Rowe v. General Motors Corporation

• Decision Date: 02 March 1972
• Docket Number: No. 28959.,28959.
• Citation: 457 F.2d 348
• Parties: Jake ROWE et al., Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

457 F.2d 348 (1972)

Jake ROWE et al., Plaintiffs-Appellants, v.GENERAL MOTORS CORPORATION, Defendant-Appellee.

No. 28959.

United States Court of Appeals, Fifth Circuit.

March 2, 1972.

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Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., for plaintiffs-appellants.

Charles Kirbo, R. William Ide, III, King & Spalding, Atlanta, Ga., Ross L. Malone, Gen. Counsel, General Motors Corp., Edmond J. Dilworth, Detroit, Mich., for defendant-appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This appeal is taken from a judgment rendered for the defendant, General Motors Corporation, in a suit alleging racial discrimination in employment practices in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C.A. § 2000e-2.¹

Employees Jake Rowe, Willie Williams and Clarence Williams, Negroes, brought their charge of racial discrimination against GM's Atlanta plant (GMAD Lakewood plant), because of the system of transfer and promotion utilized by GM to determine which employees are suitable for transfer from hourly jobs to salaried jobs.²GM contends that the system by which men are promoted at the Atlanta plant is nondiscriminatory and also that it has an affirmative policy and practice of nondiscrimination which has been utilized to increase the opportunities for Blacks at the plant.

The Trial Court, sitting without a jury, determined that Employees individually, and the class represented in this suit had not in fact been the victims of racial discrimination.³We reverse the Trial Court's decision.

Facts

At the outset it is appropriate to point out that until 1962 GMAD was wholly segregated with Blacks being limited to the few custodial jobs.In 1962 GM opened up all jobs to Blacks.

There are three distinct production activities at GMAD;⁴ the Chevrolet passenger assembly line, the Chevrolet truck assembly line and the Fisher Body assembly line.⁵There are two main lines of employment.The hourly line covers certain jobs in the plant in which the workers are paid on an hourly basis.The salaried line covers other specified jobs in which workers are paid on a salaried basis.Most of the jobs in the hourly division entail work on the production lines while designated salaried positions⁶ include foreman (supervisor), clerk, accountant and security guard.⁷Some of the "clerk positions require typing skill while others do not.

There are two methods by which an hourly employee can secure transfer/promotion from his hourly job to a salaried job.The first requires no action on his part while the second can be called "employee initiated".⁸The employer initiated method, as the name implies, is one in which the whole opportunity depends on unilateral action of the employer.It starts by the immediate foreman recommending an hourly employee to the general foreman or to the salaried personnel administrator.This recommendation in turn is submitted to the Management Development Committee made up of ten persons.A majority vote of the committee is required to approve the employee's promotion.⁹The second method of securing promotion, the "employee initiated" method, puts the initiative wholly on the employee.Under it the employee makes application directly to the salaried personnel administrator.The administrator then directs the employee to obtain his immediate foreman's recommendation.When and as—but not until—the foreman's recommendation is furnished, the employee's name is submitted to the Management Development Committee.Again, a majority vote of the committee is required to approve the employee's promotion.

By whomsoever initiated the foreman is the key.In one the process never gets started, in the other it stops in its tracks unless the foreman puts his blessings on the prospect.This recommendation is based in part on the foreman's subjective evaluation of the hourly employee's "ability, merit and capacity."¹⁰Seniority is not a factor in determining who is qualified for promotion although "experience" is said to be an indirect consideration.¹¹

Shortly before the trial of this case GMAD began notifying hourly workers of vacancies in the salaried division by posting notices of such vacancies in conspicuous places in the plant.Before this procedure was adopted, however, hourly employees were unaware of possible salaried job openings and were equally unaware of the qualifications necessary to obtain such jobs.

