Marvin W. BROWN, Appellant, v. GASTON COUNTY DYEING MACHINE COMPANY, Appellee.
No. 71-1268.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 6, 1971.
Decided March 28, 1972.
Rehearing En Banc Denied May 22, 1972.
Robert Belton, Charlotte, N. C., (J. LeVonne Chambers, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Jack Greenberg, William L. Robinson, New York City, and Chambers, Stein, Ferguson, & Lanning, Charlotte N. C., on brief), for appellant.
Brown Hill Boswell, Charlotte, N. C. (J. W. Alexander, Jr., Blakeney, Alexander, & Machen, Charlottte, N. C., on brief), for appellee.
Before CRAVEN and BUTZNER, Circuit Judges, and DUPREE, District Judge.
BUTZNER, Circuit Judge:
This is an appeal from the district court’s dismissal of an individual claim and class action alleging racial discrimination in hiring, promotion, pay, and other terms and conditions of employment. The suit is founded on Title VII, § 703(a) of the Civil Rights Act of 1964, and 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866. We modify the judgment concerning the individual claim, vacate the judgment dismissing the action brought on behalf of the class, and remand the case for further proceedings.
I
The defendant, Gaston County Dyeing Machine Co., manufactures and installs custom-made machines for dyeing textile yarns or threads under high pressure. The machines, essentially large vessels weighing several tons with numerous fittings and connections, are assembled by welder-fabricators who must be able to read blueprints and weld to exacting tolerances. Welder-fabricators are among the company’s best paid employees.
Marvin Brown, the individual plaintiff, claims that he was denied promotion to higher paying welder-fabricator classifications because he is black. The company counters that Brown was offered unfettered opportunity to advance, but that he lacked the ability and temperament to do the work required of him. Resolution of these conflicting claims depended largely upon the credibility of witnesses, and since the district judge’s findings are supported by the evidence, they are binding upon us. Fed.R.Civ.P. 52(a).
In 1960, Brown, who had finished a welding course at North Carolina Agricultural and Technical College, was hired by the company for one of its lower paying jobs. The district judge found that
“Brown asked for employment as a welder and was given to understand by supervisory people that it was premature to try to place a Negro in a job as welder with the defendant.
“However, in 1961, [the company’s president] instructed his plant managers to give Brown a job as a welder and try to help him make progress in that work. . . .” 325 F.Supp. at 542.
The president’s directions were followed and Brown was promoted to welder-trainee. He then progressed through various steps to welder-fabricator, class B.
The district judge’s findings establish that the company violated 42 U.S.C. § 1981 by denying Brown a welding job because of his race from the time he applied in 1960 until he was employed as a welder-trainee in 1961. Brown, therefore, is entitled to back pay measured by the difference between the wages he would have earned had he been initially employed as a welder-trainee and his actual wages. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir.), cert. denied, United Order of Am. Bricklayers and Stone Masons, Local 21 v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).
The district judge, for reasons fully stated in his opinion, found that Brown was not a victim of racial discrimination after he was employed as a welder-trainee. This finding also depended largely upon the credibility of witnesses. It, too, is supported by the record and is binding upon us. Since this finding covers the period Brown worked for the company after the effective date of the Civil Rights Act of 1964, he is not entitled individually to the relief he seeks under Title VII of the Act, and his remedy is limited to § 1981 for the earlier period.
II
While Brown has not proved his own Title VII claim, the class of employees he represents is not for this reason deprived of a remedy. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970); cf. Jenkins v. United Gas Corp., 400 F.2d 28, 31 (5th Cir. 1968). The district court, cognizant of this rule, considered the class action on'its merits. Rejecting the company’s claim -that the evidence demonstrates no discrimination against minorities, the district court said, “[A]t least in prior years, welding and high pay in the defendant’s shop were not for black men.” 325 F.Supp. at 543. However, it found that the company, possibly spurred by this suit, had recently undertaken a number of measures to eliminate the racial discrimination it practiced in the past. Consequently, the court dismissed the action for lack of evidence to support relief for the class.
Although the company has employed black workers for many years in low paying jobs, it was not until 1961, when Brown was promoted to welder-trainee, that any had been assigned to welding. From 1958 to 1968, the company offered an after-hours training program for welding, blueprint reading, and shop math. Only one black employee was admitted to the program in that decade. For at least six years, it has employed three black leadmen, but these three are paid less than other leadmen who are white. The company advertises that it is an “equal opportunity employer,” but it has no objective, formal guidelines for hiring, promotion, and transfer, or for giving notice of vacancies within the plant except by word of mouth.
Starting in the late 1950’s, the company integrated its facilities, sports, and social functions. Since 1965 it has made affirmative efforts to recruit black workers as a part of its routine employment procedure, and it has provided opportunities for black employees to transfer into welder-fabricator or machine shop classifications. Some have accepted the transfers; others, after initially accepting, returned at their own request to lower paying jobs.
