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February 13, 1984


The opinion of the court was delivered by: FULLAM


 Plaintiffs in this class action alleging racial discrimination in employment seek equitable and monetary relief against both the defendant employer, Lukens Steel Company, and the defendant labor unions, the International and two local unions of the United Steelworkers of America. This Opinion addresses liability issues.


 A. Title VII and § 1981

 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is "a broad remedial measure, designed 'to assure equality of employment opportunities.'" Pullman-Standard v. Swint, 456 U.S. 273, 102 S. Ct. 1781, 1783-84, 72 L. Ed. 2d 66 (1982) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). The Act bars not only overt employment discrimination -- discrimination by disparate treatment -- but also policies that are superficially neutral but discriminatory in operation -- discrimination by disparate impact. Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). Both types of discrimination are here alleged both by the individual plaintiffs and by the plaintiff class.

 As the Supreme Court has noted, disparate treatment

is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.

 International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335, 52 L. Ed. 2d 396, 97 S. Ct. 1843 n. 15 (1977).

 The plaintiffs must show "not only 'the existence of disparate treatment but also that such treatment was caused by purposeful or intentional discrimination.'" Smithers v. Bailar, 629 F.2d 892, 895 (3d Cir. 1980) (citations omitted).

 The standard method of proving disparate treatment entails three steps. First, plaintiffs must establish a prima facie case. Next, the employer must articulate a legitimate business justification for its actions. If the employer does so, plaintiffs must then demonstrate that the proffered justification is merely a pretext for intentional discrimination. McDonnell Douglas, 411 U.S. at 804. Although the burden of production thus shifts from the plaintiff to the defendant and back again, the burden of persuasion remains with the plaintiffs throughout. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). In the Title VII context, the term " prima facie case" refers to the "establishment of a legally mandatory, rebuttable presumption" rather than the presentation of "enough evidence to permit the trier of fact to infer the fact at issue." Id. at 254 n. 7 (1981).

 The McDonnell Douglas plaintiffs alleged only discrimination in hiring; the particular elements of the prima facie case there identified have been modified to cover discrimination in other contexts. See B. Schleir & P. Grossman, Employment Discrimination Law (2d ed. 1983) 1318-1321 nn. 82-90 (collecting and discussing cases on discharge, discipline, promotion, transfer, layoff, training, and job assignment).

 Although an individual alleging disparate treatment is free to introduce direct evidence of a discriminatory intent, as a practical matter plaintiffs typically must rely on indirect evidence from which an inference of such intent can be drawn. Frequently, plaintiffs argue that the employer applied various policies differently to black and white employees; in response, the employer attempts to show that those comparisons are faulty because of factual dissimilarities. As trier of fact, the trial court must resolve these competing claims. See, e.g., Worthy v. U.S. Steel Corp., 616 F.2d 698, 702-03 (3d Cir. 1980).

 At least in theory, the McDonnell Douglas analysis is also applicable to class actions alleging a "pattern or practice" of classwide disparate treatment. Teamsters, 431 U.S. at 355. The class plaintiffs must initially demonstrate, by a preponderance of the evidence, that a pattern of disparate treatment exists and is the defendant's regular and standard operating procedure. Id. Such evidence frequently takes the form of statistical data. See Hazelwood School District v. U.S., 433 U.S. 299, 307-08, 53 L. Ed. 2d 768, 97 S. Ct. 2736 (1977); Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir. 1983). Once plaintiffs have produced such data, the defendant may rebut by showing flaws in the data or the statistical analysis. Absent a persuasive rebuttal, the court will infer that all class members were discriminated against in the fashion alleged.

 The second, and more prevalent, theory of liability under Title VII allows plaintiffs to challenge employment policies which, though neutral on their face, are discriminatory in operation. These "disparate impact" cases do not require proof of discriminatory motive. Griggs, 401 U.S. at 432. In Griggs and its progeny, especially Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975), the Supreme Court has articulated the procedure for proving such claims. The plaintiffs must first establish a prima facie case that the challenged procedure does in fact have a substantial adverse impact. Plaintiffs must also demonstrate "a causal connection between the challenged policy or regulation and a racially unequal result." EEOC v. Greyhound, 635 F.2d 188, 193 (3d Cir. 1980). The defendants can then attempt to demonstrate that those statistics are deficient and thus insufficient to make out a prima facie case. Dothord v. Rawlinson, 433 U.S. 321, 331, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977).

