recommendations of the foremen are very discretionary with no built-in protections against bias. Third, as was shown by USS' own witnesses, there are no written guidelines and the criteria is not officially agreed upon. Fourth, as in Stockham, the criteria are quite subjective, even as spelled out in testimony by Fred Lafferty, the former superintendent of personnel. In general, as the Court noted before, one gets to be a foreman by "doing a good job." This is as subjective as the Stockham "best man" standard. See also Watkins v. Scott Paper Co., 530 F.2d 1159, 1193 (5th Cir. 1976). Finally, as the Court also noted before, although there are programs such as the Management Candidate program theoretically designed to bring minorities into management, they are so poorly publicized that most of the black witnesses did not know of them. There is no system for posting management vacancies, a practice which the appellate court disapproved in Stockham. The Court has considered this evidence also, and incorporates its earlier discussion of it, together with Dr. Litwin's rebuttal statistics, in determining that plaintiffs met their initial burden. Therefore, in order to avoid a finding of discrimination on these statistics and the other evidence, USS must show a legitimate business reason for this disparity.
USS first points to evidence presented by Dr. Seymour Wolfbein, a labor market analyst. Dr. Wolfbein's study showed that all of the experienced black foremen in the Fairless area labor pool were already employed. Therefore, the Court is asked to infer, no more black foremen could be hired. However, as the Court observed in its earlier opinion, an external comparison is not appropriate in a discussion of first-level management, since there is no evidence that USS hires these foremen off the street. Since the evidence shows that 50-75% Of the managers are from USS' own P & M workforce, the proper comparison is internal. This would determine how many blacks from Fairless should be promoted to management. This is what the plaintiffs did, and the study showed that blacks were in higher proportions in the P & M workforce than in management. Such an internal comparison is proper, since it is keyed to the pool from which such employees are drawn, under Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977). The Court incorporates its earlier statements on Hazelwood and this study, at 439 F. Supp. at 81-82 and finds Dr. Wolfbein's analysis irrelevant on this issue.
USS next argued that the comparison of the percentage of black managers to that of black workforce was improper because all members of the workforce were not qualified to become foremen. The most often-quoted figure showed that only 20% Of all P & M workers possessed the requisite qualities to become managers. However, in terms of the criteria elicited from USS' own witnesses, the Court cannot find that blacks overall are less likely to be qualified than whites. Therefore, they should be represented in the same proportions as in the P & M workforce. While USS' wage regressions raise an inference that Fairless blacks have somewhat less formal education and are older when hired than whites, these are not the qualities that would bar one from management. On-the-job skills and knowledge and good safety and discipline records appear to be most important These qualities appear to be equally shared by blacks and whites. USS has presented no evidence to the contrary. In Croker, defendant showed that because blacks were not hired until the 1960's they had less time on the job and thus were less likely as a group to have enough tenure to meet Boeing's criteria for management. Here, USS has not shown by any measurable criteria that blacks as a group lacked any of USS' subjective qualifications to become first-level managers. The education gap between blacks and whites at Fairless is not such as to cause the whites' dominance of management positions, since the lower management position require only basic reading and writing skills. No USS official testified that advanced formal education was a first-level management prerequisite.
USS finally argues that it was unable to hire blacks as managers because qualified blacks had turned down offers to move into management. To buttress this, it presented the testimony of four blacks. However, USS did not establish how many other offers were made to blacks and rejected. Nor did it show that whites disproportionately accepted management positions. When this testimony is balanced with the evidence by plaintiffs' witnesses of their strong but unrequited desire to enter management, the Court is not convinced that the paucity of black managers can be explained by an overall black unwillingness to serve. Nor does the Court find it credible that the blacks who refused were the only ones in the plant qualified to become managers.
