job-class as a predictor of absenteeism is, for purposes of this litigation, severely undermined. That is, to the extent that blacks in each job classification have worse attendance records than whites in the same job classifications, that differential may properly be taken into account by Lukens in its disciplinary decisions, even though black disillusionment and frustration, and dissatisfaction with delayed advancement, may have produced the higher rate of absenteeism among blacks.
94. While the lingering effects of pre-limitations discrimination, perpetuated by the seniority system, cannot be taken into account to justify racial differentials in absenteeism, there is still the question whether such justification may properly be attributed to ongoing discriminatory practices. The crux of the absenteeism controversy can be stated as follows: Are blacks at Lukens more subject to discipline because they are less likely to attend, or are they less likely to attend because they are being discriminated against, or both?
Plaintiffs argue, with the support of impressive expert testimony from Dr. Kenneth Clark, that past discriminatory practices at Lukens, coupled with a reasonable perception that discrimination is still likely to be encountered in the work place, presents a serious obstacle to the attainment by blacks of good attendance records. I have no doubt that there are many psychological and emotional barriers which represent significant disincentives to upward mobility on the part of persons who still bear the scars of historic discrimination against members of their race.
The fact remains, however, that the issue in this case is not what vestigial burdens of guilt are properly assignable to society as a whole, but the legal liability of Lukens Steel Company. Under the law, Lukens is required to provide equality of opportunity; but it is not legally liable for failing to intrude upon the private lives of its black employees in an effort to induce them to avail themselves of opportunity. That is, unless Lukens is properly chargeable with tolerating a discriminatory environment, it has the undoubted legal right to insist that all employees, black or white, show up for work when they are supposed to, and complete their shifts as required. Mis-perceptions of the working environment, however subjectively reasonable, cannot form the basis for imposing legal liability upon a private employer. In a perfect world, the rule might well be otherwise. Greater sensitivity on the part of employers to the needs, problems, and perceptions of their employees is undoubtedly a worthy societal goal. But the law does not require perfection, and this court is not free to impose legal liability for failure to attain it.
To the extent, therefore, that differences in absenteeism explain racial differentials in disciplinary decisions, plaintiffs have no cause for complaint in this case.
95. It is difficult to draw firm conclusions about the discharges of non-probationary employees. At least since the present system of progressive discipline was instituted, pursuant to collective bargaining, in 1974, it is probable that the grievance procedures have adequately protected blacks covered by the collective bargaining agreement from discrimination in discharges. Most of the alleged discrimination is attributable to discharges during the probationary period.
96. In 1973 and 1974, Lukens sharply increased its work force. The "bulge" of hirings (and firings) during this period provide most of the raw data for the 1971-77 statistical studies mentioned above.
97. Lukens has presented studies (L-3019, 3020) purporting to show that blacks hired in 1973 had absentee rates in that year of 22.4%, compared to a rate of 15.14% for whites; and that for 1974 hires, the rate was 14.9% for blacks and 7.98% for whites. Lukens has also presented evidence to the effect that persons hired in each of those years, who were discharged by March 1 of the following year, had much higher absenteeism rates than persons who were not discharged (1973: 23.94% versus 13.99%; 1974: 12.96% versus 9.27%).
From these studies, Lukens argues that absenteeism in the first year is obviously (99% probability) related to prompt discharge, hence the greater absenteeism among blacks is a non-discriminatory explanation for the gross disparity in black discharges.
While the basic premise of these arguments is plainly correct -- persons who are absent a lot when first hired are less likely to survive the probationary period than persons who have good attendance records -- the analysis has serious flaws. The black-white comparison ("absentee rates in year of hire") is meaningless, since it lumps together persons hired at the end of the year, whose "absentee rates" would be derived from inadequate data, and persons hired earlier in the year. That is, a person hired in mid-December who missed one day's work is counted the same as a person hired in March who missed 45. Whether this defect adversely affects blacks or whites is impossible to tell; the point is, it makes the entire study unreliable.
Less serious in this context, but nonetheless interesting in view of its inconsistency with a major premise of Lukens' argument elsewhere -- that probationary and non-probationary discharges must be considered separately -- is the fact that both of these studies to some extent lump together probationary and non-probationary employees.
But the most telling point here is what these studies do not address, namely, the absenteeism rates of persons who were discharged. The contention that racial differentials in absenteeism account for racial disparities in discharges simply cannot be accepted in the face of uncontradicted evidence that the discharged blacks had better attendance records than the discharged whites.
98. Lukens concedes that the statistical evidence on discharges would justify an inference of racial discrimination, and that the evidence as a whole is consistent with that inference (i.e., does not refute it). Lukens argues, however, that the plaintiffs must go further, and provide specific evidence of erroneous discharges of blacks. That is, unless plaintiffs can show that certain blacks were discharged for no valid reason, they cannot prevail on this issue.
I reject that contention. The issue is whether there is a valid explanation for the fact that Lukens' evaluations of employee-performance during the probationary period so significantly favored whites. Both blacks and whites were deemed suitable for hiring initially. The probationary evaluations are largely subjective, and performed largely by whites. The criteria, physical health and willingness to learn, are not difficult to achieve. Absenteeism is not the explanation. What is?
99. A significant clue is provided, strangely enough, in Lukens' proposed finding of fact No. 410:
"It is also undisputed in the record that virtually all discharges took place in 1973 and 1974, a period in which Lukens, for EEO and affirmative action reasons, did no pre-employment testing."
Upon careful reflection, I find this assertion remarkable, and highly significant. It seems to suggest that, if left to its own devices, Lukens would have preferred not to hire so many blacks in the first place. Since "EEO and affirmative action reasons" (so as to remain eligible for lucrative government contracts) ruled out that choice, Lukens simply achieved its objective by means of its relatively unfettered discretionary decisions during the probationary period.
Viewed in its harshest light, this amounts to overt racial discrimination. Viewed more charitably, and probably more accurately, it would seem that preconceived racial assumptions on the part of Lukens' personnel in positions of authority caused them, without evil intent, to evaluate black performance more harshly than white.
100. I conclude that plaintiffs have established that those members of the plaintiff class who were discharged during their probationary periods were discriminated against on racial grounds.
VII. ACCESS TO SALARIED POSITIONS
101. Lukens' salaried work force, as described to the Federal Government as of July 14, 1983, consisted of the following:
Total No. Black Percentage
Category Employees Employees Black
Executives 45 0 0
management 149 2 1.3
foremen) 432 30 6.9
Professionals 194 12 6.1
Technicians 419 10 2.3
Salesmen 17 0 0
clerical 396 18 4.5
protection 43 5 11.6
workers 46 10 21.7
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