 If plaintiffs succeed in establishing a prima facie case, defendant must justify the challenged policy as job-related or otherwise a business necessity. Albemarle, 422 U.S. at 425. The burden of persuasion, however, remains with the plaintiffs; defendant's rebuttal burden is simply to "come forward with evidence to meet the inference of discrimination raised by the prima facie case." Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir. 1981 (en banc)). If the defendant does so, plaintiffs must then show that "a feasible yet less onerous alternative exists." Id. (citations omitted). It has long been established that properly validated job-related tests are permissible even if they have a disparate impact. Griggs, 401 U.S. at 433-36. Similarly, a bona fide seniority system -- one which was not adopted with intent to discriminate -- does not violate Title VII even though it has a discriminatory effect. Teamsters, 431 U.S. at 348-55.

 Section 1981

 Section 1981 prohibits intentional racial discrimination in making and enforcing contracts and in securing "equal benefit of all laws and proceedings." 42 U.S.C. § 1981. Proof of discriminatory intent is crucial; the provision "does not extend to facially neutral conduct having the consequences of burdening one race more than the other." Croker, 662 F.2d at 989. Although disparate impact thus is not itself actionable under § 1981, evidence of such impact "may be an important factor in proving racially discriminatory intent." Id.

 Variations on the McDonnell Douglas formula for making out a prima facie case have also been applied in § 1981 cases. See, e.g., Baldwin v. Birmingham Board of Education, 648 F.2d 950, 955 (5th Cir. 1981); Tagupa v. Board of Directors, 633 F.2d 1309, 1312 (9th Cir. 1980). As under Title VII, once the plaintiffs have made a prima facie case, defendant must show a legitimate reason for its actions; thereafter, plaintiffs must show defendant's proffered reason is merely a pretext. Baldwin, 648 F.2d at 956.

 To summarize, "disparate treatment" means simply that on a given occasion, one or more employees were treated less favorably because of their race; "pattern or practice" means simply a generalized version of this phenomenon; and "disparate impact" means simply that facially neutral policies or decisions have had a different, and adverse, impact on employees of a particular race.

 One must be careful not to over-categorize in this context. The analytical distinctions outlined above are of only limited utility. The ultimate questions to be answered are essentially the same in all employment discrimination cases: Has the defendant caused a given employee or group of employees to be discriminated against? Because of race? Because of something that occurred within the limitations period? If the answers to all of these questions are in the affirmative, is the action or conduct complained of justifiable, by reason of business necessity, a bona fide seniority system, or other legitimate factor? Both statistical and anecdotal evidence may be looked to in attempting to answer these questions (with, obviously, varying degrees of relevance and probative force).

 Finally, a word about "intentional discrimination" or "discriminatory animus." The aim of the law is equality of treatment and equality of opportunity for all races. Attainment of that lofty goal can be expected, in the long run, to ameliorate subjective racial attitudes, but such attitudes are not directly implicated in the enforcement scheme. An employer who hates Jews or Negroes, but who suppresses those feelings and treats all races and creeds evenhandedly, is not in violation of either Title VII or § 1981. On the other hand, an employer who admires and respects all races equally, but who knowingly excludes qualified blacks from consideration for promotion because they are black, is guilty of intentional discrimination. An employer may inadvertently discriminate (as, for example, if the employer is unaware of the racial identity of the affected employee, or is unaware of the adverse treatment); there is no liability for such inadvertent consequences because, without more, an inference of an intent to discriminate on racial grounds would not be supportable. But an employer who persists in implementing racially neutral policies or practices with actual awareness that they adversely affect blacks in comparison to similarly situated whites, is, in the absence of some overriding justification (such as adherence to a bona fide seniority system, or business necessity/job-relatedness) in violation of Title VII.

 B. Limitations Period

 This action was instituted on July 14, 1973. The appropriate limitations period for claims arising under 42 U.S.C. § 1981 is six years (derived from the then-pertinent Pennsylvania statute, 12 P.S. § 31). Davis v. U. S. Steel Supply, 581 F.2d 335 (3d Cir. 1978).