This Court must hold, based on this evidence, that USS has not met plaintiffs' prima facie case with evidence showing that the management disparities are a result of any legitimate business reason. USS has no set tenure or educational criteria for promotion; no job-related tests are presently administered to identify the qualified individuals on an objective basis. Because the criteria are so subjective, this area of employment practices is especially susceptible to discriminatory abuse. As the evidence shows, a "buddy-buddy" system of promotion, unsupervised from above and unstructured in application, has resulted in persons selecting members of their own race in a self-perpetuating elite. Unless and until blacks are admitted to that group in numbers proportionate to their presence in the workforce, this pattern of discrimination will probably continue.
However, the Court cannot find the level of intent required to hold USS liable for discrimination in management selection under § 1981. Although the statistics and testimony establish that blacks were discriminated against in the management selection process involving lower-level managers, the various programs engaged in by USS at a higher level rebut an inference that such discrimination was intentional to the extent required under the Civil Rights Statute. Fairless has had a number of formal programs designed to open up its management positions to all, such as the Foreman Candidate Program and the Management Candidate Program. While it is difficult for the Court to square this evidence of good faith attempts to draw in black management by the upper echelons of USS management with the informal practice of excluding blacks by those lower-level managers (who are responsible for the actual hiring into first-level positions), it is certainly evidence that would mitigate a charge of intentional discrimination by the firm as a whole. To be sure, a company is liable for lower-level practices if known and left unchanged by supervisors.
Croker, 437 F. Supp. at 1194 and cases cited therein. However, the Court feels that where a single firm enunciates policies going in one direction while its practices go in another, that firm is liable not for intentional discrimination under § 1981 but the lower standard allowed under Title VII. This Court has repeatedly held, and reiterates that holding, that intent is not a requisite under 42 U.S.C. § 2000e. As the Court said in Croker, "(G)ood intentions and the existence of affirmative action programs are not defenses to a Title VII action." 437 F. Supp. at 1182. In Croker, Boeing demonstrated more than good intentions in its promotions to management. The number of blacks promoted to the Vertol Division's management was greater than blacks' proportion of the workforce during the limitations period. Therefore, the Court inferred that Boeing was acting out its stated intentions to cease discrimination in management. USS has not demonstrated that its good intentions have borne fruit, and that blacks are achieving management positions at any greater rate than prior to the promotion programs. Therefore, although these programs are sufficient to negate the § 1981 intent by showing a desire to establish a race-blind policy, their failure to advance more blacks to management merely supports the Court's conclusions that there has been no effect in fact on hiring practices. Therefore, USS is liable under Title VII for discrimination in elevation to management, but is not liable under § 1981.
Plaintiffs have argued that USS used the position of vicing foremen as a stepping-stone to foreman and discriminated against blacks in promotion to this position as well as to a first-level management position. A vicing foreman has a supervisory position, but remains in the P & M bargaining unit. Instead of a salary, he receives his hourly pay plus 10 percent. Plaintiffs assert that these positions were widely sought after, and in fact were more desirable than the first-level management positions because of potential for higher pay.
Plaintiffs have presented very little evidence that such positions were used by USS to "groom" individuals for later management positions. Furthermore, they have not shown that blacks were under-represented among these "10 percenters." In fact, they have presented no class-wide proof on this issue. Indeed, the Court had thought at the time of the motion to dismiss, that this issue had been dropped from their case on management. The only evidence that the plaintiffs put forward on this was the testimony of a few individuals, one of whom, Arthur Johnson, has his own case pending before this Court. Since counsel agreed that the defendants need not put in evidence rebutting the individual cases, the Court will decline to comment on the merits of those individual cases at this point. However, in view of the lack of class-wide proof on the issue of vicing, the Court will not extend its holding that USS has discriminated on the basis of race in promotion to first-level management to the position of vicing foreman. Even if the individual cases were found to be valid, they could not sustain a class-wide verdict, for without some proof of a discriminatory policy or statistical proof of disparate impact, individual cases are no more than isolated incidents of discrimination. See Teamsters v. United States, supra.
