420 F.2d 1225 (4th Cir. 1970), 13013, Griggs v. Duke Power Co.

Docket Nº:13013.
Citation:420 F.2d 1225
Party Name:Willie S. GRIGGS, James S. Tucker, Herman Martin, William C. Purcell, Clarence M. Jackson, Robert A. Jumper, Lewis H. Harrison, Jr., Willie Boyd, Junior Blackstop, John D. Hatchett, Clarence Purcell, Eddie Galloway, and Eddie Broadnax, Appellants, v. DUKE POWER COMPANY, a corporation, Appellee.
Case Date:January 09, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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420 F.2d 1225 (4th Cir. 1970)

Willie S. GRIGGS, James S. Tucker, Herman Martin, William C. Purcell, Clarence M. Jackson, Robert A. Jumper, Lewis H. Harrison, Jr., Willie Boyd, Junior Blackstop, John D. Hatchett, Clarence Purcell, Eddie Galloway, and Eddie Broadnax, Appellants,

v.

DUKE POWER COMPANY, a corporation, Appellee.

No. 13013.

United States Court of Appeals, Fourth Circuit.

January 9, 1970

Argued April 10, 1969.

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[Copyrighted Material Omitted]

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Jack Greenberg, New York City (Conrad O. Pearson, Durham, N.C., J. LeVonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, N.C., Sammie Chess, Jr., High Point, N.C., James M. Nabrit, III, Norman C. Amaker, Robert Belton, Garbrielle A. Kirk, George Cooper, and Albert J. Rosenthal, New York City, on brief) for appellants.

George W. Ferguson, Jr., Charlotte, N.C. (Carl Horn, Jr., and William I. Ward, Jr., Charlotte, N.C., on brief) for appellee.

Russell Specter, Asst. Gen. Counsel, Equal Employment Opportunity Commission, and Gary J. Greenberg, Atty., Dept. of Justice (Daniel Steiner, Gen. Counsel, Philip B. Sklover, Atty., Equal Employment Opportunity Commission, Jerris Leonard, Asst. Atty. Gen., and Carol R. Aronoff, Atty., Dept. of Justice, on brief) for amicus curiae.

Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.

BOREMAN, Circuit Judge:

Present Negro employees of the Dan River Steam Station of Duke Power Company in Draper, North Carolina, in a class action with the class defined as themselves and those Negro employees who subsequently may be employed at the Dan River Steam Station and all Negroes who may hereafter seek employment

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at the station, appeal from a judgment of the district court dismissing their complaint brought under Title VII of the Civil Rights Act of 1964. (Duke Power Company will be referred to sometimes as Duke or the company.) The plaintiffs challenge the validity of the company's promotion and transfer system, which involves the use of general intelligence and mechanical ability tests, alleging racial discrimination and denial of equal opportunity to advance into jobs classified above the menial laborer category.

Duke is a corporation engaged in the generation, transmission and distribution of electric power to the general public in North Carolina and South Carolina. At the time this action was instituted, Duke had 95 employees at its Dan River Station, fourteen of whom were Negroes, thirteen of whom are plaintiffs in this action. The work force at Dan River is divided for operational purposes into five main departments: (1) Operations; (2) Maintenance; (3) Laboratory and Test; (4) Coal Handling; and (5) Labor. The positions of Watchman, Clerk and Storekeeper are in a miscellaneous category.

The employees in the Operations Department are responsible for the operation of the station's generating equipment, such as boilers, turbines, auxiliary and control equipment, and the electrical substation. They handle also interconnections between the station, the company's power system, and the systems of other power companies.

The Maintenance Department is responsible for maintenance of all the mechanical and electrical equipment and machinery in the plant.

Technicians working in the Laboratory Department analyze water to determine its fitness for use in the boilers and run analyses of coal samples to ascertain the quality of the coal for use as fuel in the power station. Test Department personnel are responsible for the performance of the station by maintaining the accuracy of instruments, gauges and control devices.

Employees in the Coal Handling Department unload, weigh, sample, crush, and transport coal received from the mines. In so doing, they operate diesel and electrical equipment, bulldozers, conveyor belts, crushers and other heavy equipment items. They must be able to read and understand manuals relating to such machinery and equipment.