 The applicable limitations period for claims arising under Title VII of the Civil Rights Act is set forth in § 706(e) of that statute, 42 U.S.C. § 2000e-5(e), as amended in 1972. The 1972 amendments apply to all cases in which charges were then pending before the EEOC. In the present case the plaintiffs Dantzler, Hicks, Goodman, Meeks and Middleton had charges pending before the EEOC when the 1972 amendments became effective. In these circumstances, the limitations period is measured from the original filing date in each case, not merely from the effective date of the 1972 amendments. See Wood v. Southwestern Bell Telephone Co., 580 F.2d 339 (8th Cir. 1978); Inda v. United Airlines, 565 F.2d 554, 560-61 (9th Cir. 1977); cert. denied, 435 U.S. 1007, 98 S. Ct. 1877, 56 L. Ed. 2d 388 (1978); Dickerson v. United States Steel Corp., 439 F. Supp. 55, 69, n. 11 (E.D. Pa. 1977), vacated on other grounds, sub. nom. Worthy v. United States Steel Corp., 616 F.2d 698 (3d Cir. 1980).

 It is clear that, with respect to the claims of the plaintiff class, all class members are entitled to the benefit of the earliest filing date of the named plaintiffs. Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 246 (3d Cir. 1975), cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975). Indeed, there is authority for the proposition that all class members are entitled to the benefit of the earliest filing by any member of the class, whether or not named as a plaintiff. Webb v. Westinghouse Electric Corp., 78 F.R.D. 645, 653 n. 3 (E.D. Pa. 1978).

 The plaintiff Dantzler first filed charges before the EEOC on December 7, 1970, followed by a related filing with the Pennsylvania Human Relations Commission on December 31, 1970. This action was filed within 90 days after Dantzler received his right-to-sue letter, and he was a member of the class. His bar-date, for all claims fairly encompassed within the charges filed, is May 4, 1970 (300 days before March 1, 1971, the date 60 days following his initial filing with the Pennsylvania Human Relations Commission). In his original charges, Dantzler asserted a pattern of racial harassment, and discrimination in disciplinary decisions; his original charges named only Lukens as culpable. On August 10, 1972, Dantzler amended his charges to include the unions, and was thereafter permitted to intervene as a named plaintiff in this action.

 The net effect of these circumstances, in my view, is that the entire class is permitted to assert Title VII claims against Lukens for the alleged pattern of racial harassment, and for discriminatory treatment in the administration of discipline, from and after May 4, 1970.

 The named plaintiffs Goodman, Meeks, Hicks and Middleton filed broad-scale charges against both Lukens and the union, before the EEOC, on January 28, 1972. This produces a starting date of April 6, 1971, for (a) all claims against the union defendants, and (b) all claims against Lukens not encompassed within the original filing by the plaintiff Dantzler.

 To summarize, the following claims are cognizable in this litigation: (1) all claims for intentional discrimination, in violation of 42 U.S.C. § 1981, arising after July 14, 1967; (2) claims for Title VII violations by the defendant Lukens, in the form of racial harassment and discriminatory discipline, arising after May 4, 1970; (3) all other claims for class-wide discrimination, against both Lukens and the union defendants, arising after April 6, 1971; and (4) irrespective of the class issues, the individual claims of disparate treatment asserted by those individual plaintiffs who have been issued right-to-sue letters by the EEOC.

 Thus, nothing which occurred before July 14, 1967 can support the grant of any relief in this litigation. Evidence concerning pre-1967 events is relevant only to the extent it sheds light upon events which occurred during the limitations period. And nothing which occurred before May 4, 1970, can support the grant of any relief in this litigation absent proof of discriminatory animus.


 I. The Parties

 1. Named plaintiffs Charles Goodman, David Dantzler, Jr., Ramon Middleton, John R. Hicks, III, Dock L. Meeks, Lymas Winfield and Romulus Jones are black employees or former employees of the defendant Lukens Steel Company. Dantzler, Middleton, Hicks, Meeks and Goodman are or were hourly employees; Winfield has worked in both hourly and salaried positions; and Jones is a salaried employee. The named plaintiffs represent a class consisting of all black persons who are, or who at any time on or after June 14, 1967 have been, or who in the future may be, employed by Lukens.

 2. Plaintiff United Political Action Committee ("UPAC") is an unincorporated association formed to combat race discrimination in Chester County. In 1973, 32 of its members were past or present employees of Lukens (and were black). UPAC had received many complaints of racial discrimination at Lukens before this suit was filed.

 3. Defendant Lukens is the oldest independent steel company in continuous production in the United States, and produces a variety of specialty plate steel products. Lukens' major production facility is located in Coatesville, Pennsylvania, and Lukens is the largest employer in Chester County. Until the mid-1950s, Lukens actually consisted of three separate corporations: Lukens Steel Company, By-Products Steel Company and Lukenweld, Inc. During the period of time directly involved in this litigation, all had been merged into a single corporation, Lukens Steel Company.

