523 F.2d 1290 (8th Cir. 1975), 74-1849, Green v. Missouri Pacific R. Co.

Docket Nº:74-1849.
Citation:523 F.2d 1290
Party Name:33 A.L.R.Fed. 248, Buck GREEN et al., Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellee.
Case Date:July 23, 1975
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1290

523 F.2d 1290 (8th Cir. 1975)

33 A.L.R.Fed. 248,

Buck GREEN et al., Plaintiff-Appellant,

v.

MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellee.

No. 74-1849.

United States Court of Appeals, Eighth Circuit

July 23, 1975

Submitted April 17, 1975.

As Amended on Denial of Rehearing En Banc Sept. 15, 1975.

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[Copyrighted Material Omitted]

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Francis H. Kennedy, St. Louis, Mo., Walter W. Heiser, Legal Aid Society of the City and County of St. Louis, St. Louis, Mo., was co-counsel for appellant.

Equal Employment Opportunity Commission, Susan J. Johnson, Washington, D. C., for amicus curiae.

R. W. Yost, St. Louis, Mo., for appellee.

Before JONES, [*] Senior Circuit Judge; and HEANEY and BRIGHT, Circuit Judges.

BRIGHT, Circuit Judge.

The Missouri Pacific Railroad Company (MoPac) follows an absolute policy of refusing consideration for employment to any person convicted of a crime other than a minor traffic offense. Appellant-Buck Green, who is black, raises the principal question of whether this policy violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Supp. II, 1972) and 42 U.S.C. § 1981 (1970), because this practice allegedly operates to disqualify blacks for employment at a substantially higher rate than whites and is not job related. 1

Green on his own behalf and as a class action filed this suit November 7, 1972, seeking declaratory and injunctive relief as well as back pay. 2 The district court denied Green relief on his individual claim and that of the class. 3 Green brings this timely appeal. We outline the undisputed facts.

On September 29, 1970, Green, then 29 years of age, applied for employment as a clerk at MoPac's personnel office in the corporate headquarters in St. Louis, Missouri. 4 In response to a question on an application form, Green disclosed that he had been convicted in December 1967 for refusing military induction. He stated

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that he had served 21 months in prison until paroled on July 24, 1970. 5 After reviewing the application form, MoPac's personnel officer informed Green that he was not qualified for employment at MoPac because of his conviction and prison record. Green, thereafter, sought relief under Title VII, and, when administrative conciliation failed, he brought this action.

Since 1948, MoPac has followed the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense. 6 Prior to 1972, MoPac also investigated an applicant's arrest record, but after the decision in Gregory v. Litton Systems, Inc., 472 F.2d 631 (9th Cir. 1972), MoPac eliminated any arrest inquiry from its application form and ceased using arrest records as an employment criterion.

Green makes the following contentions on this appeal: (1) MoPac's policy of not hiring any person convicted of a criminal offense has a racially discriminatory effect and violates Title VII; (2) this policy is not justified by any business necessity; and (3) the district court erred in restricting the class only to black persons denied employment consideration because of a conviction record.

I. Whether Green proved a prima facie case of discrimination.

Although the employment practice in question is facially neutral, an employment test or practice which operates to exclude a disproportionate percentage of blacks violates Title VII unless the employer can establish that the practice is justified as a business necessity. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); see Boston Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1019 (1st Cir. 1974); Wallace v. Debron Corp., 494 F.2d 674, 675 (8th Cir. 1974); United States v. Georgia Power Co., 474 F.2d 906, 911 (5th Cir. 1973); Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D.Cal.1970), aff'd, 472 F.2d 631 (9th Cir. 1972). Once a prima facie case of substantially disparate impact is made the burden shifts to the employer to justify the employment practice or test as a business necessity. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Rogers v. International Paper Co., 510 F.2d 1340, 1348-49 (8th Cir. 1975); Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 54 (5th Cir. 1974); Hester v. Southern Ry. Co., 497 F.2d 1374, 1381 (5th Cir. 1974).

