474 F.2d 906 (5th Cir. 1973), 71-3293, United States v. Georgia Power Co.

Docket Nº:71-3293, 71-3447.
Citation:474 F.2d 906
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. GEORGIA POWER COMPANY et al., Defendants-Appellees. Charles KING et al., Plaintiffs-Appellants, v. GEORGIA POWER COMPANY et al., Defendants-Appellees.
Case Date:February 14, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 906

474 F.2d 906 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellant,

v.

GEORGIA POWER COMPANY et al., Defendants-Appellees.

Charles KING et al., Plaintiffs-Appellants,

v.

GEORGIA POWER COMPANY et al., Defendants-Appellees.

Nos. 71-3293, 71-3447.

United States Court of Appeals, Fifth Circuit.

February 14, 1973

As Amended on Denial of Rehearing March 16, 1973.

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[Copyrighted Material Omitted]

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John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., John N. Mitchell, Atty. Gen., Stephen Glassman, David L. Rose, Attys., Jerris Leonard, Asst. Atty. Gen., Civil Rights Div., Dept. of Justice, Washington, D. C., for plaintiff-appellant United States.

Elizabeth R. Rindskopf, Howard Moore, Jr., Isabel Gates Webster, Atlanta, Ga., Jack Greenberg, William L. Robinson, Morris J. Baller, New York City, John H. Ruffin, Jr., Augusta, Ga., for plaintiffs-appellants Charles King and others.

Fred W. Elarbee, Jr., Robert L. Mitchell, J. Lewis Sapp, Atlanta, Ga., for defendants-appellees Georgia Power Co. and others.

Matthew Perry, NAACP, Columbia, S. C., Daniel Steiner, Gen. Counsel, Lutz Alexander Prager, E.E.O.C., Washington, D. C., for other interested parties.

David Blasband, Frederick F. Greenman, Jr., New York City, for amicus curiae, The Psychological Corp.

James D. Hutchinson, Ronald S. Cooper, Washington, D. C., for amicus curiae, American Psychological Association.

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

TUTTLE, Circuit Judge:

This complex and multi-faceted employment discrimination case encompasses virtually every aspect of Georgia Power Company's hiring and promotion practices since July 2, 1965, the effective

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date of the Civil Rights Act of 1964. A "pattern or practice" suit and two private class actions, all brought under Title VII of the Act, were consolidated for trial below. 1 Though the district court afforded some relief and recognized that many of the company's practices were prohibited under the Act, it is argued on appeal that the court's order did not go far enough. Plaintiffs appeal from (1) refusal to enjoin the company from administering employment aptitude tests which exclude blacks from promotion at a higher rate than whites, (2) denial of back pay to discriminatees, (3) inadequate remedies to compensate for hiring and recruitment policies favoring whites, (4) failure to award company seniority to all black discriminatees under the "rightful place" theory, and (5) granting insufficient attorney's fees to the lawyers in the private action. The company cross-appeals the court's order to discontinue the prerequisite of a high school education for all positions other than laborer.

Georgia Power, a company incorporated under the laws of the State of Georgia, engages in the production, transmission, distribution, and sale of electrical power. As of December 25, 1970, only 543 of the company's 7515 employees were black (7.2%) despite the existence of a large pool of black applicants for positions. 2 Until July 29, 1963, an open and unvarying policy of the company prevented black persons from competing for any but the most menial and lowpaying jobs within the corporate structure. While blacks were classified exclusively as janitors, porters, maids, and laborers, almost all white employees occupied higher positions.

Though the formal prohibition of black advancement and transfer to traditionally white jobs was terminated in 1963, little statistical difference in job placements of blacks had occurred by January 10, 1969, when the Attorney General filed suit against Georgia Power. All ninety-five blacks hired during this period were initially assigned to the position of laborer, while 85% of the 627 whites hired in the steam plants, the general repair shop, and in the Atlanta and Macon Operating Divisions were assigned to entry-level jobs higher than laborer. Though whites hired as laborers have remained in that job an average of only three months and one week before promotion to higher paying jobs, blacks have remained laborers an average of two years and nine months before being promoted. While only one white hired during this period had not been promoted at the time of trial, only thirteen of the black laborers had been promoted.