Plaintiffs have asserted a class-wide claim that blacks at Fairless are discriminated against in access to the prestigious and high-paying crafts jobs. This claim is made against the Company and vicariously against the Union. This claim, as it was presented at trial, relates primarily to the barrier allegedly presented by the test battery which an individual must pass in order to become an apprentice. Therefore, although other class-claims were raised earlier on the issue of the crafts jobs,
plaintiffs' case at trial was a "testing" case that has its origins in Griggs v. Duke Power Co., supra.
The Court should first note that after most of this portion of the opinion was drafted, the Union submitted the results of a final arbitration (cited as "Award," Infra ) on the USS tests as a supplement to the record. Although this was based on an interpretation of the labor contract rather than the federal law, it still contained relevant information. It is interesting to note that both the arbitrators and the Court agree in the result, that the tests are not "job-related." The Court will, from time to time, use this award in its discussion of general aspects of USS testing.
Before considering the state of the evidence on the issue of testing, it would be helpful for the Court to discuss the legal standards for the type of proof and the respective burdens of proof that are unique to this area. The first major case on testing was Griggs v. Duke Power Co., issued by the Supreme Court in 1971. In Griggs, the High Court held that tests which have a disparate effect on minorities must be shown to be "job-related" in order to be found acceptable under Title VII. A non-job-related test was a discriminatory one if minorities passed it at a rate substantially lower than that of whites. Four years later, in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280, the Supreme Court discussed in somewhat more detail what it meant by "job-related." In that case, the defendant had engaged an industrial psychologist to perform a validity study to demonstrate that success on the tests used was related to success on the jobs for which it was a selection device. The Albemarle Paper court looked to the guidelines promulgated by the Equal Employment Opportunity Commission (EEOC) as standards for evaluating the propriety of the psychologists' work.
"The message of these Guidelines is the same as that of the Griggs case that discriminatory tests are impermissible unless shown by professionally acceptable methods, to be "predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.' " Albemarle Paper, at 431, 95 S. Ct. at 2378, Quoting from 29 CFR § 1607.4(c).
The next issue is the question of which party bears the burden of proving each one of these portions of a Title VII testing case. Plaintiffs argue that the burden of persuasion shifts to defendants once plaintiffs demonstrated that the test has a disparate impact on blacks. They claim that defendant then has the burden of persuading the Court, by a preponderance of the evidence, that the test is job-related. Only if that standard is met does the burden of persuasion shift back to the plaintiffs. Since this is a very complex but important issue of law, the Court has decided to discuss this in some depth.
In this Court's last major Title VII case, Croker v. The Boeing Co. (Vertol Division), supra, the issue of burden of proof was discussed in general, rather than in terms specifically applicable to a testing case. Citing General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), this Court said that "the plaintiffs retain at all times the burden of proving discrimination by a preponderance of the evidence." 437 F. Supp. at 1183. Therefore, as in the initial assignment claim Supra, plaintiffs' prima facie case of disparate treatment or impact must be reexamined at the close of all evidence. Plaintiffs never lose the burden of proving that a disparity exists. However, under Title VII, the employer may defend not only by directly attacking plaintiffs' evidence of disparity, but also by raising an affirmative defense. These defenses are the "business necessity" arguments recognized in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). That case noted that the employer has the "burden of proving" its affirmative defense. USS has argued that it does not have the burden of persuasion, but only the burden of going forward with the evidence on its affirmative defense. This Court, consistent with the Croker decision, does not agree. The Court of Appeals for the Third Circuit has most recently addressed the issue of burden of proof in Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977). There, the court cited Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3d Cir. 1976), and said, "(I)f an employer produces evidence of a non-discriminatory reason for an employment decision, he may bear the burden of proof on that ultimate issue." 569 F.2d at 1239. In Ostapowicz, the appellate court was interpreting McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which outlines the burden of proof rules for a non-class Title VII case. Unequivocally, the Ostapowicz court said that the burden shifts to the defendant on a "business necessity" defense. "The defendant must prove its justification by a preponderance of the evidence." 541 F.2d at 399. This Court believes that the principles of Rodriguez and Ostapowicz require USS to prove the affirmative defense by a preponderance of the evidence here. See also EEOC v. E. I. duPont de Nemours and Co., 445 F. Supp. 223 (D.Del.1978); Vulcan Society of New York City Fire Dept. v. Civil Service Comm'n., 490 F.2d 387 (2d Cir. 1973). In Croker, the Court said that the plaintiffs retained at all times their "traditional civil litigation burden" of proving their cause of action, being that of discrimination. Here, defendant likewise retains its "traditional" civil burden of proving its affirmative defense by a preponderance of the evidence. The requirement that defendant prove a business necessity defense under Title VII is no different than that imposed upon a defendant in a personal injury case to establish assumption of risk or contributory negligence. The Court sees no reason to differentiate between Title VII and other civil cases on the issue of defendants' burden, since it does not do so regarding plaintiffs' burden. As outlined above, the Court finds much support for this position both in this Circuit and by the Supreme Court.
