Full opinion text
OPINION FEIKENS, Chief Judge. Introduction On December 4,1972, a group of employees at the Automobile Club of Michigan filed a class action against their employer charging discrimination on the basis of race and sex in matters related to their employment. The Honorable Charles W. Joiner, to whom the case was assigned, entered an Order on July 30, 1974, denying Plaintiffs’ motion for class certification on the ground that a serious possibility of conflict within the purported plaintiff class existed with respect to the claims of the female and black employees respectively. In particular, Judge Joiner noted the danger of competing and potentially contradictory objectives of the race and sex claimants which might arise during the course of trial or in the formulation of any relief to which the class might be entitled. As a result of that order, female employees of the Automobile Club filed a separate action on November 17, 1975, alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. That case was assigned to me by random draw. Named as Defendants in this suit are the Automobile Club of Michigan, the Detroit Inter-Insurance Exchange, the Motor Land Insurance Company, and the Group Insurance Company of Michigan. The Club provides its members with various insurance and travel-related services. The Exchange is a reciprocal insurance exchange operating in this State which provides insurance to Club members and owns the property on which the Club headquarters is located. Both Motor Land Insurance Company and Group Insurance Company are wholly-owned by the Exchange and also provide insurance coverage to Club members. Defendants have their corporate headquarters in Dearborn and also operate many branch offices throughout the State. Defendants share many of the same employees, management staff, and office facilities, including a single Personnel Department, which generally does the hiring for all employees below the rank of assistant manager. The Personnel Department is responsible for the completion and filing of various governmental reports concerning employment patterns. The named Plaintiffs bringing this action are Carol Greenspan, Carolyn Madden Hall, Ora Lee Jasper, and Altha Brown, who are suing on behalf of themselves and all other women similarly situated. In an opinion of this Court entered on December 28, 1976, Plaintiff Jasper was designated the representative of women currently employed at the Club, Plaintiff Greenspan the representative of former employees, and Plaintiff Brown the representative of women who might be or might have been employed by the Club (i. e., applicants for employment). At the time of the opinion, Plaintiff Hall was a current employee of the Club, but has since terminated her employment and may therefore have interests similar to former employees. I do not believe that her status as a current or former employee is material to the resolution of the issues in this case, particularly as no segment of the class is left unrepresented by her termination. The class was finally defined on May 19, 1977, as being “all women employed by Defendants in Michigan who claim to have suffered discrimination based on sex on or subsequent to June 10, 1974;” “all women formerly employed by Defendants in Michigan who claim to have suffered discrimination based on sex on or subsequent to January 8,1974;” and “all women who might be or might have been employed by Defendants in Michigan who claim to have suffered discrimination based on sex on or subsequent to January 8, 1974.” Plaintiffs challenge the entire spectrum of employment practices at the Club which relate to hire, promotion, compensation, and other conditions of employment affecting Defendants’ female employees. Plaintiffs allege that a majority of Defendants’ employees are women, that the vast majority of these women are, in turn, relegated to low-paying clerical positions within the Company, and that nearly all of the supervisory positions occupied by women involve supervision of clerical employees. In addition, Plaintiffs allege that women are greatly underrepresented in the higher-paying professional, technical, and sales (hereinafter “PTS”) positions, which, they claim, are the traditional routes of promotion to positions of greater responsibility and higher compensation in the company. Plaintiffs claim that this situation is the result of certain policies and practices, among them: the use of various pre-employment techniques, including inadequate or non-existent posting of job openings, which cause females to be routed or assigned to positions traditionally occupied by women and to be systematically excluded from consideration for the higher-paying jobs at the Club; hiring and promotion practices which rely heavily on the subjective evaluations of primarily male supervisors and department heads, and which re-suit in the denial of equal employment and promotional opportunities for women; compensation policies, which either pay male employees a higher wage than female employees doing the same job or which cause women to receive lower rates of pay for jobs which, though similar in function and performance to those held by men, have different job titles or descriptions; and a maternity policy which requires the termination of pregnant employees and the loss of employment benefits and opportunities upon rehire. Plaintiffs seek declaratory and injunctive relief if this Court finds that Defendants’ various policies and practices violate Title VII. Plaintiffs request a court-ordered affirmative action plan designed to increase the representation of women in those areas of the Company in which they presently appear in lesser proportion than their overall numbers might suggest. Finally, Plaintiffs seek back pay and other payments to compensate them for the loss of wages and employment benefits incurred as a result of Defendants’ illegal discrimination against them. At the close of their case, Plaintiffs sought to amend their complaint to reinstate a claim for mental distress caused by Defendants’ alleged harassment as a result of the women’s efforts to improve their conditions of employment. The claim had originally been made under Title VII, but was withdrawn by counsel following the holding in Schroeder v. Dayton-Hudson Corporation, 456 F.Supp. 652 (E.D.Mich. 1978), that such claims could not be raised under that statute. Nonetheless, in Freeman v. Kelvinator, Inc., 469 F.Supp. 999 (E.D.Mich.1979), claims for mental distress were held to be properly brought under the Michigan Elliott-Larsen Civil Rights Act, M.C.L.A. § 37.2101 et seq., and Plaintiffs base their motion on that authority. As Defendants point out, however, the motion was not timely raised in view of the fact that Plaintiffs had completed their direct case and Defendants were prepared to go forward with their evidence iii response. In addition, Defendants are ready to assert their right to a jury trial on this damage issue, which conceivably would have entailed rehearing portions of Plaintiffs’ case. Although Plaintiffs argue that no disruption of the trial needed to occur and that evidence relating to mental distress even now can be presented in separate proceedings, I agree with Defendants that the motion must be denied on the ground of untimeliness. Defendants