Thus, we examine the threshold question of whether Green has presented a prima facie case. A disproportionate racial impact may be established statistically in any of three ways. The first procedure considers whether blacks as a class (or at least blacks in a specified geographical area) are excluded by the employment practice in question at a substantially higher rate than whites. See Griggs v. Duke Power Co., supra, 401 U.S. at 430 n. 6, 91 S.Ct. 849, 28 L.Ed.2d 158 (on the requirement of a high school diploma, the Court cited statistics from the U. S. Census Bureau that in North Carolina only 12 percent of black males had completed high school while 34 percent of white males had done so); United States v. Georgia Power Co., 474 F.2d 906, 918 (5th Cir. 1973) (the court cited statistics from the South

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and from the Atlanta area showing that a substantially higher percentage of whites had completed high school than blacks); Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D.Cal.1970), aff'd, 472 F.2d 631 (9th Cir. 1972) (the court cited national arrest statistics showing that blacks suffered a disproportionately high percentage of arrests); Johnson v. Pike Corp., 332 F.Supp. 490, 494 (C.D.Cal.1971) (the court cited general studies indicating that blacks' wages were garnished at a disproportionately high rate).

The second procedure focuses on a comparison of the percentage of black and white job applicants actually excluded by the employment practice or test of the particular company or governmental agency in question. See Griggs v. Duke Power Co., supra, 401 U.S. at 430 n. 6, 91 S.Ct. 849, 28 L.Ed.2d 158; Vulcan Society of the New York City Fire Dept. v. Civil Service Comm. of the City of New York, 490 F.2d 387, 392 (2d Cir. 1973); Bridgeport Guard, Inc. v. Members of the Bridgeport Civil Service Comm., 482 F.2d 1333, 1335 (2d Cir. 1973); cf. Rogers v. International Paper Co., supra, 510 F.2d at 1348-49.

Finally, a third procedure examines the level of employment of blacks by the company or governmental agency in comparison to the percentage of blacks in the relevant geographical area. See Bridgeport Guard, Inc. v. Members of the Bridgeport Civil Service Comm., supra, 482 F.2d at 1335-36; United States v. Georgia Power Co., supra, 474 F.2d at 910; Butts v. Nichols, 381 F.Supp. 573, 579 (S.D.Ia.1974) (three-judge court); Cf. Rodriguez v. East Texas Motor Freight, supra, 505 F.2d at 54-55.

Although Green alleged that MoPac discriminates against blacks generally in its employment practices, the district court focused only on whether a disparate impact could be statistically demonstrated by MoPac's policy of automatically rejecting all applicants with a conviction for an offense other than minor traffic infractions. Here, we consider a sweeping disqualification of all persons with a past record of some unlawful behavior, See McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 806, 93 S.Ct. 1817, 36 L.Ed.2d 668, rather than a test directed at a precise measurement of intelligence or skills. The disparity of impact, if any, will be disclosed by an examination of how that policy affects applicants and potential applicants. We agree with the approach taken by the district court and primarily limit our statistical analysis to the effect of MoPac's policies against both blacks and whites in the general population in the area from which employees are drawn (metropolitan St. Louis), and the effect of this policy upon black and white applicants for employment with MoPac.

Initially, we note that the district court recognized statistical data and treatises offered into evidence by the plaintiff which indicate that blacks are convicted of crimes at a rate at least two to three times greater than the percentage of blacks in the populations of certain geographical areas. Dr. Ronald Christensen, a qualified expert witness for the plaintiff, concluded that it is between 2.2 and 6.7 times as likely that a black person will have a criminal conviction record during his lifetime than that a white person will have such a record. He further concluded that in urban areas from 36.9 percent to 78.1 percent of all black persons would incur a conviction during their lifetimes, but that from only 11.6 percent to 16.8 percent of all white persons would acquire a conviction.

MoPac's records of employment applications at its corporate headquarters during the period from September 1, 1971, through November 7, 1973, 7 disclose that 3,282 blacks and 5,206 whites applied for employment. Of these individuals, 174 blacks (5.3 percent of the black applicants) and 118 whites (2.23 percent of the white applicants) were rejected because of their conviction records. Thus, statistically, the policy operated automatically to exclude from

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employment 53 of every 1,000 black applicants but only 22 of every...

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