Not only does defendant have the burden of proving that its testing procedure is job-related, by conducting validity studies, but that burden is a heavy one. Ever since Albemarle Paper, courts have closely scrutinized validity studies to ensure that they were conducted properly and fairly in all respects. In Richardson v. Penna. Dept. of Health, 561 F.2d at 491, this Circuit's appellate court said: "(S)uch validation requires a Probing judicial review of the choices made by those responsible for the test." (Emphasis added.) The Seventh Circuit Court stated that defendant has the burden of showing that the test has a "manifest relation" to the job in question. United States v. City of Chicago, 549 F.2d 415 at 427, citing Griggs, 401 U.S. at 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 . That court required "convincing proof" before accepting a study or expert testimony. 549 F.2d at 432.
Defendant USS next argues that plaintiffs must show, as part of their Title VII prima facie case, evidence that the testing procedure is intentionally discriminatory. Certainly, that is true under § 1981, as the Supreme Court held in Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). However, the courts have been clear, since Griggs v. Duke Power Co., supra, that intent is not an element of a Title VII case, see discussion Infra, and especially in a testing case. Defendant has put forth a number of arguments as to the issue of intent. Defendant first contends that since both Griggs and Albemarle involved situations where pre-Act segregation was admitted, that a test or selection procedure must have its "genesis" as a device intended to perpetuate such discrimination in order to invoke the holdings of those cases. In examining the language of Griggs itself, it is clear that the High Court did not base its decision on an inference that the tests were merely devices to subtly and legally continue discrimination. In fact, the Court specifically rejected intent as an issue. "(G)ood intent or the absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds' for minority groups and are unrelated to measuring job capabilities." 401 U.S. at 432, 91 S. Ct. at 854. In fact, in spite of the power company's history of blatant discrimination, the Supreme Court felt that the company's policy of aiding employees to meet the job requirements suggested a lack of intent in instituting the questioned job criteria. "But Congress directed the thrust of the Act to the Consequences of employment practices, not simply the motivation." Ibid. (Original emphasis). This "no-intent" theme was repeated in Washington v. Davis, 426 U.S. at 247, 96 S. Ct. at 2051, where the Court said:
"Under Title VII Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved . . ."
Most recently, in the Teamsters case, the Court reaffirmed its decision in Griggs that the plaintiff need not show discriminatory motive in such a case. 431 U.S. at 336, n.15, 97 S. Ct. 1843, n.15.
The Court of Appeals for the Third Circuit has not read the factual limitation into Griggs that the defendant urges. In Richardson v. Penna. Dept. of Health, supra at 491, the appellate court discussed Griggs and said: "A discriminatory intent on the part of the employer need not be proved to show that a testing practice violates Title VII." Defendant claims that the decision in General Electric v. Gilbert, supra, requires that this interpretation of Griggs be altered. That argument was rejected quite recently by the Seventh Circuit appellate court in United States v. City of Chicago, 573 F.2d 416 (7th Cir., 1978). That court said that Gilbert held only that the maternity leave rule did not have a discriminatory effect, and that it reaffirmed Griggs on the issue of intent.