deny Plaintiffs’ charges generally in their Answer, and respond further that certain of Plaintiffs’ claims have been previously rejected by the Equal Employment Opportunity Commission or other agencies, and that others are barred or limited by applicable law. Over the course of the trial, Defendants took the position that the representation of women in clerical positions at the Club was not inconsistent with the representation of women across the State of Michigan in such jobs, and that the large amount of paperwork associated with the insurance industry virtually guarantees a heavily clerical work force dominated by women. As to the ¡presence of women in the higher-paying jobs (including supervisory and management personnel), Defendants argue that women are represented in proportions similar to those which appear in the outside work force and that, in fact, women are being hired at rates equal to or greater than their rate of application to these jobs. Defendants contend, finally, that Plaintiffs have produced no evidence that the Club does discriminate against its female employees in the matters of hire, promotion, or compensation, or in any of the other ways suggested in the Complaint. Trial was commenced on May 15, 1979. Over the course of 46 days of testimony, the parties presented over 70 witnesses. Among them were the named Plaintiffs (except Ora Lee Jasper), other class members and employees of Defendants, various supervisory and management personnel from several departments within the Club, and representatives from the Personnel Department. In addition, Plaintiffs presented the expert testimony of Victor Meyer, instructor and computer systems analyst for Marygrove College, Detroit, Michigan, and the author or programmer of a number of the computer programs involved in the Plaintiffs’ statistical case; Dr. John Dwyer, Associate Professor of Mathematics at the University of Detroit, who was responsible for analysis of applicant and new hire data; and Dr. Mark Killingsworth, Assistant Professor of Economics, Rutgers College, New Brunswick, Maryland, and a specialist in labor economics, who performed both conventional statistical analysis of male and female distribution at the Club and a regression analysis of salaries and job grades of some 2,000 randomly selected Club employees. Defendants similarly offered the testimony of various employees and management personnel in response to the cases presented by the individual Plaintiffs. By way of rebuttal, Defendants also introduced the work of Dr. J. Wanzer Drane, Professor of Mathematical Sciences at Southern Methodist University, and senior statistician for Criterion, Inc., a consulting firm whose work includes analyses of the employment practices of business and other organizations concerned with implementing or defending their affirmative action employment programs. In addition, Dr. Wayne E. Ruhter, Assistant Professor of Economics and Political Economy at the University of Texas at Dallas, and also a consultant with Criterion, Inc., testified briefly in conjunction with Dr. Drane regarding some aspects of the statistical techniques used by his colleague. The method of proof in a discrimination case brought under Title VII, described in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), requires Plaintiffs to establish a prima facie case of discrimination before the burden shifts to Defendants to rebut Plaintiffs’ evidence or otherwise to justify its treatment of Plaintiffs. If that burden is met, Plaintiffs, can succeed only by showing that the proffered justification was a pretext for unlawful discrimination. Id. While McDonnell Douglas involved a claim of disparate treatment, the general framework has been adopted for claims of disparate impact (including class actions). See, Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); see also, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). If Plaintiffs are successful in meeting the burden of showing that a particular policy or practice of Defendants has a disparate impact on Plaintiffs’ protected group, Defendants must establish that such a practice or policy is justified by its close relation to job requirements, business needs, or some other legal grounds warranting its retention. As in McDonnell Douglas, Plaintiffs may ultimately prevail by proving that less harmful alternatives exist. The claims raised by Plaintiffs, and Defendants’ responses, are analyzed in this opinion according to the standards expressed in McDonnell Douglas and subsequent cases. By way of background, however, section I contains a breakdown of Defendants’ work force into several job categories which , aid in establishing the number and distribution of women in the Company. Then, in section II, the class of present employees is examined in two parts: first, all statistical evidence relevant to current employees is reviewed; second, lay testimony in support of Plaintiffs’ claims of disparate impact and disparate treatment is evaluated in light of the statistical presentation. Section III is devoted to the claims raised on behalf of the applicant class; in section IV, former employees are discussed. In the final section of the opinion, the regression analyses performed by both parties are described and compared briefly. I. The Work Force Between 1974 and 1978, that size of the work force at the Club varied from 3,700 to approximately 4,000 employees. Data regarding the number of employees, as well as both their personal and work histories, is found on certain computer tapes produced by the Company at the end of each calendar year. Annual reports filed by the Club at the request of the Equal Employment Opportunity Commission provide similar data on the make-up of the work force according to job categories developed by the Commission. From both these sources, the following information may be derived. First, analyzed in accordance with Equal Employment Opportunity Commission directives, the Company, at year-end 1974, employed 3,768 individuals in the following categories. 1974 Work Force by EEOC Categories All Employees Women (%) Officials and Managers 153 0 (0.0%) Professionals 655 69 (10.5%) All Employees Women ( Technicians 31 0 (0.0%) Sales Workers 580 6 (1.0%) Office and Clerical 2,261 2,209 (97.7%) Operations 27 0 (0.0%) Service Workers 61 _38 (62.3%) 3,768 2,322 (61.6%) Similar figures for 1978 indicate the major areas of change at the Club within the last five years. 1978 Work Force by EEOC Categories All Employees Women (%) Officials and Managers 568 284 (50.0%) Professionals 702 234 (33.3%) Technicians 29 7 (4.1%) Sales Workers 658 45 (6.8%) Office and Clerical 1,969 1,921 (97.6%) Operations . 