The Labor Department provides service to all other departments and is responsible generally for the janitorial services in the plant. Its employees mix mortar, collect garbage, help construct forms, clean bolts, and provide the necessary labor involved in performing other miscellaneous jobs. The Labor Department is the lowest paid, with a maximum wage of $1.565 per hour, which is less than the minimum of $1.705 per hour paid to any other employee in the plant. Maximum wages paid to employees in other departments range from $3.18 per hour to $3.65 per hour.

Within each department specialized job classifications exist, and these classifications constitute a line of progression for purposes of employee advancement. Promotions within departments are made at Dan River as vacancies occur. Normally, the senior man in the classification directly below that in which the vacancy occurs will be promoted, if qualified to perform the job. Training for promotions within departments is not formalized, as employees are given on the-job training within departments. In transferring from one department to another, an employee usually goes in at the entry level; however, at Dan River an employees is potentially able to move into another department above the entry level, depending on his qualifications.

In 1955, approximately nine years prior to the passage of the Civil Rights Act of 1964 and some eleven years prior to the institution of this action, Duke Power initiated a new policy as to hiring and

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advancement; a high school education or its equivalent was thenceforth required for all new employees, except as to those in the Labor Department. The new policy also required an incumbent employee to have a high school education or its equivalent before he could be considered for advancement from the Labor Department or the position of Watchman into Coal Handling, Operations or Maintenance or for advancement from Coal Handling into Operations or Maintenance. The company claims that this policy was instituted because it realized that its business was becoming more complex and that there were some employees who were unable to adjust to the increasingly more complicated work requirements and thus unable to advance through the company's lines of progression.

The company subsequently amended its promotion and transfer requirements by providing that an employee who was on the company payroll prior to September 1, 1965, and who did not have a high school education or its equivalent, could become eligible for transfer or promotion from Coal Handling, Watchman or Labor positions into Operating, Maintenance or other higher classified jobs by taking and passing two tests, known as the Wonderlic general intelligence test and the Bennett Mechanical AA general mechanical test, with scores equivalent to those achieved by an average high school graduate. The company admits that this change was made in response to requests from employees in Coal Handling for a means of escape from that department but the same opportunity was also provided for employees in the Labor Department.

Until 1966, no Negro had ever held a position at Dan River in any department other than the Labor Department. On August 6, 1966, more than a year after July 2, 1965, the effective date of the Civil Rights Act of 1964, the first Negro was promoted out of the Labor Department, as Jesse C. Martin (who had a high school education) was advanced into Coal Handling. He was subsequently promoted to utility operator on March 18, 1968. H. E. Martin, a Negro with a high school education, was promoted to Watchman on March 19, 1968, and subsequently to the position of Learner in Coal Handling. Another Negro, R. A. Jumper, was promoted to Watchman and then to Trainee for Test Assistant on May 7, 1968. These three were the only Negroes employed at Dan River who had high school educations. Recently, another Negro, Willie Boyd, completed a course which is recognized and accepted as equivalent to a high school education; thereby he became eligible for advancement under current company policies. Insufficient time has elapsed in which to determine whether or not Boyd will be advanced without discrimination, but it does appear that the company is not now discriminating in its promotion and transfer policies against Negro employees who have a high school education or its equivalent.

The plaintiff Negro employees admit that at the present time Duke has apparently abandoned its policy of restricting all Negroes to the Labor Department; but the plaintiffs complain that the educational and testing requirements preserve and continue the effects of Duke's past racial discrimination, thereby violating the Civil Rights Act of 1964. 1

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The district court found that prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, Negroes were relegated to the Labor Department and deprived of access to other departments by reason of racial discrimination practiced by the company. This finding is fully supported by the evidence.

However, the district court also held that Title VII of the Civil Rights Act of 1964 does not encompass the present and continuing effects of past discrimination. This holding is in conflict with other persuasive authority and is disapproved. While it is true that the Act was intended to have prospective application only, relief may be granted to remedy present and continuing effects of past discrimination. Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5 Cir. 1969); United States v. Local 189, 282 F.Supp. 39, 44 (E.D.La.1968), aff'd, 416 F.2d 980 (5 Cir. 1969); Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 516 (E.D.Va.1968). See, United States v. Hayes International Corporation, 415 F.id 1038 (5 Cir...

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