 4. The total Lukens work force since 1967 has varied between approximately 4,200 and 5,300 employees. The total number of hourly employees at Lukens since 1967 has ranged between approximately 2600 and 3900.

 5. Between 1967 and 1978, the percentage of black employees in the hourly work force at Lukens ranged from 21.8% to 24.1%.

 6. The defendant United Steelworkers of America ("the International Union") and its local unions, the defendant Unions 1165 and 2295 ("the Local Unions") are labor unions, and are the certified collective bargaining agents of Lukens' hourly employees.

 A predecessor of the International Union, the Steelworkers Organizing Committee ("SWOC") became the certified collective bargaining agent of Lukens' hourly employees in 1937. At or about the same time, Local 1165 began to represent hourly employees of Lukens and By-Products Steel Company, and Local 2295 began to represent Lukenweld employees.

 II. Jurisdiction and Procedural Matters

 7. On December 7, 1970, named plaintiff David Dantzler, Jr. filed a charge of employment discrimination against Lukens with the Equal Employment Opportunity Commission ("EEOC"), alleging that he had been wrongfully terminated from employment on December 4, 1970, because of race. On December 31, 1970, Dantzler filed the same charge against Lukens with the Pennsylvania Human Relations Commission ("PHRC"). On August 10, 1972, Dantzler filed an amended charge of discrimination with the EEOC against both Lukens and Local 1165, alleging that, for reasons of race, Local 1165 had failed to represent him adequately in his disputes with Lukens.

 8. On March 9, 1971, named plaintiff Ramon Middleton filed a charge of employment discrimination against Lukens with the Pennsylvania Human Relations Commission, alleging racial discrimination in the staffing of the (then new) Strand Casting Subdivision, on or about March 1, 1971.

 10. In due course, the EEOC found no probable cause to believe Title VII violations had occurred with respect to the various individual charges, and issued "right-to-sue" letters as follows: to Goodman on March 14, 1973; to Dantzler on March 30, 1973; to Middleton on April 13, 1973; to Hicks on June 6, 1973; and to Meeks on December 12, 1973. Although finding no probable cause to support the individual complaints, the EEOC did make a finding to the effect that Lukens under-utilized black employees on a plant-wide basis, and "has excluded blacks as a class from its supervisory and clerical positions . . . ." Because these findings relate to matters not encompassed within the specific charges then pending before the EEOC, they have no probative weight in the present case. They represent merely an adverse finding on issues which the company had never been called upon to defend. Their (marginal at best) relevance to this case is that they were communicated to Lukens and the unions, and therefore arguably should have alerted them to potential problems which should be addressed.

 11. Plaintiffs Goodman, Middleton, Jones, Winfield and UPAC filed this suit on June 14, 1973. On June 16, 1975, the court granted plaintiffs Hicks, Dantzler and Meeks leave to intervene as parties plaintiff, and certified the case as a class action.

 12. A hearing on plaintiffs' request for a preliminary injunction was held on October 2, 3, and 4, 1979. At the conclusion of the hearing, the court rendered certain oral findings of fact and conclusions of law, and granted partial relief in a written order dated October 9, 1979.

 13. The trial encompassed 32 days of testimony, over the period from February through June 1980.

 14. After the testimony was transcribed, the parties submitted voluminous requests for findings of fact and conclusions of law, comments upon their adversaries' requests, post-trial briefs, etc. Plaintiffs' requests for findings of fact number 693 (many with numerous subparagraphs), covering 345 pages. The defendant Lukens filed a 595-paragraph, 265-page "response," and also filed its own request for findings of fact, numbering 550, set forth in 290 pages. The unions' "comments" cover 260 pages plus 2 appendices; and the unions submitted 427 separate findings of fact, covering 353 pages. In all, these materials aggregate 1,773 pages.

 In addition, plaintiffs submitted a 78-page post-trial brief; defendant Lukens' brief runs to 114 pages; the unions filed an 89-page brief with a 58-page appendix; and plaintiffs' reply brief totals 139 pages. Thus, the court was faced with some 478 pages of briefing. In addition, counsel have favored the court with a steady stream of letter-briefs clarifying, refining, and updating their respective positions.

 III. Background Information Concerning the Organization of the Work Force At Lukens

 A. Hourly Work Force

 15. The relationship between Lukens' hourly employees and the company has been governed by collective bargaining agreements entered into every several years since 1937. Since 1957, these agreements have required hourly employees to hold union membership and pay union dues.

 16. Lukens and the unions have regularly included in the Lukens' collective bargaining agreements the same terms and conditions adopted by the International Union and the largest nine or ten steel companies. This is known as "pattern bargaining."