19 0 (0.0%) Service Workers 46 22 (47.8%) 3,991 2,513 (63.0%) In 1975, approximately 100 office supervisors, formerly classified as Clerical employees, were reclassified as Professionals by the Company. Subsequently, in 1978, some number of office and technical supervisors were reclassified as Officials and Managers. The effect of these actions, which were accomplished in apparent compliance with EEOC regulations, has been in part to cause a dramatic increase in the percentage of female employees classified as Officials and Managers. By comparison, information taken directly from the Company’s year-end tapes and broken down by Company-assigned job sequence numbers offers a slightly different view of female representation at the Club. 1974 Work Force by Job Sequence Numbers All Employees Women (%) Executive/Administrative (0001-0073; 1200-1230) 173 3 (1.7%) Commissioned Sales (no regular job sequence number) 588 10 (1.7%) Technical Supervisor (0100-0550) 118 3 (2.5%) Clerical Supervisor (1000-1110) 352 343 (97.4%) Professional-Technical (2000-4999)' 600 113 (18.8%) Clerical (5000-5999) 1,682 1,669 (99.2%) Non-Clerical (6000 +) 250 174 (69.6%) 3,763 2,315 (61.5%) 1978 Work Force by Job Sequence Numbers All Employees Women (%) Executive/Administrative (0001-0073; 1200-1230) 213 13 (6.0%) Commissioned Sales (no regular job sequence number) 529 12 (2.3%) Technical Supervisor (0100-0550) 137 16 (11.7%) Clerical Supervisor (1000-1110) 392 381 (97.2%) Professional-Technical (2000-4999) 799 276 (34.5%) Clerical (5000-5999) 1,734 1,709 (98.6%) Non-Clerical (6000 +) 143 75 (52.9%) 3,947 2,587 (65.5%) Plaintiffs produced a third analysis of the 1978 work force in terms of the broad occupational categories used by the Bureau of the Census. [Plaintiffs’ Exhibit 415.] These totals tend to fall between the limits set by the EEOC reports and the Job Sequence Number charts, and thus do not offer much additional assistance at this point, although these figures become more important in subsequent comparisons of Defendants’ employee distribution to the outside labor market. On the whole, I find the classifications based on job sequence numbers more useful than those suggested by the EEOC. The fact that they are Company-generated in a way that the Commission’s categories are not carries great weight, as does their apparently greater precision. These figures reflect both the actual positions at the Club and the Club’s own view as to which employees hold them. Presumably, a greater homogeneity exists within these categories than may be found in the EEOC classifications to which the Club is obliged by law to adopt its own employment scheme as best it can. Some general conclusions can be drawn from these figures. First, women have at all times relevant to this suit constituted a clear majority and at no time comprised less than 61.5% of the Club’s work force. Second, it is apparent that women in non-supervisory roles are more likely to work in clerical and service worker positions than elsewhere, and that as supervisors they are much more likely to occupy positions of responsibility over clerical employees than others. In effect, women who come to work for Defendants are likely to become clerical employees and to be supervised by other women. As of 1978, for example, nearly 81% of the women employed by Defendants were classified according to their job sequence numbers as either clericals or clerical supervisors, compared to some 87% of Defendants’ female work force in those positions in 1974. Even using the relatively understated figures found in the EEOC reports, and limiting the analysis to only those women classified as clerical employees (due to the difficulty of extracting clerical supervisors from the Professionals category), it appears that in 1974 approximately 95% of the women employed by the Club held clerical positions, and in 1978 over 76% were similarly classified. Third, in the more highly-paid non-clerical positions, male employees easily predominate in proportions much greater than their actual numbers might otherwise suggest. For example, at year-end 1978, males constituted approximately 35% of the Defendants’ work force while occupying over 81% of the jobs classified as Professional-Technical, Technical Supervisor, Commissioned Sales, and Executive/Administrative; the same analysis for 1974 indicates that over 91% of those jobs were held by males who otherwise made up 38-5% of the employee population. Similar results can be obtained from the EEOC data: In 1974, male employees comprised 38.4% of the work force and held over 94% of the higher positions; by 1978, males were still 37% of the force, but were then occupying 71% of these positions. The figures suggest that the concentration of women at the lower, primarily clerical levels has resulted inevitably in their reduced, though slowly increasing, appearance at the higher levels in the work force. The significance of these generalizations, however, cannot be determined until comparisons are made with the representation of women in similar positions outside the Club. II. The Class of Present Employees A. In order to draw conclusions from the distribution of women at the Club from 1974 to date, comparisons must be made between the Club and a suitable labor market. The choice of a relevant labor market involves at least three elements all of which are disputed here — its temporal boundaries, the geographical boundaries of the market, and the size of the market itself with which the employer is to be compared. See, Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). The time span over which the market is measured is determined by the limits placed on the Plaintiff classes by the certification order and by the limits inherent in the available data. In this case, the relevant time period is the years 1974-1978; the limits of the data are discussed below. The geographical limits of the labor market generally must bear a reasonable relation to the scope of the employer’s business and the area from which it draws applications and employees. Hazelwood, supra, at 310-312, 97 S.Ct. at 2743; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1371 (5th Cir. 1974). Defendants operate a statewide insurance company with much of their activity occurring in various branch offices around the State. Given the fact, too, that Defendants recruit and receive applications from all over Michigan, the relevant geographic limits would appear to be the state boundaries. The issue is whether Plaintiffs are justified in seeking a broader, national market for comparison notwithstanding these facts. Resolution of this question, however, depends on whether general or specific population data is more appropriate in this case. Where the job skills in question are the kind that “many persons possess or can fairly readily acquire,” general population data has proved acceptable. Hazelwood, supra, at 308 n.13, 97 S.Ct. at 2742 n.13. See also, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1972). On the other hand, “[wjhen special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.” Hazelwood, supra, at 308 n.13, 97 S.Ct. at 2742 n.13. Where the existence of necessary qualifications is not readily apparent, the burden is on Defendants, I believe, to demonstrate that “the positions in fact do require special qualifications not possessed or readily acquired by the general population.” Equal Employment Opportunity Commission v. Radiator Specialty Co., 610 F.2d 178, 185 (4th Cir. 1979); Kaplan v. International Alliance of Theatrical and Stage Employees, 525 F.2d 1354, 1358 n.1 (9th Cir. 1975); United States v. Hayes International Corporation, 456 F.2d 112, 120 (5th Cir. 1972). Compare, Mayor v. Educational Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974). This dispute over the existence of special qualifications ultimately compels the adoption of the broad or detailed