Full opinion text
ORDER ALLOWING INTERIM ATTORNEYS’ FEES McMILLAN, District Judge. Plaintiffs have requested an interim award of counsel fees. Plaintiffs have prevailed in the litigation. They have established a right to back pay covering periods of several years on the part of several named plaintiffs, and they have established rights to back pay on the part of others in a rather large class of women employed in management by Southern Bell Telephone and Telegraph Company in North Carolina. More importantly, they have established the right of women to equal treatment and equal promotion to and within the management class of the defendant employer, and have thereby obtained prospective relief and a substantial change in practice (as opposed to the declared policy) of this very large employer. Plaintiffs as prevailing parties are entitled to an award covering their reasonable counsel fees and their costs and expenses to date. Van Hoomissen v. Xerox, 503 F.2d 1131 (9th Cir. 1974); Patterson v. American Tobacco Co., et al., 9 EPD H 10,-039 (E.D.Va.1974). The purpose of counsel fees is “to make sure that Title VII works.” Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 n. 3 (5th Cir. 1970). In arriving at this fee the court has considered the factors discussed and considered in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) and in Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D. 483 (W.D.N.C.1975). Those factors include the following: 1. The Results Obtained. — Plaintiffs have prevailed on all major points. This suit may result in compensation for many of defendant’s employees who would not otherwise have been compensated for defendant’s sex discrimination against them, and will result in injunctive relief beyond that already effected by the consent decrees. 2. The Difficulty and Novelty of the Case. — This has been a very large case and obviously a difficult one to manage and comprehend. Discovery was extensive. The defendant served many documents on the plaintiffs at late dates. The court initially excluded most of these documents from evidence on the ground of their tardy service. As the trial wore on and all involved began to get deadeningly familiar with the evidence, plaintiffs were able to review these documents and withdrew their tardiness objections. In view of the hospitalization of one of plaintiffs’ three attorneys after the first week of trial and the necessity for remaining counsel to learn her parts of the ease, together with the added burden of digesting extensive written testimony produced by defendant during the last two days of the trial (at the court’s request), plaintiffs’ attorneys can legitimately claim to have surmounted great difficulties in keeping afloat and finally getting the record closed. They came to court with their case beautifully organized and presented it with a minimum of wasted motion. The direct examination of all their witnesses, including the expert statistician, took only about two days. They explored very few peripheral matters. They appeared to have intelligently divided among themselves the various subject matters of the case, with no more .than two attorneys assigned to any particular subject matter. The consent decree issues appear novel to the court. There appears to be no helpful precedent for or against the consent decree arguments asserted by the defendant. Plaintiffs’ counsel appeared to have understood the use of computers well enough to cross-examine defendant’s expert intelligently. 3. Fees Paid to Opposing Counsel. — Defendant’s outside counsel in this case accrued $304,992.25 in fees (billed and un-billed) and $68,893.88 in expenses (including 1977 computer time) through September 27, 1977. They report 4,877.85 hours of work by attorneys, 321.7 hours worked by summer law clerks, and 899.7 hours worked by paralegals. Neither salaries, time worked, nor expenses of defendant’s house counsel Sgrosso and Simon are included in these figures. At various times eleven defense attorneys have overtly participated in this case (Ashe, Stacey, Boisseau, Shields, Aid-rich, Sgrosso, Simon, Allred, Hanna, Dear-born and Hodges). This massive defense effort reflects an extended war of attrition. The volumes of depositions and paper and statistics are tremendous. To a considerable degree, plaintiffs had to fight fire with fire, and to perform tasks substantially similar to those performed by the defendant in developing facts and in preparing for depositions and trial. Although no single factor usually controls an award of attorney fees, the fees and expenses of defense attorneys are a significant factor in deciding whether the hours worked by plaintiffs’ attorneys were reasonable and necessary. 4. Time and Labor Involved. — The plaintiffs’ attorneys have filed affidavits indicating that they have expended about 2,500 hours of attorneys’ time on this case through September 27, 1977. The defendant contends that plaintiffs’ records are erroneous and incomplete and do not support the hours claimed in the affidavits. In part, defendant is correct; plaintiffs’ counsel do appear to have made errors in computing time, as shown by the following table: THE COURT’S CALCULATIONS, FROM TIME RECORDS AFFIDAVITS BY PLAINTIFFS’ ATTORNEYS WOOD AFFIDAVIT AND THE DEFENDANT’S BRIEF Casey 7.2 13.3 0 Daly 873.2 966.9 831.7 Judge Bennett 1,146.65 1,140.0 1,103.6 Escott 400.1 393.1 General Objections Martin ) 521.8 514.3 General Objections ) Law Byrd ) Clerks 20.0 20.0 General Objections Paul Escott ) Lay _ 67.0 _ ) Assistant and ) Amateur Compútente However, in the nature of things, lawyers’ time records can never be fully accurate and complete; time is only one factor — and not a controlling factor — in fee determination; the errors were both favorable and unfavorable to plaintiffs’ counsel; and the overall result is affected little if at all by the discrepancies. There was some duplication in effort by plaintiffs’ attorneys due to a mid-trial hospitalization of one attorney. In a trial of this magnitude (requiring several attorneys’ attention simultaneously) and of this duration, it is neither unusual, unexpected nor unreasonable that different attorneys will appear for a party, and that some duplication in effort is necessary. Two of defendant’s attorneys in Atlanta discontinued their early appearances and their work was taken over by other Atlanta and Charlotte counsel. See response to order requiring discovery, document No. 236, filed February 21, 1978. In a motion filed December 2,1977, and a brief filed March 14, 1978, the defendant contended that the 2,500 or so hours worked by plaintiffs’ attorneys was not reasonable and necessary. The most significant factors bearing on that contention include the complexity of the issues, the magnitude of the evidence, the efficiency of the plaintiffs’ attorneys, and the legal effort that the other parties deemed appropriate and necessary to represent their position. The extensive briefing on numerous legal contentions, a 1,540-page 3-volume transcript of live testimony, the many books of documents, the extended depositions and the multi-hour hearings could alone support a finding that the plaintiffs’ attorneys did their job in a reasonable, necessary time. In addition, plaintiffs’ counsel have been well-prepared and efficient in all presentations to this court. Finally, the defendant cannot dismiss the relevance of the fact that defendant’s outside counsel worked about 4,900 hours on the case — nearly twice as much as the time spent by plaintiffs’ counsel. To describe the time worked by plaintiffs’ attorneys simply as reasonable and necessary is an understatement. They did an efficient, necessary job. 5. Reputation, Ability and Experience of Plaintiffs’ Counsel. — Plaintiffs’ counsel are thoroughly competent, widely known and fully experienced and successful in the conduct of all types of constitutional and civil rights litigation. They are tenacious and resourceful and have most adequately met the demands on time and energy and other resources which these cases required. They are entitled to compensation as first class lawyers. 