Washington v. Electrical Joint Apprenticeship and Training Committee of Northern Indiana, 87-1833

• Decision Date: 28 April 1988
• Docket Number: No. 87-1833,87-1833
• Parties: 46 Fair Empl.Prac.Cas. 1215, 47 Empl. Prac. Dec. P 38,195, 56 USLW 2662 Marvin WASHINGTON, Plaintiff-Appellant, v. ELECTRICAL JOINT APPRENTICESHIP AND TRAINING COMMITTEE OF NORTHERN INDIANA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 710

845 F.2d 710

46 Fair Empl.Prac.Cas. 1215,

47 Empl. Prac. Dec. P 38,195, 56 USLW 2662

Marvin WASHINGTON, Plaintiff-Appellant, v. ELECTRICAL JOINT APPRENTICESHIP AND TRAINING COMMITTEE OF

NORTHERN INDIANA, Defendant-Appellee.

No. 87-1833.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1988.

Decided April 28, 1988.

Frank E. Booker, Notre Dame, Ind., for plaintiff-appellant.

William R. Groth, Fillenwarth, Dennerline, Groth & Baird, Indianapolis, Ind., for defendant-appellee.

Before WOOD, Jr., POSNER and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Marvin Washington brought suit against the Electrical Joint Apprenticeship and Training Committee of Northern Indiana, charging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court entered judgment for the Committee after a bench trial.

The Committee is a joint labor-management committee, see 42 U.S.C. Sec. 2000e-2(d), set up by electrical contractors and members of the electricians' union in northern Indiana to train apprentice electricians. Washington applied to the apprenticeship program and was turned down in 1982, having been ranked last among the 72 applicants for 20 openings. The ranking is determined by the applicant's score on a written test, performance in an oral interview and academic record; there is no fixed weighting of the three components. The written test has been approved by the Department of Labor as job-related and nondiscriminatory. Washington scored "low" on the test; this is the lowest of three possible scores (the others are "medium" and "high"). Most but not all of the 20 applicants who were selected had higher scores.

Washington does not complain about the written test or his score on it, but he argues that the oral interview, and the weight given academic performance in high school and college, systematically and unjustifiably exclude blacks. The only evidence on which he relied in the district court was that none of the 20 applicants selected in 1982, when Washington was turned down, belonged to minority groups, even though more than 5 percent of the population of northern Indiana belongs to such groups. This evidence is enough, he argues, to show that the Committee's selection system has a racially disparate impact and is therefore lawful only if it is shown to be necessary to the Committee's effective operation. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). The district court, impressed by evidence presented by the Committee showing that between 1972 and 1982 (inclusive) 6.5 percent of the applicants selected for the apprenticeship program were members of minority groups although only 5.3 percent of the population of northern Indiana belongs to such groups, held that Washington had failed to demonstrate a disparate impact, and entered judgment for the Committee.

Washington's low score on a written test whose lawfulness he does not question, and his overall ranking at the very bottom of the applicants for a limited number of positions, make it unlikely that he would benefit from a revamped system of selection. As in any tort case, statutory or otherwise, a plaintiff cannot win a discrimination case if the harm to him would have been the same whether or not the defendant had discriminated. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977); Button v. Harden, 814 F.2d 382, 383 (7th Cir.1987). But we cannot be sure that Washington was not harmed by the method of selection; some other applicants who scored "low" on the written test were selected. So we must press on.

It might seem that a disparate-impact plaintiff should always be required to use statistics of applicants rather than of population. The idea behind the disparate-impact theory of a Title VII violation is that selection methods not intended to bear heavily on blacks (or other groups favored by the statute) may nevertheless have that effect, maybe by emphasizing academic qualifications that blacks disproportionately fail to meet. If there are no black applicants, or if as high a fraction of black applicants as of white applicants are hired, it might seem that the method of selection could not have a discriminatory effect, and therefore that the relevant statistics are those of the applicants rather than of the pool from which the applicants are drawn. But this analysis is superficial. See Mister v. Illinois Central Gulf R.R., 832 F.2d 1427, 1435-37 (7th Cir.1987). If the nature of the selection method is known, persons unlikely to pass through the filter that the method creates may decide not to waste their time applying.

So it was fine in principle for Washington to base his case on population statistics rather than applicant statistics. The weakness of his case lies elsewhere--in his failure to show that the Committee's methods of selection actually had a racial impact. The Committee's multi-year statistics on racial impact, which undermined Washington's single-year statistics, had been gathered pursuant to an affirmative action plan that the Committee had adopted in 1972 under prodding by the Department of Labor. The plan had set a target of 6 percent for minority selections. Washington argues that this meant 6 percent each year, not 6 percent averaged over 11 years. This is hardly a plausible interpretation, given the small number of openings each year. If, as in 1982, only 20 selections were made, a 6 percent minimum would become 10 percent, simply because the selection of one member from a minority group would fall short of 6 percent (one is only 5 percent of 20); there would have to be a minimum of two, which would be 10 percent. Washington's interpretation, which thus would have the effect, in some years anyway, of raising the minimum above 10 percent, cannot be correct--and in any event noncompliance with an affirmative action plan is not racial discrimination. Yatvin v. Madison Metropolitan School District, 840 F.2d 412, 415 (7th Cir.1988), and cases cited there.

Putting the affirmative action plan to one side, therefore, the district court could hardly be faulted for refusing to infer discrimination from the experience of a single year, involving so tiny a sample that the nonappearance of a black in it could easily be a product of chance. See, e.g., Soria v. Ozinga Bros., Inc., 704 F.2d 990, 995 (7th Cir.1983); Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1076 (9th Cir.1986); Connolly & Peterson, Use of Statistics in Equal Employment Opportunity Litigation Sec. 2.01 (1985). It is an unacceptable statistical procedure to turn a large sample into a small one by arbitrarily excluding observations. Suppose that, wanting to estimate the proportions of white and black marbles in a large urn without having to count all the marbles, you pick out 30 at random--and then, without looking at any of them, discard 28, thereby reducing your sample to 2. That would be a senseless way to proceed. Other things being equal, large samples are more reliable than small ones. The picture conveyed by eleven years of experience with the electricians' affirmative action program is apt to be more reliable than the experience of one year, which may well have been a fluke. And apparently the percentage of blacks selected since 1982 has been even higher than in the eleven years covered by the Committee's statistics. Perhaps years near 1982 should be weighted more heavily than much earlier (or later) years, but Washington did not suggest that the district court do this. He rested entirely on the 1982 figures. It is nowhere written that every year at least one minority applicant for training as an electrician's apprentice in northern Indiana shall be among the 20 or so most qualified applicants. Otherwise we might be treated to the spectacle of white applicants' bringing suits for...