occupational categories developed by the Bureau of the Census. Plaintiffs advocate the use of the broad occupational categories and suggest the Current Population Survey of 1977 as an adequate and reasonably up-to-date basis for comparing the distribution of women at the Club with their distribution nationally. Defendants, in contrast, rely on the detailed breakdown of occupations in both the United States and Michigan found only in the 1970 census data. Defendants argue that the broader categories are misleading, principally because each category includes a wide range of occupations that are not found at the Club, and that their inclusion for purposes of comparison seriously distorts the relevant aspects of the female employment picture in Michigan to which Defendants wish to be compared. In addition, Defendants argue that because the Professional, Technical, and Sales positions in question (usually referred to as PTS positions) require job skills not found in the general population, a true reflection of female availability can best be obtained by reference to the detailed code data. Female availability, as used by Defendants, is the percentage of women in the outside work force who, they believe, are qualified to perform the various jobs existing at the Club, and thus can be considered available for comparison with the percentage of women in these jobs at the Club. These women are qualified, Defendants argue, because they actually held these jobs in 1970 according to the detailed Michigan census data. I disagree with the use of the data recommended by Defendants on several grounds. First, as a matter of judgment, employment information which is nearly ten years old may not adequately reflect the current distribution of women in the work force, particularly in view of the profound changes in attitudes and practices which have occurred in society and the economy in the past decade. Data such as this must not be used blindly or in a vacuum; the social context from which these figures are drawn is a crucial factor in determining their relevance to the questions raised in this suit. Furthermore, my conclusion to measure Defendants’ conduct by a national rather than state standard finds support when I consider that the advantages of the 1977 Population Survey clearly outweigh the fact that such current figures are not available on a state-by-state basis. Second, while population comparisons are often necessary and nearly always helpful in determining disparate impact, the results of such analyses should be viewed with caution where the comparisons are being made not to the representation of minorities or women in the general population, but to their representation in the work force. Unlike general population data, employment distribution figures may well reflect social patterns of discrimination against members of protected groups. Little can be achieved, I believe, by comparing the effects of an employer’s current practices with data reflecting the employment practices of a decade ago when the practices now complained of were largely unchallenged. In addition, as Plaintiffs point out, Defendants’ suggestion that only 1970 Michigan population data from the narrowest occupational categories relevant to insurance operations be used for these comparisons raises an interesting question. Given Defendants’ large widespread work force, it is not inconceivable that significant portions of the data in these detailed categories may reflect Defendants’ own employee distribution pattern in 1970. Thus, the use of these figures here may well result in comparing the Company in 1979 to the Company as it existed in 1970; in such a case, results generally favorable to the Company would not be unexpected. Finally, I disagree with Defendants’ assertion that the PTS positions in actual dispute require the kind of skills which cannot be found in the general population. Hazelwood, supra, 431 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13. Recourse to the 1970 detailed data is unnecessarily misleading to the extent that this approach implies that the best test of current female availability for these positions is the number of Michigan women working in these jobs in 1970. I reach this conclusion for two reasons. First, testimony of Company personnel established the absence of rigorous prerequisites for many of the PTS positions and the widespread use of training programs for new hires into entry-level PTS openings. Second, where the actual qualifications for the positions sought are challenged, as some of them are, reliance on detailed job data such as Defendants offer presumes the validity of the very qualifications under attack. The census job categories are selected by Defendants in an effort to replicate existing job categories at the Club; by doing so, Defendants are in effect applying their job qualifications to the general population and selecting that small portion which Defendants view as the most suitable. This same process, when applied to female applicants, is attacked by Plaintiffs for its discriminatory effect on women. I do not believe that this allegedly discriminatory process can be adopted on the preliminary basis urged here by Defendants without seriously prejudicing the outcome of this examination. For these reasons, I find that none of the positions in question here requires any skills that cannot be found in, or easily acquired by, the population in general and female workers in particular, and that the use of broad occupational categories is required in this setting. As a glance at the work force comparisons will show [Plaintiffs’ Exhibit 415, reproduced infra], the practical effect of the determination to use the newer data is small inasmuch as Defendants’ 1977 female distribution figures with respect to PTS-comparable occupations are well below both national and state figures from 1970 and 1977. CHART 22 SEX COMPOSITION OF EMPLOYMENT BY MAJOR OCCUPATIONAL CATEGORY, US, MICHIGAN AND AAA, 1970 and 1977 PREPARED BY:' Dr. Killingsorth SOURCE: Census data, year-end tapes METHOD: Direct extraction from governmental reports. Note: This chart was identified as Table 2 in Plaintiffs’ January 4,1979 Answers to Interrogatories. Moreover, Defendants’ 1977 female clerical representation stands a good deal higher than comparable figures on the state or national level in either year. These comparisons appear to support the inferences drawn from the earlier examination of the Company on its own terms with respect to the distribution of its female employees. But the impact of the newer data is felt most obviously with respect to Defendants’ extensive reliance on the detailed census codes for a wide variety of comparisons. For example, by comparing the number of women employed as computer programmers in Michigan in 1970 with the total number of programmers in the State at that time, Defendants arrive at a percentage of “female availability.” [Defendants’ Exhibit 852.] That percentage is then used as the standard to which the current percentage of female programmers at the Company is compared. Elsewhere, the figures for a variety of related detailed occupations are combined and a weighted average of “female availability” produced for comparisons within broader employment categories such as those adopted by the