6. Loss of Other Business. — Representing plaintiffs against Southern Bell in a case of this sort is not likely to gain representation for plaintiffs’ counsel of any other utility or sizeable employer of any kind. The time required for this case is enough to prevent these attorneys from taking much other legal business. 7. Fees Customarily Charged for Similar Services. — Fees in eases like this have varied all over the financial landscape from figures so low that they do not begin to pay office expenses to rates in the order of $400 to $500 a day. The going rate for experienced lawyers of reasonable ability in this community is approximately $60 to $75 an hour and upwards. According to affidavits on file, plaintiffs’ counsel (who operate out of the most economical and convenient law building in the community, and on a relatively modest scale) have to earn something over $25 an hour in order to pay their office expenses before any profit is left for the partners and the tax collectors. For law partners in a responsible firm in Charlotte that expense figure is low. 8. Whether the Fee is Fixed or Contingent. — Compensation of plaintiffs’ attorneys is dependent upon whether the plaintiffs recover. Not all such cases are successful. Under § 706(k) of Title YII of the Civil Rights Act, 42 U.S.C.A. § 2000e-5(k), courts are expected to award adequate fees to encourage individuals injured by discrimination to seek judicial relief. Johnson v. Georgia Highway Express, Inc., supra, at 716. 9. Expenses and Advancements. — Plaintiffs’ costs and expenses in the amount of $7,530.34 are reasonable, and will be allowed in full. In addition, an expert witness fee will be allowed for the testimony of Dr. Lonnie Keith in the amount of $300.00. 10. Compensation for the approximately 600 hours of work by law clerks and lay assistants will be made at the rate of $12.50 per hour, which is in line with but somewhat less than the rate at which, in other recent orders, compensation has been awarded for the services of full time paralegal assistants. 11. Fees Earned To Date. — Taking all the above factors into account, the court is of the opinion and finds that a reasonable fee for the services rendered to date by plaintiffs’ attorneys in this case is $225,-000.00. 12. Interim Fee Determination.— Since the case will no doubt be appealed and the result could change the award, no effort will be made at this time to award the full amount of the fees reasonably earned to date. Rather, consistent with the spirit of the act of Congress and with the practicalities of this situation, an interim fee award is made in the amount of $125,-000.00. This will, of course, be credited against any final award of fees that may be made. IT IS THEREFORE ORDERED: 1. That defendant shall pay to the plaintiffs: (a) Costs and expenses of $7,530.34. (b) An expert witness fee for the testimony of Dr. Lonnie Keith in the amount of $300.00. (c) Interim attorneys’ fee in the amount of $125,000.00. 2. That a final assessment of fees and a final fee order will be made at the conclusion of the litigation. MEMORANDUM Findings of fact and conclusions of law are filed simultaneously with this memorandum. The findings and conclusions are the product of: 1) an evidentiary proceeding consisting of live testimony from May 23, 1977, through June 3, 1977, and voluminous documentary evidence; 2) a memorandum of the court’s preliminary determination filed on June 29, 1977; 3) proposals and alternative proposals by the parties on the details in the findings of fact and conclusions of law; 4) a December hearing longer than three hours at which most of the disputes over findings and conclusions were argued and decided; 5) voluminous post-trial briefing both before and after the December hearing; and 6) extensive study of the record and deliberation by the court on the evidence. There are two objections by the defendant to proposed findings and conclusions that they have been considered since the December hearing, and they will be briefly discussed in this memorandum. The defendant has argued: 1) individual claims for back pay by Ms. Stastny, Ms. Andrews, Ms. Springs, and Ms. Rogers were not part of the litigation in the liability stage of the trial, and such matters should not be determined in the findings and conclusions; and 2) under United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), back pay cannot be awarded for discriminatory failures to promote to vacancies between December 18, 1968 (two years before Ms. Stastny filed her first claim with the Equal Employment Opportunity Commission) and September 18, 1970 (ninety days before Ms. Stastny filed her first claim with the Equal Employment Opportunity Commission). As part of the determination of liability, plaintiffs clearly intended and the defendant anticipated litigating questions of whether the four women were qualified for promotions without regard to the specific vacancies for which they might have been hired. Accord, document number 151, plaintiffs’ statement of facts and contentions in response to order for complex cases, filed February 18, 1977 [hereinafter “document # 151”], at pp. 9-32, 47-119,120-165, 166-193; document number 163, defendants’ statement of facts and contentions in response to order for complex cases — rebuttal portion of defendant’s pretrial statement in the Stastny litigation, filed April 19,1977 [hereinafter “document # 163”], at pp. 2-16, 92-94, 21-29, 95-97, 29-36, 97-98, 36-44, 98-100. All parties also anticipated that the plaintiffs’ evidence on liability would involve a comparison of the qualifications and treatment of Ms. Stastny, Ms. Andrews and Ms. Springs with that of specific male employees of the defendant. See document # 151, at pp. 15, 55, 89, 112-113, 139-141; document # 163, at pp. 5-6, 22, 24-27, 31-32, 97. In addition, although the plaintiffs did not present evidence on Ms. Rogers’ specific claim that, in violation of Title VII, she was not promoted to a position to which Mr. Stamey was transferred, the defense cross-examined her on that claim and then presented Mr. Stamey as a witness. Ms. Rogers’ claim about that promotion has thus been fully litigated at the instance of the defendant. The defendant cannot object to a finding that compares Ms. Rogers’ and Mr. Stamey’s qualifications. (Transcript pp. 82-83, 1179-82, 1217-18.) Findings have thus been made on all of these litigated issues. The second proposition by the defendant, that back pay may not be allowed for failure to promote to vacancies that were filled more than ninety days before Ms. Stastny filed a charge with the Equal Employment Opportunity Commission, is premised on the theory that a failure to promote is a discrete, dateable wrong. The defendant then cites the Supreme Court’s decision