Wholly aside from individual discriminatory practices, Georgia Power has adhered to two company-wide policies

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which have had the effect of barring more blacks than whites from employment with, and advancement within, the company. Beginning in 1960, all new employees were required to have high school diplomas or present evidence of equivalent educational accomplishment. From August 19, 1963 to date, all new employees have in addition been required to pass a battery of tests developed by the Psychological Corporation (a commercial organization not to be confused with the American Psychological Association). 3 Employees hired prior to the effective dates of each of these policies were allowed to remain with the company without complying with them. However, in 1964, the company did impose the high school education requirement on all incumbent employees seeking to transfer from the previously all-black positions of janitor, porter, and maid but did not add that prerequisite to transfers or advancements elsewhere in the company's structure. Finally, on November 19, 1964, the educational and testing requirements were suspended for hirees into the laborer classification upon agreement by them not to progress further in the company without meeting them.

THE TESTING REQUIREMENT

1. Legislation-Griggs

In Title VII of the Civil Rights Act of 1964 Congress expressly recognized testing as a permissible prerequisite to employment in this language:

[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. (Emphasis supplied.)

Section 703(h).

[42 U.S.C.A. § 2000e-2(h)]

In Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court held that the proviso of this section means that no test used for hiring or promotion is valid if it "operates to exclude Negroes [and] cannot be shown to be related to job performance." 401 U.S. at 431, 91 S.Ct. at 853. Reversing the Court of Appeals for the Fourth Circuit, the Court decided that a test which excludes proportionately more blacks than whites from employment or advancement may be prohibited under the Act despite a lack of any discriminatory intent on the part of those developing and using the tests and in spite of professional origins of the test. Whereas in Griggs the company made no effort to prove that its tests were related to job performance, the appellee here introduced a mass of statistical data (the Hite Study) by which it sought to prove "a demonstrable relationship between test scores and job performance." (emphasis added) On this appeal, we must resolve the question left unanswered by Griggs: what comprises an adequate demonstration that a company's testing program satisfies the proviso of § 2000e-2(h), as interpreted by Griggs?

Though employers need not give preference to victims of discrimination over other job applicants, practices "fair in form, but discriminatory in operation" are proscribed. 401 U.S. at 431, 91 S.Ct. at 853. When a series of tests operates to exclude more blacks than whites from employment, the burden is upon the employer to prove the business necessity of the tests. If ". . . the jobs in question formerly had been filled only by white employees as part of

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a longstanding practice of giving preference to whites . . ." and the test operates ". . . to disqualify Negroes at a substantially higher rate than white applicants," 401 U.S. at 426, 91 S.Ct. at 851, then the company's proof must make manifest a relationship between the test and the job for which its passage is prerequisite.

2. Test Evaluation

a. General Background. At Georgia Power, tests were first used as a device for screening job applicants on August 19, 1963, less than one month after the discontinuation of formal job segregation. The tests were initiated without any prior study of their ability to predict likelihood of successful job performance, and the first formal attempt to validate them came shortly after the Attorney General's filing of this suit. 4

Georgia Power acknowledged its Griggs burden to validate the tests it had used with such racially discriminatory results 5 and attempted to carry that burden with expert opinion evidence. This took the form of a post-testing study made by Dr. Loren Hite which concluded that, after each of the tests had been properly weighted for the jobs involved, the resulting scores bore a positive relationship to job performance ratings by supervisors. The major issue in this appeal is whether this proof met the standard articulated in Griggs.

At the outset of our decisional analysis we would note that testing is a relative concept. For Title VII purposes, a test is not valid or invalid per se, but must be evaluated in the setting in which it is used. As the Griggs Court said, "any tests used must measure the person for the job and not the person in the abstract." 401 U.S. at 436, 91 S.Ct. at 856. A test or other selection device may be shown to be "job-related" under Griggs only if the employer can demonstrate or manifest that the test reliably predicts which applicants possess the reasonably necessary job skills and traits.

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