EEOC. [Defendants’ Exhibit 852.] On the basis of these kinds of comparisons, Defendants argue that with some exceptions (notably Sales) they employ (or hire) women in statistical proportion to their presence in the Michigan labor market. Rather than repeat my reasons for disapproving this approach, I note only that Defendants’ suggested analysis has the inevitable effect of dividing the Company into a great number of discrete units to be examined and judged separately. While under some circumstances this method may be helpful, I believe that, where the Company’s entire employment structure is being challenged, continuous reference to the overall picture is required in order to place this more specific data in proper context. I find, when comparing Defendants’ employment and classification of women to more recent national figures, that women are systematically underrepresented in the PTS positions and somewhat overrepresented in the clerical field. In addition to the population comparisons, Plaintiffs produced several other studies of the Company, which are intended to show the contrast between the actual and expected distribution of women by salary grade at year-end 1978. [Plaintiffs’ Exhibits 409, 410.] “Expected distribution” in this respect reflects Plaintiffs’ conclusions about the salary grade which female employees would have achieved at year-end 1978 if they had been treated as male employees who shared their salary grade in 1976. This relatively simple analysis is based on the assumption that men and women in the same pay grade in 1976 should have essentially the same employment experience over the next two years on average and thus should be proportionately distributed throughout the salary range. As Plaintiffs’ own expert noted [Tr. 2782-84], the analysis has several flaws, including the lack of any role for the relevant performance characteristics of employees and the fact that placement in salary grade in 1976 is as much a result of Company policies as the process under examination. Nonetheless, the charts do indicate that as a group female employees are not being assigned to salary grades in the same way as male employees, and that as a group fewer women occupied the higher salary grades in 1978 than the distribution of male employees sharing the same grades in 1976 would indicate. A similar analysis was performed with reference to the Club’s various occupations, categorized by job sequence number, relating to the positions held by Defendants’ employees in 1973, as well as employees hired after 1973, and calculating the expected distribution of females, assuming equal treatment as defined for these purposes. [Plaintiffs’Exhibit 412; Tr. 2799-2818.] In general, the chart demonstrates that equal treatment would have resulted in greatly increased female representation in the Technical Supervisor, Professional-Technical, Commissioned and Salaried Sales, and Executive/Administrative positions, and reduced representation in Clerical Supervisor and other clerical positions. Again, the disabilities of the previous studies are present here as well. Finally, Plaintiffs presented two studies of wages based on data in the Company’s year-end tapes — one of which revealed that since 1974, the mean weekly salary of males has exceeded that of females by $120-$130, and another which calculated the earnings “advantage” to male employees compared to female employees of comparable age and tenure at the Company. Based on salary data from 1976 to 1978, it appears that the percentage weekly advantage to males in each of the three years was at least 60%, or approximately $210-$295 per week, when all of the employees in each of those years is compared. As with the other statistical evidence presented, I find these results indicative of a continuing pattern of treatment, and while these results must be read in context with the parties’ other evidence on these points, the implication of discrimination arising from the overall Company employment statistics are generally borne out by these more specific analyses of various aspects of Company practice. B. Plaintiffs allege that a wide variety of Company policies have had, and continue to have, a disparate impact on the employment opportunities of its “female employees. In particular, Plaintiffs cite the Defendants’ failure to post job openings adequately pri- or to 1978, and otherwise to inform employees adequately of openings in various departments; the use of non-validated job requirements and descriptions; Defendants’ acquiescence in the exercise of hiring discretion by department managers who are, for the most part, male; and the use of quotas to reduce the potential representation of women in certain PTS positions once applications from female employees exceeded certain levels. 1. Job Descriptions and Evaluations During the course of testimony, representatives of the Club stated that in 1973 and 1974 the first steps were taken to evaluate all the jobs at the Company in an attempt to create a consistent schedule of compensation. [Tr. 145.] After a period of transition lasting until 1976, the evaluations were completed, and jobs were redefined and then assigned to a scale of salary grades. The process of describing and evaluating various positions at the Club does not appear to have been vigorous. In most cases (at least until 1978), the basic job description was formulated by the department manager (or his delegate) under whose supervision the job was then performed. [Tr. 155-157, 295, 342.] The description was then forwarded to the Personnel Department where a wage and salary analyst would review the description, classify it according to the duties and functions described, and then submit the description to a review committee for approval of the proposed grade assignment. [Tr. 295-296.] Until the process was changed in 1978, the analyst did not verify the description by making an on-site inspection of the employee who actually performed the job. [Tr. 341; see, e. g., Tr. 648-650.] Testimony was given to the effect that the former procedure was flawed insofar as it created the possibility of inconsistent descriptions, over- or under-inflation of job duties or requirements, and was associated with a lack of employee awareness of the evaluation procedure [Tr. 342], notwithstanding the fact that the original job description should have been signed by the employee. [Tr. 295.] Finally, the evaluation criteria actually employed by Defendants were not developed by professional consultants, but rather adapted from a commercially available method of job analysis from which Defendants borrowed what they believed to be pertinent to their needs. [Tr. 289.] In addition, the Employment Administrator of the Personnel Department stated that, with the possible exception of a few secretarial tests given to clerical applicants [Tr. 410], no other test or job requirement for any position at the Club has ever been validated in accordance with federal or other applicable guidelines. [Tr. 410, 441-445; see also, Plaintiffs’ Exhibit 23, p. 3.] See, e. g., 20 C.F.R. § 1607 (Uniform Guidelines on Employee Selection Procedures) (1978). In fact, the closest that Defendants appear to have come to an examination of job requirements are some informal studies conducted in an effort to determine