in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) for the proposition that a discriminatory act that is not the subject of a timely EEOC charge is the equivalent of a discriminatory act which occurred before the enactment of Title VII. In comparing the Evans decision with Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the Court clearly limited the impact of Evans. About Evans they said: “[I]n the case before us we do not reach any remedy issue because respondent did not file a timely charge.” The Fourth Circuit Court of Appeals has accepted the proposition that, when a timely charge of discrimination has been proved valid, discriminatory non-promotions up to two years before the filing of a charge with the EEOC may be the subject of back pay relief. White v. Carolina Paperboard Corp., 564 F.2d 1073, 1082, 1085-87 (4th Cir. 1977). Ms. Stastny has filed a timely charge of discrimination, and the plaintiffs have proven that each of them individually and the class as a whole have been subjected to pervasive discriminatory treatment in employment opportunities after September 18, 1970. The discriminatory failures to promote after December 18, 1968, were a part of the defendant’s continuing pattern, practice, and policy of discrimination. Complete back pay relief is warranted and will be awarded in those instances where it is justified by the evidence presented to the master. (It should be noted that Title VII limits back pay to two years before the filing of a charge with the Equal Employment Opportunity Commission. The plaintiffs and class members will never be made whole for the discriminatory acts from 1965 to 1969.) FINDINGS OF FACT Marguerite Stastny, a management employee of the defendant, began this action on January 21, 1975, alleging past and continuing sex discrimination against her by the defendant, in promotion, pay and other terms and conditions of her employment, and seeking back pay and injunctive relief. On April 14, 1975, Plaintiff Stastny amended her Complaint to allege a class action. Lillie Andrews, Texie Springs, and Mary Rogers filed separate but similar actions on December 11, 1975, April 6, 1976, and May 3, 1976, respectively. Plaintiffs Andrews and Springs are currently employed by the defendant as First Level managers. Plaintiff Mary Rogers, a former Second Level management employee, retired in August, 1976. Each alleged a class action. Each has been certified as a class representative. Each plaintiff is a female United States citizen, and resident of Charlotte, North Carolina. Each filed complaints with the Equal Employment Opportunity Commission as follows: Marguerite Stastny on December 18, 1970, May 17, 1971, August 23, 1971, September 14,1971, and December 14, 1972; Lillie Andrews on October 20, 1971, January 20, 1972, April 18, 1972, and September 15, 1975; Texie Springs on September 9,1974; and Mary Rogers on December 17, 1975 (Plaintiffs’ Exhibit No. 1, p. 4). Each received “right-to-sue” letters as follows: Marguerite Stastny on January 2, 1975; Lillie Andrews on October 6, 1975; Texie Springs on March 24,1976; and Mary Rogers on April 15,1976 (Plaintiffs’ Exhibit 1, pp. 5-8). The defendant is an employer engaged in interstate commerce, and has had fifteen or more employees for each working day in each of twenty or more calendar weeks of the year since at least 1965. The defendant is a subsidiary company of American Telephone and Telegraph Company, operating in the four-state area of North Carolina, South Carolina, Georgia and Florida. The scope of this action is limited to the defendant’s North Carolina operations, and when Southern Bell is referred to hereinafter, reference is to operations within the North Carolina area. On August 12, 1975, a class action was certified. That order was amended on June 22, 1976, redefining the class to consist of: a. All females employed in North Carolina in management positions since August 20, 1970, who have been classified, restricted, discriminated against, or otherwise deprived of employment opportunities or status because of their sex, and b. All females (including female craft employees of the defendant) who, since August 20, 1970, have been denied employment in management positions in North Carolina on account of their sex. Since Plaintiff Stastny’s charge was not received by the EEOC until December 18, 1970, the appropriate class starting date is September 19, 1970. Plaintiff Stastny was named as a class representative. On March 24, 1976, the cases of Marguerite Stastny, Lillie Andrews, Texie Springs and Mary Rogers were consolidated for discovery and trial, pursuant to Rule 42 of the Federal Rules of Civil Procedure. Trial was held beginning on May 23,1977, without a jury. Plaintiffs presented evidence in three varieties: Testimony by Plaintiffs Stastny, Andrews, Springs and Rogers, and by Robert Stastny, husband of Marguerite Stastny and an employee of the defendant, regarding treatment of individual employees; testimony of John J. Ryan, former Vice President and General Manager of Southern Bell in North Carolina, concerning policies and practices of the company; and statistical evidence, including opinions of a statistical expert, Dr. Lonnie Keith. Defendant presented documentary, statistical evidence and testimony of its expert, Dr. James Gwartney. In addition, defendant presented extensive evidence concerning the genesis and implementation of consent decrees entered into by the defendant and various government agencies in 1973 and 1974, including the 1976 Supplement Order to the 1973 Decree, from witnesses Donald Leibers, Director of Equal Opportunity and Affirmative Action for American Telephone and Telegraph Company; Ed Welch, Equal Employment Opportunity Coordinator for Southern Bell in North Carolina; William H. Brown, former Commissioner and Chairman of the Equal Employment Opportunity Commission; and Harry Brick-ell, Director of Personnel for American Telephone and Telegraph Company. Defendant also presented the deposition of David Wilson, Vice President of the City National Bank in Charlotte. Defendant also presented, in written form at the Court’s prompting and with plaintiffs’ concurrence, the testimony of Atlanta-based Southern Bell employees: Roy Howard, James W. Redmond, Jr., Tommy R. Sommer and Randy Jay. Mr. Redmond also testified and was cross-examined orally in court. Written testimony was also offered by Kathleen Wood of Atlanta. Defendant also presented testimony of seven current or former employees of Southern Bell in North Carolina. Arguments were heard on the law and evidence on June 28, 1977. Based upon the evidence presented, the Court makes the following Findings of Fact. I. Statistical Evidence and Expert Witnesses — Weight of the Evidence: During trial, the Court viewed extensive statistical evidence and heard expert testimony from both plaintiffs’ and defendant’s experts. In addition, both parties expended considerable effort in cross-examination and presentation of evidence designed to impeach data bases underlying the statistical evidence and conclusions, expert and otherwise, to be drawn therefrom. Inaccuracies in data bases exist on both sides. While these inaccuracies no doubt affected the statistical results, in the main the statistical evidence comparing male and female employees of the defendant merits considerable weight, primarily because its conclusions, though sometimes numerically varying, are generally consistent and