Each of the three plaintiff employees sought promotion/transfer from their hourly jobs on the production lines to salaried jobs by utilizing the "employee initiated" method.Among other things they base their charge of racial discrimination on the foreman referral system and claim that because they are Blacks, they have been hindered in obtaining the required recommendation of their immediate foremen and have therefore been unable to secure promotion.¹²

Discriminatory Employment Practices

Title VII of the Civil Rights Act prohibits all forms of racial discrimination in all aspects of employment.Local 189, United Papermakers and Paperworkers, A.F.L.-C.I.O., C.L.C. v. United States, 5 Cir., 1969, 416 F.2d 980, 982, cert. denied, 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100.The degree of discrimination practiced by an employer is unimportant under Title VII.Discriminations come in all sizes and all such discriminations are prohibited by the Act.Hodgson v. American Bank of Commerce, 5 Cir., 1971, 447 F.2d 416, 420.

This Court has continuously given a wide scope to the act in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities.¹³We have described this as "one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the `outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies or chooses."Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 891.

It is now well settled that any form of discrimination in employment opportunities based upon race, color, religion, sex or national origin can no longer be tolerated.It is equally clear that any employment practices which operate to prejudice minority employees must be eliminated and their consequences eradicated by appropriate adjustments.The only justification for standards and procedures which may, even inadvertently, eliminate or prejudice minority group employees is that such standards or procedures arise from a non-discriminatory legitimate business necessity.Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158;Local 189, United Papermakers and Paperworkers, A.F.L.-C.I.O., C.L.C. v. United States, supra.

Since this "legitimate business necessity" is the one and only justification for standards or procedures which operate to deny Blacks promotional opportunities, it is important to consider factors which have been deemed essential for a determination that a certain standard or procedure did not arise from a legitimate business necessity.The Supreme Court in Griggs v. Duke Power Co., supra, looked to three factors in determining that the promotional standards and procedures (industrial tests— high school diploma) complained of in that case did not arise from legitimate business necessity and therefore did violate Title VII.(i) The standards and procedures were not shown to be significantly related to successful job performance.(ii)The procedures operated to disqualify a substantially higher rate of Blacks than Whites.(iii)The jobs in question had formerly been filled by Whites as part of a longstanding practice of discrimination.Griggs v. Duke Power Co., supra,401 U.S. at 426, 91 S.Ct. at 851, 28 L.Ed.2d at 161.

It is clearly not enough under Title VII that the procedures utilized by employers are fair in form.These procedures must in fact be fair in operation.Likewise, the intent of employers who utilize such discriminatory procedures is not controlling since "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation."Griggs v. Duke Power Co., supra,401 U.S. at 432, 91 S. Ct. at 854, 28 L.Ed.2d at 165.

It is therefore clear that employment practices which operate to discriminate against people because of their race, color, religion, sex or national origin, violate Title VII, even though the practices are fair on their face and even though the employer had no subjective intention to discriminate.¹⁴

GM's Affirmative Policies of Nondiscrimination

Although we hold that GM has discriminated, we wish to make clear that this is not the case, typical of so many, in which an employer has had a deliberate purpose to maintain or continue practices which discriminate in fact under a facade of apparent neutrality and employment goodwill.Quite the opposite.But we think that it was the benign approach of GM which may unwittingly have led the Judge to his conclusions.As pointed out above, (see note 14, supra), as did the District Court in Griggs, he approached the case primarily in terms of purpose and motive, not in terms of consequence.But the problem is not whether the employer has willingly—yea, even enthusiastically—taken steps to eliminate what it recognizes to be traces or consequences of its prior pre-Act segregation practices.Rather, the question is whether on this record—and despite the efforts toward conscientious fulfillment—the employer still has practices which violate the Act.In this sense, the question is whether the employer has done enough.Of course, under an Act which is essentially enforced through private parties shouldering the burdens of private attorneys general, Jenkins v. United Gas Corp., supra;Miller v. Amusement Enterprises, Inc., 5 Cir., 1970, 426 F.2d 534, this court has the duty of directing...