The district court found that Gaston County where the defendant’s plant is located, has a black population of approximately 13 percent. In September 1969, black employees constituted less than ten percent of the defendant’s total work force. As of the same date they comprised approximately 13 percent of the hourly rate production employees, but this percentage had slipped to less than 11 percent by the time of the trial in October 1970. The following table shows employment by race in each of the company’s job classifications of hourly rate production employees as of September 1969:
Analysis of these statistics shows that of the 45 job classifications, black workers are employed in only 11. Slightly less than half of these employees are relegated to two positions, grinding and pickling, and industrial ■maintenance (janitors). Both of these jobs are rated ''near the bottom of the company’s pay scale, and neither affords employees much opportunity for advancement to higher paid positions. Significantly, both of these classifications are almost completely segregated. Each has six black employees and only one white employee. Sandblaster is the classification of another comparatively low paying job, and it, too,' is filled by black employees. In contrast, although 55 persons are employed in welding jobs, only one is black. And in the top 18 classifications having a pay range exceeding $3.00 an hour, there are 102 white and three black employees. But even these three, who are classified as leadmen, receive less than $3.00 an hour while their white counterparts are paid at a rate in excess of $3.00.
Courts have often observed that proof of overt racial discrimination in employment is seldom direct. E. g., United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157, 1162 (8th Cir. 1971); Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584 (1954). Recognizing this, we have found “error in limiting Title VII to present specific acts of racial discrimination,” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970), and it is now well established that courts must also examine statistics, patterns, practices and general policies to ascertain whether racial discrimination exists. United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Graniteville Co. v. EEOC, 438 F.2d 32, 41 (4th Cir. 1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970); United States v. Hayes International Corp., 415 F.2d 1038, 1044 (5th Cir. 1969). We need not decide whether the 1969 statistics, revealing as they are, should be regarded as conclusively showing violation of Title VII or whether they establish a prima facie case. It is sufficient to hold that they have not been rebutted by the company’s efforts since 1965 to hire and promote black employees.
In United States v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 1971), the court identified the lack of “fixed or reasonably objective standards and procedures for hiring” as a discriminatory practice. Gaston’s employment policies suffer the same deficiency. The company lacks objective guidelines for hiring, for pay increases within job classifications, and for promotion or transfer from one job to another. Employment and promotion policies that operate without objective standards for the direction of supervisory personnel may appear impartial, but recently we cautioned: “Practices, policies or patterns, even though neutral on their face, may operate to segregate and classify on the basis of race at least as effectively as overt racial discrimination. Particularly is this so if a history of past discrimination is developed.” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970). Elusive, purely subjective standards must give way to objectivity if statistical indicia of discrimination are to be refuted. “Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.” Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971).
Here, in the absence of objective criteria applied to all workers alike, the statistics indicate that race is the only identifiable factor explaining the disparity between the jobs held by white employees and those held by black employees. The proof discloses no objective standards based on education, experience, ability, length of service, reliability, or aptitude to account for the preferential employment of white workers. Cf. United States v. Jacksonville Terminal Co., 451 F.2d 418, 449 (5th Cir. 1971).
Moreover, the record discloses that notices of vacancies are not posted, and news of them is passed along by word of mouth. When job classifications are as segregated as they are in this company, delay in learning about a vacancy in an all white category may in itself discriminate against a black employee who hears of it only after it has been filled. This practice resembles the lack of a formal transfer system which we criticized in Dillon. 429 F.2d at 802, 804. It differs little from a hiring policy of referral by employees that has been condemned because it favors the family and friends of white employees over black job seekers who have no way of knowing about an opening. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); United States v. Sheet Metal Workers, Local 36, 416 F.2d 123, 137 (8th Cir. 1969); see Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L. Rev. 1109, 1152 (1971).
In sum, the lack of objective guidelines for hiring and promotion and the failure to post notices of job vacancies are badges of discrimination that serve to corroborate, not to rebut, the racial bias pictured by the statistical pattern of the company’s work force.
III
The district court was impressed with' the efforts of the company to remedy the discrimination of prior years. Counsel for the plaintiff, though pressing for full injunctive relief, candidly acknowledges that the company has recently improved many of its practices. But the transition to a shop free from discrimination is as yet incomplete. Progress already made has chiefly occurred since the institution of this suit. If this litigation is prematurely terminated, members of the class run the risk that this progress will abruptly end. Therefore, we will adopt the remedy fashioned in Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970), which the plaintiff somewhat reluctantly proposes as an alternative measure. There the court of appeals directed the district judge to retain the case on his docket a reasonable time to insure continuance of the company’s policy of equal employment opportunities.
Accordingly, the case is remanded to the district court for retention on its docket for a reasonable time. If, at the end of this period, the court finds that the company’s employment policies have completely eliminated the unlawful practices prohibited by § 703(a), it may dismiss this action. However, if any unlawful employment practices remain, the court must order appropriate injunc-tive relief. In either event, the plaintiff is entitled to recover his costs and reasonable counsel fees. Robinson v. Lorillard Corp., 444 F.2d 794 (4th Cir. 1971); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Parham, supra, 433 F.2d at 429.
The judgment is affirmed in part, vacated in part, and the case is remanded for further proceedings consistent with this opinion.
. Brown v. Gaston County Dyeing Machine Co., 325 F.Supp. 541 (W.D.N.C.1970). This case was previously here on appeal of the issue of exhaustion of remedies. Brown v. Gaston County Dyeing Machine Co., 405 F.2d 887 (4th Cir. 1968), cert. denied, Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969).
. Section 703(a) of the Act, 42 U.S.C. § 2000e-2(a) (1970), provides:
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) fo limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
. 42 U.S.C. § 1981 provides:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
. Compare Parham v. Southwestern Bell Telephone Company, 433 F.2d 421, 426 (8th Cir. 1970) (statistics as a matter of law establish a violation of Title VII), with Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971) (statistics create a prima facie case of discrimination). See Developments in the Law — Employment Discrimination and Title VII of the Civil Bights Act of 1964, 84 Harv.L.Rev. 1109, 1154 (1971).