 18. In accordance with the collective bargaining agreements, jobs rated at job class 5 and above, and one-third of the jobs rated in job class 4, are formally divided into job groups known as seniority subdivisions. As of July 14, 1973, there were 68 seniority subdivisions at Lukens.

 19. All jobs rated at job classes 1, 2 and 3, and two-thirds of the jobs rated at job class 4, are not included within any seniority subdivision, but are part of one large job group known as the "pool". Since 1965, the pool jobs have been divided among seven "area pools," each of which relates to a group of seniority subdivisions. There are, however, some seniority subdivisions which have no related "area pool".

 20. Lukens' hourly employees accumulate two kinds of seniority. "Company seniority" is based upon length of service as an employee of Lukens; "subdivision seniority" is measured by the duration of employment within a particular subdivision. Employees holding "pool" jobs do not accumulate any subdivisional seniority.

 21. If an employee leaves a subdivision (for example, by way of layoff or voluntary transfer) and begins work in another subdivision, he continues to maintain the subdivisional seniority he had accumulated in his former unit. From the date he begins working in his new unit, however, he begins to accumulate subdivisional seniority only in that unit. Thus, an employee cannot accumulate subdivisional seniority in more than one subdivision at a time.

 22. When a job vacancy occurs within a seniority subdivision, qualified employees actually holding jobs within that unit have the first preference to fill the vacancy, in order of their respective subdivisional seniority. The company is not required to provide formal notice of a job vacancy to employees within the unit where the vacancy occurs, and the practice of providing such notice differs from unit-to-unit, but in fact such notice is usually provided, in one form or another.

 23. If no employee actually working in a seniority subdivision seeks to fill a job vacancy occurring in that unit, employees who have previously been laid off from that subdivision are recalled on the basis of subdivisional seniority. Thus, employees retain "recall rights" to jobs in units from which they have been laid off or have transferred, but they may only exercise such rights if no employee actually working in that unit desires to fill the vacancy.

 24. If a job vacancy cannot be filled from among employees actually working in the unit, or from employees exercising recall rights to the unit, employees working anywhere in the plant may transfer to the vacant position; assuming ability and physical fitness are relatively equal, company seniority governs the selection.

 25. Before August 1, 1971, there was no plant-wide posting or any other formal notice of job vacancies not filled from within the unit or by the exercise of recall rights. Employees interested in transferring to a different subdivision were permitted to file with the Employment Department forms known as "request for transfer" forms, on which they designated their job preference. Vacancies which could not be filled from within the unit or through recall rights were supposed to be filled by the employment office by selecting the qualified employee with the most company seniority who had a request for transfer form to that unit on file.

 26. Since August 1971, the collective bargaining agreements have required that notices of job vacancies which could not be filled from within the unit or through recall rights were to be posted at the various clock stations throughout the plant. Employees desiring to apply for the vacancy sign their names on a list maintained by the Employment Department. If they sign the list within the time period specified in the notice, they are entitled to consideration on the basis of their company seniority. If they sign up after the deadline (below the "red line"), they are eligible for consideration on the basis of their company seniority, but only if the vacancy cannot be filled from among those whose applications were timely.

 27. Under the various collective bargaining agreements, seniority (whether company or subdivisional) is the deciding factor in determining who receives a vacant job only when ability and physical fitness are relatively equal. Both before and after June 14, 1967, the company has used a variety of tests to determine eligibility for various hourly jobs, and has also based eligibility on an employee's disciplinary record with the company, and his supervisory evaluations.

 28. Layoffs within a seniority subdivision are governed by subdivisional seniority, the least senior employee being laid off first. If an employee is laid off from one seniority subdivision but has previously worked in another subdivision, he may "bump" any employee in the other subdivision who has less subdivisional seniority in that unit. If an employee laid off from a subdivision is unable to "bump" into another subdivision, he may replace any employee holding a pool job who has less company seniority.

 29. The foregoing procedures concerning transfers, promotions and layoffs have been in effect since the early 1940s, except that the rules governing "pool" jobs were instituted in 1962, and the rules governing plant-wide posting of job vacancies were instituted in August 1971.

 B. Salaried Work Force

 30. The salaried employees at Lukens range from operating management and professional personnel to plant guards and janitors.

 31. Managerial positions are arranged in the following hierarchy of jobs, from the highest level to the lowest:

Officers (approximately 11 to 13)
Managers (approximately 23 ...

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