mutually corroborative. This is particularly true with regard to plaintiffs’ Schedules X, Y, and Z (Plaintiffs’ Exhibits 34-86), showing relative positions of employees within the company, entries into management and promotions; defendant’s Tables A, B, and C (Defendant’s Exhibits 31, 32 and 33), covering the same area; and Tables 21, 23, 25, and 26 in Plaintiffs’ Exhibit No. 1, stipulated to by both parties, and showing numbers of men and women at various levels and locations within the company. Expert testimony concerning regression analyses from both sides, while informative, is less valuable. This results in part because of inaccuracies in the data bases upon which the regressions are founded. There is, however, a more basic consideration. Both sides have admitted the limited utility of regression equations to explain “real world” promotional and pay decisions (Transcript, p. 1303). The Court views this as a significant shortcoming. Regression analysis begins with the assumption that certain independent variables in fact determine the outcome of decisions to raise pay and promote. Such assumptions are intellectually questionable and not grounded upon any solid evidence. The likelihood of accurate conclusions is further endangered by the use of the “stepwise” regression technique, whereby in assigning values to the independent variables to explain salary differences between the sexes, the computer selects first the variable which does the most explaining, lets it explain all of the difference it can, and then goes to the next most explanatory variable, etc., allowing each variable to explain all it can of what is left. Thus, if variables overlap in their explanations, which seems likely to occur, the explanatory power of succeeding variables is discounted. While much of the statistical evidence is not error free, it contains a minimum of guesswork and provides a sound basis from which inferences and conclusions may be drawn by a fact-finder in the same manner courts and juries have found facts for centuries. The experts’ testimony often supports these inferences and conclusions, but sometimes does not. On many occasions, the conclusions produced by the regressions appear to depend in large part on the side producing them and in some instances conclusions by a single expert are self-contradictory. Thus in according weight to statistical proof and expert testimony, the Court has relied heavily on the former in conjunction with testimony of individuals and assigned considerably less weight to the latter for the reasons set out above. II. The Management Hierarchy at Southern Bell: Management employees at Southern Bell are divided horizontally into management levels and vertically into departments. The horizontal levels define one’s rank and roughly one’s pay. The eleven departments essentially define tasks, e. g., the Marketing Department is responsible for selling systems and equipment; the Plant Department installs and maintains the equipment. There are six levels of management. At the top, the Sixth Level, is the Vice President and General Manager for North Carolina Operations. Under him at the Fifth Level are department heads, then division level managers (Level Four), and district level managers (Level Three). The subdis-trict levels (Levels One and Two) consist of secretarial and clerical employees and supervisors of non-management employees (Level One) and supervisors of First Level employees and complex engineering task workers (Level Two). The approximate numbers of persons at these levels were, on March 31, 1976, as follows: Level Number Third Level and above 150 Second Level 526 First Level 1,330 Total 2,006 Approximately 35% of this total is female. The four lowest management levels (Levels 1-4) are subdivided into salary classes. Designations for salary classes have undergone repeated changes since 1965, the last major change occurring with the Management Job Evaluation, a 1974 company-wide re-evaluation of jobs, which spawned the current designations, as follows: Level Salary Class 1 A, B, C, D, E 2 A, B 3 A, B 4 A, B As a general rule, pay increases from one salary class to the next. However, it is possible for a manager in one salary class who receives a high performance appraisal from his supervisor to receive a larger salary than persons with low appraisals in the next higher salary class. The two lowest paying salary classes in Level 1, 1-A and 1-B, though styled as management positions, are clerical, non-supervisory positions. In that respect they more closely resemble craft positions than management. They are composed almost entirely of women. Females are, in fact, concentrated in the three lower management levels, which contain 98.5% of the management employees (Tr. 14). The three highest levels (Fourth, Fifth and Sixth) which contain 1.5% of management (Tr. 14) are all male and have been so since at least 1965. Currently, of the approximately 150 persons at Third Level and above, five (3.3%) are female — all at the Third Level (Plaintiffs’ Exhibit No. 1, Table 21-C, p. 54). The number of females at Second Level was insignificant prior to 1972. In 1970, approximately 3 of 237 Second Level managers were female (1%). In 1971, there was little improvement — 6 of 256 (2%) (Plaintiffs’ Exhibit No. 36). In 1972, the percentage increased to 13.8% (80 of 581). By March 31,1976, the figure was 15.6% (82 of 526) (Plaintiffs’ Exhibit No. 1, Table 21-C, p. 54). A year later the figure had increased to 18.4% (100 of 543) (Defendant’s Exhibit No. 35-E). Management women at Southern Bell are found in considerably larger numbers at First Level, especially in the lower salary classes. In 1970, 62% of the female managers at Southern Bell were in the lowest First Level salary classes (T-3, T-5, T-6, S-l — S-3, 1-3 — 1-5—roughly the historic precedents of current salary classes 1-A and 1-B, non-supervisory positions). There were no men in these lowest paid non-supervisory positions in 1970 (Plaintiffs’ Exhibit No. 35), and the absence of any significant number of men in these largely clerical positions persists today. As of March 31, 1976, males occupied only 14 of 396 positions in Salary Classes 1-A, 1-B and 1-C (3.5%). Those men represented 1.1% of the entire male management population. In comparison, the 382 women in those same non-supervisory levels represented 54.0% of the entire female management population. At higher, supervisory Level 1 positions, men appear in greater numbers. In 1970, men occupied 76.4% (761 of 996) of the then rough equivalents of Salary Classes 1-C, 1-D and 1-E. The 761 males in those positions represented 67% of the male managers at Southern Bell in 1970. The 235 women in those positions represented 38% of the female managers at Southern Bell in that year. There was almost no change in these percentages for 1971 (Plaintiffs’ Exhibit No. 36). In 1972, female percentages in the highest First Level salary classes began to improve, and the numbers underwent considerable fluctuation as a result of the Management Job Evaluation in 1974. However, by March 31,1976, the female percentage of Salary Classes 1-D and 1-E (the “supervisory” salary classes under current nomenclature) was only 25.5% (about 2% above the percentage of women in “supervisory” positions in 1970) (Plaintiffs’ Exhibit 1, Table 21-C, p. 54). In March, 1976, 33.6% of all female managers were at supervisory First Level positions, compared to 53.5% for men (Plaintiffs’ Exhibit No. 1, Tables 21-EE and 21-FF, p. 66). Considering First Level as a whole, the following figures are significant: In 1970, 67% of the male managers and 99 + % of the female managers were at First Level. In 1971 these figures were little changed (Plaintiffs’ Exhibit No. 36). By December 31, 1972, the figures were 48.1% of the men and 88.5% of the women. By March 31, 1976, 54.6% of the male managers at Southern Bell and 87.6% of the female managers at Southern Bell were at the First Level of management. In terms of the percentage of each management level filled by each sex, a picture of the location of male and female managers at Southern Bell resembles counter-pyramids, with the men at the top and women at the bottom. This state of affairs is no accident, but rather the result of hiring and promotion practices followed at Southern Bell from sometime in the past, at least as far back as 1965, to the present. An examination of these practices reveals how the foregoing results were reached. III. Evidence of Discrimination Against Women by Denying Women Promotion From Non-Management into Management: The defendant fills approximately 87% of its management vacancies by promotion from non-management. The female percentage of non-management employees at Southern Bell ranged from 66.0% in 1970 downward to 60.9% in 1975 (Plaintiffs’ Exhibit No. 1, Table 25, p. 75). During this same period, the female percentage of management employees was considerably less, hovering around 35-37% (Plaintiffs’ Exhibit No. 1, Tables 21-A, 21-B and 21-C, pp. 53-54; Defendant’s Exhibit No. 32-A). Evidence presented by the plaintiffs shows, at least in part, the reason for this disparity. From 1970 through 1975, the female percentage of persons promoted into management has consistently been smaller than the female percentage of non-management employees — 42.9% vs. 66% in 1970; 56.9% vs. 66.6% in 1971; 53.3% vs. 64.7% in 1972; 44.7% vs. 62.7% in 1973; 24.0% vs. 61.9% in 1974; and 57.4% vs. 60.9% in 1975 (Plaintiffs’ Exhibit No. 87). Defendant’s denial to women of promotion into management from non-management is part of a pattern of denial to females of entry into management from any source. Prior to 1970, defendant did not hire female college graduates into management positions. Prior to 1970, women were as a matter of policy denied participation in the Initial Management Development Program (IMDP) for North Carolina, a high intensity training program for college graduates entering management, in. effect in North Carolina for some years prior to 1965 until 1974. In 1970, one of fifteen IMDP’ers was a woman. In 1971, one of eleven was a woman. In 1972 and 1973, the ratios improved to 4 of 16 and 3 of 10, but the total participation of women in the program from 1965 through 1973 was only 8.7%. With the exception of 1975 when the only two managers hired were women, between 1965 and 1975 the percentage of managers hired in North Carolina who were women never exceeded 30%, and the female average for the period was 19.6%. This figure compares unfavorably with the female percentage of the outside labor force, 38%, and with census data offered into evidence by the defendant showing the female percentage of various occupations in North Carolina (Defendant’s Exhibit No. 27-C). The Court concludes that the defendant has not discriminated against women in hiring them from outside the company since 1970. However, the Court considers the foregoing evidence on hiring, particularly evidence regarding non-hiring, of college women prior to 1971, to support the conclusion that defendant conducted a policy and practice of denying women entry into management which operated to discriminate against non-management women who sought and were qualified for promotion into management since at least December 18, 1968. IV. Discrimination Against Women by Denying Them Promotions Within Management: Women have been denied promotional opportunities at Southern Bell in two respects. First, as to promotions into upper First Level management positions and above, women have been promoted at slower rates than males. Level 3 and above: The evidence shows that, as of year-end 1970, there were no women at Level 3 (Plaintiffs’ Exhibit No. 35, Table Z-l), and that no women were promoted to Third Level between January 1, 1965 and January 1, 1971. Evidence presented by the plaintiffs shows promotion of only 2 females to Level 3 after January 1, 1971. (Plaintiffs’ Exhibit No. 67, Table Y-l). However, the Court notes that tables stipulated as accurate by both parties show two women at Level 3 in 1972, four in 1974, and five in 1976 (Plaintiffs’ Exhibit No. 1, Tables 21-B, 21-N and 21-X, pp. 53, 58 and 62). That women were promoted to Level 3 between 1970 and 1975 is confirmed by testimony of John Ryan, former Vice President and General Manager, who stated that two women were promoted to Level 3 in 1971 under his direction. As for men, plaintiffs’ and defendant’s tables do not show the precise numbers promoted to Level 3 for selected years. However, plaintiffs’ evidence shows that in 1971 92.3% of those promoted from Level 2 positions were male, in 1972 — 100%; in 1973 — 66.6% (2 of 3); and in 1975 — 90%. Assuming in fact, as the stipulated tables show, that five women were promoted to Level 3 between January 1, 1971, and March 31, 1976, the female percentage of promotions to Level 3 does not appear disproportionately small for the period when compared to the percentages of women at Level 2 (the logical labor pool for Level 3) — 1.3% in 1970 (Plaintiffs’ Exhibit No. 35, Table Z-l) to 15.6% in March, 1976 (Plaintiffs’ Exhibit No. 1, Table 21-Y, p. 63). However, but for defendant’s artificial limitations on female access to Level 2 during this period and before, especially during the earlier years — 1970, 1971, and 1972 — the pool of women eligible for Level 3 promotions would have been greater and female promotions to Level 3, all things being equal, would have occurred at a greater rate. That such a pattern was and remains in operation at Southern Bell is further supported by the total absence of women above Level 3 to the present day. Level 2: Promotions of women above then Level 1 prior to 1972 were negligible. Women comprised approximately 1% of the managers at Level 2 in 1970 (3 of 237) and 2% in 1971 (6 of 256) (Plaintiffs’ Exhibits 35 and 36). In 1972 salary class nomenclature changed and two first level salary classes (1-10 and 1-11) were redesignated as Level 2. At least in part as a result of that change, the female percentage at Level 2 increased to 13.8% (Plaintiffs’ Exhibit 1, Table 21-A, p. 53; Plaintiffs’ Exhibit 37), and it has remained near that figure ever since. (On March 31, 1976, women had increased to 15.6% of the second level, Plaintiffs’ Exhibit 1, Table 21-C, p. 54.) A year later the figure was up to 18.4% (Defendant’s Exhibit No. 35-E). Plaintiffs’ and defendant’s tables do not provide bull’s eye information concerning percentages by sex of persons promoted into various levels. Rather the tables (Plaintiffs’ Exhibits 67-70 and Defendant’s Exhibit 31-B) measure numbers and percentages of persons being promoted from the various salary classes and record the average level by sex to which they ascended. Still these tables give a rough idea of the sexual ratios of those being promoted. In 1972 it appears that approximately 15% of those promoted to Level 2 were women (Plaintiffs’ Table — 16.4% and Defendant’s Table — 14.3%). In 1973 the figure was 22.5% (Plaintiffs’ Exhibit 70); and in 1974 — 22.2% (Defendant’s Exhibit 31-B, Table B-l (1974)). In 1975 the figures diverge. Plaintiffs’ tables show 2 of 6 promoted to Level 2 (33.3%) were women (Plaintiffs’ Exhibit 70). Defendant’s tables show the reverse (4 of 6 — 66.7% were women) (Defendant’s Exhibit 31-B, Table B-l (1975)). The female percentage of persons at Level 1 for these years (1972-1975) was between 48% and 52% (Plaintiffs’ Exhibit 1, Table 21-A, p. 53; Plaintiffs’ Exhibit 39). While Level 1 in a general sense forms the labor pool for persons promoted into Level 2, plaintiffs’ and defendant’s tables of promotions indicate that in fact most promotions into Level 2 came from supervisory first level positions (1-D and 1-E). In 1972 and 1974 these positions were 42.2% female (Plaintiffs’ Exhibit 1, Tables 21-A and 21-B, p. 53). In any case, except for 1975, promotions into second level appear to be well below labor pool percentages. The same is true of promotions within Level 2. In 1975 the female percentage of Salary Class 2-A (the lower second level salary class) was 22.7%. The female percentage of Salary Class 2-B (the higher second level salary class) was 5.5% (defendant’s Exhibit 32-B). This pattern is consistent, with diminishing proportions for women, back to 1970 when there were almost no women in Level 2 in any salary class (Defendant’s Exhibit 32-B). Defendant’s Tables B-l in Defendant’s Exhibit 31-B show that promotions of women into upper second level salary classes have been, compared to men, almost nonexistent from 1970 through the present. In 1975, for promotions from 2-A, the average promotion was to 2-B for both men and women, but 11 persons promoted were male and only 1 was female (Defendant’s Exhibit 31-B). The female percentage of Level 2-A for that year was 22.7%. Level 1: Women have been promoted into the higher first level salary classes at slower rates than males. Plaintiffs’ tables show that prior to 1972 the number of women in the highest first level salary classes (then 1-10 and 1-11) was very small (6.5% in 1970 and 8.9% in 1971) (Plaintiffs’ Exhibits 35 and 36). The discriminatory basis of the percentage disparity between males and females in these positions is underscored by the fact that the female percentage of first level management, the logical labor pool for most of the promotions to high first level positions, exceeded 50% during this period. (In craft, another possible source for promotions to high first level salary classes, the female percentage exceeded 60%.) Figures for 1972-1973 are obscured by changes in salary class designations for Classes 1-10 and 1-11 to 2-23 and 2-24 (Second Level positions). However, in 1972, women comprised only 31.7% of salary classes 1-17 and 1-19, the two highest first level salary classes (Defendant’s Exhibit 32-B). No figures were available for 1973. In 1974 the female percentage of salary class 1-E (the highest first level position) was 12.5% and in 1975 it was 15.8% (Defendant’s Exhibit 32-B). The female percentage of Level 1, the labor pool for most of the promotions to 1-E and its historical predecessors, for the years 1971-1975 hovered around 47% — 50%. For the years 1972-1974 the female percentage of salary classes 1-C, 1-D and 1-E (or their historical equivalents) was 42.2%. Under those classes, the other first level classes were 99-100% female (Plaintiffs’ Exhibit 1, Tables 21-A and 21-B, p. 54). Again craft was over 60% female. On March 31, 1976, the percentage of Levels 1-D and 1-E which was female was 25.5% compared to the lower levels, 1-A, 1-B and 1-C which was 96.5% (Plaintiffs’ Exhibit 1, Table 21-C, p. 54). While these figures do not actually measure promotions, they show that percentages of women in upper first level positions have consistently remained well below the percentage of women in the labor'pools. In addition, the tables in Defendant’s Exhibit 31-B show that, except for 1972 when there was a shift of upper first level positions to second level, promotions to high first level salary classes (1-10 and 1-11,1-17 and 1-18 and 1-E) have been heavily disproportionately male considering the labor pool. Plaintiffs’ Exhibits 69-70 support this conclusion. Discrimination against women in promotions is apparent in a second respect. When men and women were promoted from lower First Level salary classes, women were, on the average, promoted to lower salary classes than their male counterparts (and at lower pay). This phenomenon was true of promotions from Salary Classes 1-A, 1-B, 1-C and S — 1 (and their historical equivalents, T-l through T-9, S-2 through S-4, 1-3 through 1-8 and 1-13 through 1-18) for the period 1965 through 1975. Defendant has presented testimony which tends to show that for certain salary classes for certain years men promoted to those salary classes had, on the average, longer periods between promotions than women promoted to those classes (Defendant’s Exhibits 34A-H). These figures are of limited utility because they are limited to the years 1973 through 1976, a period when conditions were improving at Southern Bell under the Consent Decree (the Court notes that for the first year tabulated, 1973, women promoted into salary classes shown in fact had more longevity on the whole between promotions than did males); and they are limited only to those salary classes into which both men and women were promoted, which should exclude a substantial number of lower level women and upper level men; they are limited to only those persons promoted (men and women) and do not inform concerning persons not promoted — persons upon whom plaintiffs’ claims are primarily focused; and they are apparently based on defendant’s definition of promotion; and figures showing number of promotions in these tables are often directly contradictory to figures showing numbers of promotions in Defendant’s Exhibit No. 31-A. The effect of defendant’s promotion practices is to lodge women in lower salary classes at lower pay than comparable men. The Court finds that this practice has been ongoing since at least January 1, 1965 and continues today, though its effects have been reduced to some degree by defendant’s performance under the Consent Decrees. V. Discrimination Against Women by Denying Them Pay Equal to Men Within Salary Classes: Evidence presented by both plaintiffs and defendant shows that with few exceptions male salaries averaged more than female salaries within salary classes for 1970 through 1975 (Plaintiffs’ Exhibits Nos. 35, 36, 37, 38 and 39; Defendant’s Exhibit 32-D, Tables A-3 and A-3A). This occurred in spite of the fact that in almost every salary class for almost every year, women exceeded men in average company seniority. In most First Level salary classes where men and women appeared, women exceeded men in average years in current management level. In the lower First Level salary classes, 1-A and 1-B, and their equivalent, women exceeded men in average years in current salary class. There were only 9 occasions from 1970 through 1975 when average female salary exceeded average male salary within a salary class. (See Defendant’s Exhibit 32-D, Table A-3: 1970 — Salary Classes 1-6 and 1-10; 1971- — Salary Classes 7-6 and 1-6; 1972 — Salary Class 1- 16; 1974 — Salary Classes 1-A, 1-B and 2- 23; 1975 — Salary Class 1-A.) In eight of those nine occasions, women exceeded men in average