This Court must reject defendant's argument that the facts of Griggs and Albemarle require proof of a discriminatory intent or origin.
Section 703(h) is a specific exception to Title VII. As construed by the Supreme Court in Teamsters, it protects certain employment practices from attack even if their effect is to discriminate so long as they are not put into operation with discriminatory intent. In Teamsters, the High Court held that a seniority system which perpetuated the effects of pre-Act discrimination was not a violation of Title VII, where plaintiffs could not show the system was designed to continue such discrimination. In the case at bar, defendant USS points out that Congress included a "merit system" in the same section. USS contends that a "merit system" is one that uses tests to find or advance the qualified applicants. Therefore, the company contends, a merit system which uses tests must be shown to have been intended to discriminate or it is protected by this section. While the Court finds that the defendant may be correct in classifying Fairless' battery as part of a "merit system" in light of the Act's legislative history, it does not agree with the defendant's conclusion that plaintiffs must show that the testing was intended to discriminate. The Court holds that the standard for finding that a "merit system" is not bona fide and thus not protected by § 703(h) is the same as finding that a test is not protected by that section's testing language under Griggs.
Section 703(h), as written, was not included in the original Civil Rights Act of 1963. Almost from the beginning of the extremely lengthy debate on the Act, the senators were concerned about the issue of testing. This concern was brought about in large part by a report of a hearing examiner in an Illinois Fair Employment Practices Commission case, Myart v. Motorola, (reprinted in full at 110 Cong.Rec. 5662). The examiner recommended that Motorola be required to cease using its applicant screening exam. He described it as "outmoded" and said that a test should be substituted "which shall reflect and equate inequalities and environmental factors among the disadvantaged and culturally deprived." Ibid. As the Supreme Court observed in Griggs, as a result of Myart "(Congressional) debate revolved around claims that (Title VII) as proposed would prohibit all testing and force employers to hire unqualified persons simply because they were part of a group formerly subject to job discrimination." 401 U.S. at 434, 91 S. Ct. at 855. Although Senators Humphrey of Minnesota, Case of New Jersey and Clark of Pennsylvania sought to reassure their colleagues that Title VII would not limit an employer's right to test applicants as to ability, the Senate went unpersuaded.
The testing issue was but one of many that formed a barrier to the passage of the Civil Rights Act. Therefore the two party leaders, Senators Mansfield of Montana and Dirksen of Illinois, submitted amendment 1052 ("the Mansfield-Dirksen substitute"). Included in that package was a § 703(h), but only the present first sentence exempting "bona fide seniority and merit systems." Texas' Senator Tower, still concerned about the testing issue, pressed for passage of his amendment 652. The amendment would have added a specific exemption for applicant and promotional testing, provided that the "test is designed to determine or predict whether such individual is suitable or trainable." 110 Cong.Rec. 13492 (June 11, 1964). Senator Case objected to the broad wording of the amendment. He stated, "Discrimination could actually exist under the guise of compliance with the statute." 110 Cong.Rec. 13504. (June 11, 1964). At the same time, Senator Humphrey opposed the amendment as redundant of the already-existing language on merit systems. He said, in response to a colleague's question, that a test covered by the Tower amendment would have to be included as part of a merit system. Therefore, a test which was part of a bona fide merit system was protected by § 703(h) without further amendment, he implied. The Senator said that the § 703(h) language of the Mansfield-Dirksen substitute was added specifically after review of Myart v. Motorola. Ibid. See also 110 Cong.Rec. 13650-51 (June 12, 1964). Amendment 652 was defeated.
Undaunted, and still concerned about the testing issue, Senator Tower introduced amendment 952, which is the present § 703(h) testing language. He explained that he had redrafted it to be more specific, agreeing that his first attempt had been too loosely drawn. This addition was not opposed. Senator Humphrey urged its adoption, stating that it ...