work experience equivalents to educational requirements. [Tr. 411.] Other requirements, such as prior experience in particular jobs at the Club, seem merely to have developed over time because they appeared to be desirable [Tr. 3723] or sound personnel practice. [Tr. 410-411, 441-445, 3450.] The prior experience requirements, in particular, have a direct effect on the success of women applicants for certain positions. Testimony established that one of the job requirements for assistant branch-manager, for instance, was prior experience in claims, which, until recently, had been a predominantly male field. As a result, no women were eligible for the assistant manager’s position because of their historic inability to obtain the requisite claims background. [Tr. 453^454.] In 1978, however, the first woman was promoted to an assistant branch manager’s job soon after the Company centralized the claims work in some regions, thus creating a few branches in which claims work was no longer done. [Tr. *1127-30.] Although Defendants assert that claims experience prior to 1978 was required because the assistant manager was “responsible” for all claims work, the Company’s Employment Administrator acknowledged that the requirement had never been validated. [Tr. 480.] Defendants did not explain why prior experience in another major branch activity — clerical and office supervision — in which women traditionally had a solid background was not considered a qualification for the assistant manager’s position. In short, Plaintiffs claim that the jobs they now seek continue to be held beyond their grasp because of prior experience requirements — that is, prior experience in related PTS positions from which they have traditionally been excluded. The obligation of the employer stemming from Title VII is well-established. In holding Title 'VII violated by the use of a high school diploma requirement which disproportionately excluded blacks, the United States Supreme Court stated: Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory practices. Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. Griggs v. Duke Power Co., 401 U.S. 424, 430, 432, 91 S.Ct. 849, 853, 854, 28 L.Ed.2d 158 (1971) (emphasis in the original). Further explanation of this burden is found in Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1976), where the Court stated that the employer’s obligation to show the job-relatedness of the disputed requirement would arise only after the plaintiff had shown that imposition of the requirement had a disparate impact on the protected group. Id., at 425, 95 S.Ct. at 2375. The employer’s successful presentation would then require the plaintiff to demonstrate an equally efficient, less offensive alternative — i. e., demonstrate that the disputed requirement was a pretext for discrimination — in order to prevail. Id. Finally, in Washington v. Davis, 426 U.S. 229, 246, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976), the Court noted: Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be ‘validated’ in terms of job performance in any one of several ways . . . . (Emphasis added.) Plaintiffs have introduced statistical evidence relating to the underrepresentation of women in PTS positions and supplemented that evidence with the specific testimony of various employees who claim to have been adversely affected by experience requirements and other, non-validated job qualifications. In addition, Plaintiffs established the existence of various Company policies and practices with respect to job evaluations and descriptions, which are a crucial link in maintaining an equitable compensation schedule and providing an employee with a guide to promotion and greater achievement within the Club. I find that this evidence is sufficient at least to shift the burden to Defendants to explain the “manifest relationship” each job requirement bears to the positions discussed in testimony. See, Patterson v. American Tobacco Co., 535 F.2d 257, 263 (4th Cir. 1976); Watkins v. Scott Paper Co., 530 F.2d 1159, 1191-93 (5th Cir. 1976); Afro-American Patrolmen’s League v. Duck, 503 F.2d 294, 300-301 (6th Cir. 1974); Spurlock v. United Air Lines, Inc., 475 F.2d 216, 218 (10th Cir. 1972). This they did not do. Confirmation of this conclusion is found, I believe, in the absence of validated job requirements. I conclude, therefore, that the practices alleged — the lack of a systematic job description and evaluation system and the absence of validated job requirements — have a disparate impact on the Company’s female employees and have not been justified by their relation to the Company’s business needs or the efficient performance of the job. 2. Job Posting Despite a policy of filling job openings with candidates from the Company’s work force [Plaintiffs’ Exhibit 18], evidence in the record tends to show that the general posting of job openings for the benefit of all employees did not occur until 1976 and later [Defendants’ Exhibits 888, 889], although postings for' specific positions occurred in an unsystematic fashion during 1973 [Tr. 146] and possibly 1970. [Tr. 274.] While it appears that employees were often aware of openings within their departments, the lack of an official posting policy may have tended to isolate employees in certain departments from knowledge of openings in another. Prior to the spread of job postings, and for all currently non-posted job openings as well, the female applicant who became aware of the opening or simply desired to apply for another position was required to submit her resume to the Personnel Department or, in other cases, to approach her immediate supervisor with the transfer request. [Tr. 210.] Such informal procedures have been criticized, especially where the supervisor or foreman is in a position to exercise his discretion and refuse to refer the request to Personnel or the other department. See, e. g., Senter v. General Motors Corporation, 532 F.2d 511, 528-529 (6th Cir. 1976); Rowe v. General Motors Corporation, 457 F.2d 348, 359 (5th Cir. 1972). [Promotion [and] transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination . . Rowe, supra, at 359. That situation is easily exacerbated when the position desired is not one of those traditionally held by members of the applicant’s class, and her failure thus reinforces the general belief that certain jobs are simply not available to women. That phenomenon was illustrated in part by the surge of female applicants for positions in Defendants’ sales, claims, and underwriting training classes once those largely male positions were regularly posted throughout the Company and a more formal process of application and selection prevailed. [Tr. *1086-96.] Two other aspects of the posting policy are possible sources of discriminatory impact. Notwithstanding the general rule requiring the posting of job openings, department managers may request that certain positions not be posted for “good business reasons.” [Tr. 139.] The record shows that this technique has been used to preserve certain openings for specific candidates, although the record cannot adequately support a determination as to the advantage, if any, enjoyed by either male or female employees as a result. [Tr. 195-197, 3468, *1031.] And, it is still the case that openings at the