company seniority, average years in current management level, and average years in current salary class. In the one exception (Salary Class 2-23, in 1974) women exceeded men only in average company seniority. However, there were only two women and one man in the salary class. In addition, on the nine occasions where average female salary exceeded average male salary, the difference between average salaries was usually no more than several hundred dollars per year, and usually occurred in salary classes where there were very few males (Defendant’s Exhibit No. 32-D, Table A-3). Where average male salaries exceeded average female salaries within a salary class, the excess was often close to or above $1,000 per year, and in upper level positions approached and exceeded $2,000 per year. Men are also favored in average starting salaries within salary grades. Using plaintiffs’ tables and the groupings of salary classes appearing therein, it is evident that from 1970 through 1975, of the 13 instances in which men and women were hired into the same group of salary classes, men began at higher average salaries than women nine times (Plaintiffs’ Exhibits Nos. 45 and 46). Under defendant’s tables, the results were similar: Of the sixteen occasions in 1970, 1971,1972,1974 and 1975 in which men and women were hired into the same salary classes, men were hired at higher average salaries on twelve occasions (Defendant’s Exhibit No. 33-B). The Court finds no business necessity justification in the evidence presented for the discrepancies in salaries between men and women in the same salary classes, and conclude that the discrepancies are due in large part to sex. VI. Pay and Promotional Disparities and the Appraisal System : Promotions and pay ratings for management employees of Southern Bell are dependent upon recommendations of one’s superiors — primarily one’s immediate superi- or. The form of recommendation most widely relied upon is the annual appraisal, which, by company policy, should be administered, as the name implies, once a year. Forms used for annual appraisals have undergone several metamorphoses through the years, but the appraisals and the policies behind them have remained consistent in the following respects. 1. They are of key importance to one’s chances of promotion and to a high pay rating; 2. They normally constitute the primary written record of one’s performance in his or her current job and of his or her potential for promotion; 3. They are given by one’s immediate supervisor with the concurrence of the next higher supervisor or supervisors; 4. They are based primarily upon subjective evaluation of one’s performance in his or her current job and one’s potential for performance at higher levels. The Court considers this latter factor to be highly significant in light of the statistical evidence showing disparity in promotions and pay of men and women. As other courts have noted, where a subjective “best qualified” standard governs promotional opportunities, potential for discrimination against groups with little or no power in the decision making process is magnified. Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir., 1974); Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir., 1972). In addition to the subjective nature of the appraisals, other practices at Southern Bell attested to by individual plaintiffs contribute to this potential for discrimination. Management vacancies are not posted nor formally noticed in any manner. Managers interested in promotion must rely upon the “grapevine” for news of openings above them. Job requirements, descriptions and requisite qualifications are not publicized. There is no formal bidding system or other means by which one may request a promotion and transfer other than a self-initiated oral or written message to supervision or EEO Coordinator. There is no system for peer or subordinate evaluation of a manager’s performance or promotability. In short, promotion and pay decisions are, and have been since at least 1965, entirely in the hands of one’s superiors — primarily one’s immediate boss — and are conferred upon employees based largely upon the boss’s opinion of the subordinate’s performance. Most bosses are men. Statistical evidence shows, for example, that in 1972, 70.6% of management employees classed as supervisory were men. In 1976, the figure was higher, 79.8% (Plaintiffs’ Exhibit No. 1, Tables 21-A and 21-B, pp. 53-54). Relatively few of the supervisory women were above the First Level [15.9% (82 of 517) in 1972; 26.8% (86 of 325) in 1976]. These conditions make it likely that a woman (or a man) will be rated by a male boss. Individual testimony bears this out. Plaintiff Mary Rogers testified that as a management employee she had had only one female supervisor (in 1952-1953) and that, though she had appraised approximately 150 employees as a manager, she had never appraised a man (Transcript, p. 65). Texie Springs and Lillie Andrews also testified they had never been asked to appraise a man, though both of them have been appraised by women in the Commercial Department, a department which is heavily female (Transcript, pp. 133, 139-140, and 483). Ed Welch, Third Level Equal Employment Opportunity Coordinator for the company, has had 8 to 9 supervisors since beginning with Southern Bell, and none were women (Transcript, p. 914). Plaintiff Texie Springs testified that she had had approximately 22 supervisors at Southern Bell since entering management, only 2 of whom were women. The operation of an opinion-based appraisal system, largely controlled by one sex, such as the one at Southern Bell, provides an ideal environment for disparate treatment of sexes. In fact, as previously noted statistical evidence shows, that is what has occurred. Evidence comparing male and female appraisal ratings for the year supports this conclusion. For that year, the only year for which these comparisons were made, which, under the historical patterns established in this case the Court would expect to be the year of least disfavor to women, a higher percentage of men received high ratings in both performance and promotability than females (Defendant’s Exhibits Nos. 29-A and 29-B). The same pattern appears in figures for Second Level Traffic Department personnel submitted in written testimony by defendant’s witness James W. Redmond, Jr. By contrast there has been no objective evidence that women are less capable managers at Southern Bell than men. To claim that the 1976 comparison of appraisal results shows this merely begs the question. Under some circumstances women have been systematically excluded from appraisal altogether. From 1964 through September, 1972, the defendant held annual appraisal conferences attended by the Vice President and General Manager and department heads (Fifth and Sixth Level personnel). The purpose of these conferences was to appraise the performance of Second, Third and Fourth Level management employees, and to chart their potential for future advancement, including in some cases the ultimate level to which they might advance. Exclusion of a Second, Third or Fourth Level manager from appraisal at such a conference severely damaged his or her possibility for promotion. By 1970, 1971, and 1972, there were female management employees in the Second Level at Southern Bell (and at least two Third Level female managers by year-end 1972). However, these female managers were not'appraised