the differential between the black and white rates is still statistically significant. Forty percent of the blacks passed the DAT-NA, as compared with 74% Of the whites. On the Minnesota exam, 43% Of the blacks and 69% Of the whites passed. More were successful on the Bennett, where 61% Of the blacks and 91% Of the whites passed. However, to pass the entire battery, an applicant had to have a concurrence of pass rates on all three tests.
To complete their prima facie case, plaintiffs demonstrated that the jobs in question do not have a proportionate number of blacks as compared to the plant as a whole. In the main plant, 2.7% Of the crafts employees were black, as compared with a plant black population of 12.2%. In 1975, the figures were 3.6% Compared with 12.4%. In the Pipe Mill, the percentage of craftsmen who were black was 1.6% As compared with the plant-wide 13.8% Rate. In 1975, the Pipe Mill crafts were 8.1% Black and the Mill was 14.5% Black. These differences are statistically significant. Dr. Litwin testified that the underrepresentation in the Rod and Wire Mill crafts is also statistically significant. Plaintiffs also showed significant underrepresentation in the apprentice program, with 2.1% Of the apprentices being black in 1968 and 1.7% In 1969 compared with the plant total of 8.3%. Finally, in Metallurgy and Inspection jobs, for which the battery was a requirement until 1970, the disparities are very great. In 1973, three out of 97 employees were black. By 1975, this had changed to 11 out of 147, still less than the plant-wide percentage.
To attack the prima facie case directly, USS has put forward only a few arguments. First, they presented Dr. Wolfbein, who contended that blacks were actually overrepresented in the crafts as compared with their presence in the outside workforce. As in the case on access to management, the Court finds Dr. Wolfbein's testimony to be irrelevant. The testing issue here is not whether blacks applying off the street to Fairless get the crafts jobs, but really is whether internal access to these jobs is barred by the requirement of the apprentice battery. Thus, the relevant population to be studied is not the number of blacks already trained and employable on the outside, but the number of potential applicants at Fairless, which is presumed to be the entire P & M workforce. In James v. Stockham Valves, 559 F.2d at 341, that Court of Appeals rejected evidence similar to Dr. Wolfbein's, on a question of black representation in crafts. In Stockham Valves, primary access to these jobs was through the in-house apprentice program, as is true at Fairless. This Court rejects Dr. Wolfbein's evidence as irrelevant to the plaintiffs' prima facie case.
Second, defendant has attacked plaintiffs' statistics as inconclusive. It argues that the statistics are faulty because they do not allow for re-testing, which might distort the figures. Defendant argues that if blacks fail and re-take the test, and whites pass it on the first try, then the black statistics are distorted vis-a-vis the white. The problem with this argument is that it builds in an assumption of adverse impact, in that it assumes that blacks will fail (and fail again) more often than whites. An equal failure rate between the races would not affect the statistics, and the disparities would remain the same. Therefore, the Court either accepts the plaintiffs' statistics as evidence of disparate impact or accepts defendant's assumption of differential pass rates, which implies adverse impact. Either way, the burden shifts to the defendant.
Plaintiffs have shown that blacks are underrepresented to a statistically significant degree both in the apprentice programs and the crafts and other jobs in question. The Court believes that, even without the MPS figures, this fact is an adequate basis for inferring that the selection process, or one part of it, has a disparate impact. Defendant argues that in order to show a disparate impact in selection, plaintiffs cannot show only a disparate population in the crafts, but must show disparate hiring rates, as through the MPS' study of initial assignments. Although those data would have been preferable, their absence does not defeat plaintiffs' case. In Washington v. Davis, supra, the Supreme Court noted that the district could have relied on the underrepresentation of blacks in the police department, coupled with the high black failure on the test, as prima facie evidence. In James v. Stockham Valves, 559 F.2d 310 (5th Cir. 1977), plaintiffs met their burden by showing gross disparity between blacks and whites in jobs requiring high scores on tests along with evidence of disparate pass rates. In an earlier case, Watkins v. Scott Paper Co., 530 F.2d 1159, 1185-1186 (5th Cir. 1976) that appellate court found that a very small percentage of blacks were in the crafts. "(A) statistical showing of black exclusion from a particular kind of job establishes a prima facie case of discrimination," that court held.
Since there is disparity in the craft population as a whole, the Court must examine the portions of the selection process to judge if any of the parts are discriminatory. Rule v. Int'l Association of Bridge Workers, 568 F.2d at 565, n.10. "Where the total selection process has an adverse impact upon a substantial racial group in the labor market, the individual components of that process such as a screening test are also to be evaluated for adverse impact." NAACP, Ensley Branch v. Seibels, 14 Fair Empl. Prac. Cas. (BNA) 670, 13 EPD P 11,504 (N.D.Ala. Jan. 10, 1977). As the Court noted earlier, a large portion of those in the crafts jobs have come through the apprentice program. Since there is no evidence that the non-apprentice route to crafts jobs is discriminatory, the Court must look to the apprentice program, and the selection process for that program, as the source of a possible discriminatory barrier. United States v. City of Chicago, 549 F.2d at 429, n.12. In order to show that the apprentice battery is the discriminatory element, the plaintiffs must show 1) that it is causally linked to the population disparity and 2) that it disparately selects persons for the apprentice program.
In Neloms v. Southwestern Elec. Power Co., supra, the court said that there must be a cause and effect relationship between a selection device and the alleged disparity in population. There, the Court found that no employee was denied advancement because of his failure to pass the test. In the instant case, the test battery is the primary, if not the sole, selector. This was recognized by the company in the arbitration over the testing program. Award, at 2. In the studies presented by USS, it was noted that although passage of the battery is not an absolute requirement, it was rare that employees who did not pass them were admitted into the program. In the first study, the Fairless psychologist noted that although an average standard score of zero was needed to pass the battery, a few apprentices in the validation study had scored below that. In the second Fairless study, the author said that the only persons selected for the program who had not passed the new battery were those who had qualified under the pre-1973 battery. The Court can infer from this that the successful applicant who does not pass the battery is the rare exception that makes the rule. Since the test impacts disparately and there is no other significant selection device, the Court finds that the test disparity is causally connected to, and was reflected in the underrepresentation of blacks in the crafts. See also Friend v. Leidinger, 446 F. Supp. 361 (E.D.Va.1977).
Second, the Court must consider if the differences in the pass rates are such that would imply an adverse impact. First, the Court observes that the differences are statistically significant, which means they cannot be attributed to chance or randomness. Second, the Court finds that the statistics meet the definition of "adverse impact" under the Department of Justice guidelines (DOJ), which have been accepted by some courts as appropriate criteria for judging such impact. In Friend, the court used 28 CFR § 50.14 not as "a hard and fast rule," but only as a "rule of thumb." At 368. In Seibels, Judge Pointer also relied on § 4b of the DOJ guidelines, which state:
"A selection ratio for any racial, ethnic or sex group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded as evidence of adverse impact."