assistant manager level and higher are not customarily the subject of job postings. [Tr. 147.] The practice appears most justifiable with respect to high-level management positions and most troublesome when applied to lower-ranking positions at the Club. The position of assistant manager, for example, should be reasonably accessible to a wide range of Company employees, but the failure to post these positions as a rule may easily have a negative effect on would-be applicants. In addition, the practice may tend to reinforce traditional routes to promotion and traditional views as to the appropriate occupants of those jobs, thereby continuing the exclusion of non-traditional candidates. Informal application procedures and dependence on the good will of an immediate supervisor unquestionably can discourage or prevent altogether the entrance of women into previously male jobs. Senter, supra; Rowe, supra. This consequence becomes even more important when women are thereby prevented from entering the track which leads naturally to higher level management. The Company has not, for the most part, controverted this evidence; it seems plain from the record that, while posting occurred in the early 1970’s, the system was not “sophisticated” [Tr. 154], and did not become so until the middle 1970’s when the job evaluation program was nearing completion. Under these circumstances, I find that the lack of adequate posting through 1974 and 1975 in conjunction with the employment practices described earlier contributed significantly to the impairment of Plaintiffs’ employment opportunities. 3. Reliance on Managerial Discretion The role played by the department manager in the selection process is substantial. For example, in addition to writing the actual job descriptions (which naturally determine the range of employees who are deemed eligible for the post), the manager is responsible for the final selection of the employee who will fill an opening in his department. [Tr. 278, 336, 401; cf. 190. See also, Plaintiffs’ Exhibits 18, 341.] While there is some indication that the Personnel Department attempted to monitor the manager’s selections and curb those which violated certain affirmative action expectations [Tr. 190], those occasions were rare and the independence of the department heads in this area is not seriously challenged. Further, with respect to the positions of assistant manager and above, Personnel Department input is either limited — only an occasional assistant managership is filled through the Department — or non-existent because these selections are customarily made by top management without benefit of posting or other regular Personnel Department procedures. [Tr. 108, 110, 147.] While these practices themselves have a significant effect on the advancement opportunities afforded female employees, Plaintiffs presented additional testimony concerning the unfavorable attitudes held by some of the department managers and supervisors on whose judgment the selection process is based. [See, discussion of affirmative action, section H.C., infra.] , As noted earlier, the exercise of this kind of discretion by a managerial class in which the protected group is not well represented easily permits the continued exclusion of that group’s members as a result of the manager’s or supervisor’s subjective evaluation. “Absolute discretion over employment decisions where subjective . prejudice may control (perhaps even without the executive’s knowledge) is no longer consistent with our law.” Abrams v. Johnson, 534 F.2d 1226, 1231 (6th Cir. 1976); Senter v. General Motors Corporation, supra; Rowe v. General Motors Corporation, supra; see also, Cosby v. United States, 472 F.Supp. 547, 552 (S.D.Ohio 1979). On the basis of this evidence and Plaintiffs’ statistics concerning overall representation, I find that Defendants’ policy of vesting their managers with a large degree of unsupervised discretion in the matter of personnel selection has had, in line with the other aspects of Defendants’ employment practices, an adverse impact on the women at the Club. Other than the brief references to Personnel Department “input” and a possible “veto” capability, Defendants did not present evidence that this is not in fact their practice, nor did they produce any evidence that the practice is required as a matter of business necessity. Therefore, I conclude here as well that Plaintiffs have shown the discriminatory effect of Defendants’ employment procedures. 4. Quotas Plaintiffs allege, on the basis of certain testimony and statistical data [see, Tr. *1085, *1136; Plaintiffs’ Post-Trial Brief, pp. 17-20], that following the sharp increase in internal applications by female employees for newly-posted sales, claims, and underwriting positions [Tr. *1086-96], Defendants began setting quotas for female representation in certain positions and going to the outside for male hires. In view of the equivocal nature of this evidence— Defendants, for example, claim that the percentage figures discussed were in fact minimum female recruitment goals — I am unable to draw any conclusions from the record concerning the establishment of quotas or their impact on internal female applicants. Moreover, in view of my treatment of Defendants’ other employment practices, I do not believe a resolution of this issue is necessary. 5. Conclusion After reviewing the statistical evidence presented in support of Plaintiffs’ claims of disparate impact, and considering Defendants’ response, I conclude that Defendants have maintained policies and practices which have a disparate impact on female employees. Defendants have repeatedly contended that, if such a disparity exists, it is the result of women’s failure to apply for the positions they now desire. I do not find that response compelling. “The standard of this Circuit under Title VII is that females must have equal employment opportunities, not merely that their applications, if any, be processed fairly.” Mitchell v. Mid-Continent Spring Co. of Kentucky, 583 F.2d 275, 281 (6th Cir. 1978). In any case, there is considerable statistical and testimonial evidence on this record that women did in fact apply for these positions and were notably unsuccessful in their efforts. C. Unlike the earlier emphasis on the impact of Defendants’ practices, the issues raised here — concerning wages, promotions and transfers, maternity terminations, and affirmative action — generally involve the disparate mariner in which the Company treats its female employees. Indeed, aside from some broad statistics relating to average salaries and promotional success, Plaintiffs’ evidence consists of the testimony of several female employees about their work experiences at the Company. Defendants concentrated on meeting the testimony of each witness and offering alternate versions of the events or policies in question. In contrast to the analysis of the parties’ burdens used in deciding the issue of disparate impact, the law requires that, where disparate treatment is alleged, a prima facie case must show “actions taken by the employer from which we can infer, if such actions remain unexplained, that it is. more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act.’ ” Furnco Construction Corporation v. United States, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1979), citing Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977). In particular, where Plaintiffs allege discrimination in hiring or promotion, any prima facie case must contain these elements of proof: membership in a protected group; application for an opening for which the plaintiff is qualified; rejection; and, following rejection, the employer’s continued search for applicants as qualified as the plaintiff. McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted). If Plaintiffs succeed in establishing a prima facie case, the employer is then faced with the task of “proving that he based his employment decision on a legitimate consideration, and not an illegitimate one . . .” Furnco, supra, 438 U.S., at 577, 98 S.Ct., at 2950. In other words, the employer must “‘articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Id., at 578, 98 S.Ct., at 2950 (citing McDonnell Douglas, supra, 411 U.S., at 802, 93 S.Ct., at 1824). If the employer can do so, Plaintiffs must prove that the employer’s justification is in fact a pretext for discriiftination, McDonnell Douglas, supra, at 804-805, 93 S.Ct. at 1825, or face rejection of their claim of discrimination. The following discussion deals with each of Plaintiffs’ allegations of disparate treatment. The Company’s affirmative action policy and its implementation on behalf of women, the Club’s promotion and transfer policy, its treatment of- women with respect to wages, and its maternity termination policy are examined separately in accordance with the analysis set out above. 1. Affirmative Action A profitable examination of Defendants’ treatment of its female employees cannot be made without simultaneously exploring the attitudes and behavior of the male managers and supervisors who are largely responsible for these employment decisions. In view of the fact that intent to discriminate is an issue in this portion of the case, I believe that statements by managerial personnel about the affirmative action policy are helpful as a means of establishing the context in which their actions took place. An affirmative action policy and program was adopted by the Club in 1971 following a series of meetings between Club officials and the Detroit Commission on Community Relations. [Tr. 396-397, 272-273.] The policy itself recites the Company’s aim to “recruit and lure the best qualified personnel in all our locations and to provide equal opportunity for the advancement of all employees, including training, promotion, and upgrading in a manner which will not discriminate against them because of race, col- or, creed, age, sex, or national origin.” [Plaintiffs’ Exhibit 23.] Despite the document’s reference to discrimination on account of sex, it appears from a fair reading of the testimony in this case that a number of managers and other hiring personnel understood the policy’s focus to be on the hiring and promotion of racial minorities, principally blacks. [See, Tr. 272-273, 3857, *33-*34, *226-*229, *377.] That conclusion is supported by the policy itself which addresses the issue of sex discrimination specifically only once with respect to the placing of job advertisements. [Plaintiffs’ Exhibit 23, p. 2.] Linked to this seeming lack of emphasis on the Company’s treatment of women is the ambiguous response of some of Defendants’ managerial employees to the program. In most cases, it appears, hiring personnel were not given any significant direction as to the manner in which the policy was to be implemented on behalf of women in their departments. [See, e. g., Tr. 3525, 3742-43, 3846-48, *39-*40, *379.] Even in areas of the Company in which females were practically nonexistent (computer operations, for instance), no initiatives were undertaken by the Personnel Department or departmental management to investigate such situations. For example, Gilbert Kreutzer, manager of data processing until 1975, “saw no reason to take action” concerning the absence of women in the computer room. [Tr. 3572.] On the other hand, Charles Cone, former group manager with overall supervisory responsibility for computer operations, described his objectives under the affirmative action policy as “attempting to be sure that my managers took every opportunity to look for females, and in the case of race, of black people or minorities to be hired.” [Tr. 3668.] But further positive steps concerning Carolyn Madden Hall and the computer operator position she sought, for example, were not taken because, Cone stated, he “assumed” that the alternatives had already been explored with her. [Tr. 3670-71.] In general, it appears that the affirmative action policy was not implemented on behalf of women in an active fashion — e. g., seeking out promotable females in the Company whether they had applied or not, or training interested women specifically to meet job qualifications. Rather, the policy served merely to remind managers and other hiring personnel that if a qualified female applied for the position, she must be considered fairly. [Tr. 226-229, 3848.] As Cone noted, “Before an affirmative action plan can work or the policy will work, there has to be qualified applicants ... if there is no applicant, we can’t hire.” [Tr. 3676.] But Cone’s reliance on his managers’ awareness of the affirmative action policy to bring qualified female applicants to his attention' [Tr. 3877] places the burden squarely on the shoulders of his subordinates, including James Stevenson and Glenn Fritsch in computer operations, who noted that “We really didn’t take very many [affirmative steps].” [Tr. 3857.] This ambivalence is not confined to the Data Processing Department. In discussing the manner in which he selected general supervisors for the Auto Processing Department, Manager Richard Daher stated that, although aware of the policy, affirmative action was not taken into consideration [Tr. 381], a statement which helps explain the regular rejection of female applicants for that position. The attitudes of influential Company personnel and their interpretation of their obligations under the affirmative action policy are important to the extent that they place actual management decisions affecting women in proper context. In cases where disparate treatment is alleged, evidence of management attitudes about affirmative action is helpful, I believe, in drawing inferences of discriminatory intent or motivation. I have discussed the testimony related here with that purpose in mind, and have used this material to “the extent it sheds light on the individual claims discussed below. 2. Promotions and Transfers Plaintiffs have introduced some statistical evidence concerning the rate of promotion and transfer for female employees into better-paying positions at the Company [see, e. g., Plaintiffs’ Exhibit 338 — Openings Filled by AAA Employees 1974-1978 By Promotion, Transfers or Demotion], which, they argue, establishes their basic claim that during the years relevant to this case, male employees were disproportionately successful in obtaining better positions within the Company. See, Davis v. Califano, 613 F.2d 957, 960-961 (D.C.Cir.1979). Further evidence of this pattern is found in the individual case histories described from the stand by a number of present and former female employees of