in the annual appraisal conferences (Transcript, testimony of John Ryan, pp. 415-417). The two women who were promoted to Third Level management in 1971-1972, were apparently promoted in spite of this practice and as a result of direct intervention in their behalf by the Vice President and General Manager, who directed that they be recommended for promotion (Transcript, testimony of John Ryan, p. 408). The uneven operation of the appraisal system is manifest in the case of the individual plaintiffs. Mary Rogers was not appraised for the years 1965, 1966, 1967, 1972 and 1975 (Transcript, p. 63). The record of the 1971 annual appraisal conference for appraisal of a group of First Level employees, including Mary Rogers, shows that under the promotion ratings given, the men appraised would be promoted within half the time of the women. All of the 13 appraisers were men (Transcript, pp. 59-60). Appraisals are often undertaken, completed and filed without notice to the person being appraised. In 1975, Texie Springs was rated “A-high” by personnel in the Atlanta office for work done while on assignment in Atlanta. That rating wás apparently lowered to “A-mid” by a Fourth Level male manager several links up the chain of command from Mrs. Springs. The Fourth Level manager made the change without having observed Mrs. Springs’ performance in her job and without discussing it, either before or after the fact, with Mrs. Springs (Transcript, pp. 127-128). The practice of not discussing an appraisal with an employee was not confined to Mrs. Springs. Plaintiff Marguerite Stastny testified that, with the exception of one appraisal in 1975, she had never been shown an appraisal by her supervisors (all men) or had the appraisal discussed or explained. She saw appraisals for 1973, 1974 and 1976 for the first time in her attorney’s office after commencement of this action. Significantly, in the one appraisal discussed with her she was rated promotable. On the others she was rated non-promotable. Plaintiff Lillie Andrews also testified that a critical appraisal was placed in her file without notice to her (Transcript, pp. 471-472). Under such a system and such treatment an employee is defenseless against unfounded and arbitrary evaluations, for whatever reason, by a supervisor. Based upon the foregoing the Court finds as a fact that the appraisal system upon which promotions and pay increases are based operates to discriminate against women because of their sex, by downgrading them and by allowing for selective non-appraisal. Further, until at least September, 1972, Second Level women were excluded from one facet of the system altogether, the annual appraisal conference, as a matter of policy. Because the system is largely subjective and open to abuse, it is not and has not been for periods relevant to this action a bona fide merit system under 42 U.S.C. § 2000e-2(h). VII. Promotional and Pay Differences and Average Educational Levels: On the whole male managers average higher education levels than female managers at Southern Bell. However, this does not justify the disparate treatment in pay and promotion because no correlation has been shown between educational level and job performance. Defendant produced testimony to show that in 1976 men received proportionately more of the highest promot-ability ratings on annual appraisals (Defendant’s Exhibits 29-B and 29-C). The suggested inference is that because men are better educated, this shows that better educated people perform better. As noted previously, because of the built-in subjectivity, the appraisal system is not a reliable measure of performance. Furthermore, the 1976 data also shows that males received proportionately more of non-promotable ratings given in that year (Defendant’s Exhibits 29-B and 29-C). If additional education affected the outcome here, it is difficult to tell in which direction. The preponderance of evidence in fact suggests that educational level has little effect on one’s performance as a manager at Southern Bell. Numerous men at upper level positions, where there are virtually no women, have no more than a high school education [15.4% for Levels 3 and 4 as of December 31, 1975; as of the same date, 33.1% of the men at Levels 3 and 4 had only a junior college degree or had started but not completed college (Plaintiffs’ Exhibit No. 1, Table 27, p. 86)]. At Level 2, where there are comparatively very few females (82 of 526 as of March 31, 1976, Plaintiffs’ Exhibit 1-Y, p. 63), 40.3% of the men had only a high school diploma and 74.7% did not have a college degree. Apparently a large number of men, without benefit of a college degree, are successfully performing Second, Third and Fourth Level jobs at Southern Bell. It is stipulated that the defendant has never as a company considered the lack of a college education to per se be a bar to promotion into any level of management (Plaintiffs’ Exhibit No. 1, p. 92). While the Court views the regression analysis conducted by both experts as limited in value for the reasons previously stated, the results of defendant’s regressions support the conclusion that education differences (“years of schooling”) explain little of the discrepancy between treatment of men and women. (See Plaintiffs’ Exhibits 170-175, which show the percentage of difference between predicted male and female salaries accounted for by each variable suggested. The percentage accounted for by years of schooling ranges from 2.1% in the 1975 to 6.8% in the 1970 table.) By its failure to show that better education means better performance, defendant has failed to show any “business necessity” for any credit, real or imagined, given to education in the pay/promotion process. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). “If an employment practice which operates to exclude Negroes [females] cannot be shown to be related to job performance, the practice is prohibited.” Griggs, at 431, 91 S.Ct. at 853. Pushing the education defense further, defendant argues that college graduate men may be more qualified than college graduate women for promotion and higher pay at Southern Bell because male degrees are concentrated in areas of engineering and business (71.4%) while female degrees are concentrated in areas of liberal arts, mathematics and physical sciences (69.8%) (Defendant’s Exhibit 27-B). The Griggs maxim applies here as well. There has been no showing that business majors or engineers make better managers at Southern Bell than physics, math or English majors. Further, there has been no showing that area of study is a consideration in granting a pay raise or promotion. No management job at Southern Bell requires any particular level of formal education or any training not available within the company (except obviously the Legal Department, where a law degree is required to be a lawyer). VIII. Consent Decrees: Prior to the 1972 amendments to Title VII the EEOC had no enforcement powers. Commission strategy at that time was to “piggyback” (Tr. 993) on the enforcement powers of other Federal agencies by inducing them to pass regulations requiring that the industries they regulated obey Title VII. The Federal Communications Commission passed such regulations. In 1970, 7% of all charges pending with the EEOC involved one of the Bell system companies. The Commission then decided to intervene in Bell’s pending rate case before the FCC. The intervention was allowed and a separate