Full opinion text
WISDOM, Circuit Judge: This appeal presents issues of segregated facilities and programs that were long ago resolved in the courts of this country. The case also raises issues related to job assignment, transfer, promotion, training, recruitment, seniority, and testing; some of the answers to these questions seem clear, but others are still being formulated by legal processes. All of the issues, the settled and the unsettled, are intertwined. I. STATEMENT OF THE CASE On October 5, 1966, the named plaintiffs, Patrick James, Howard Harville and Louis Winston, black employees at Stockham’s Birmingham facilities, filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), against Stockham Valves and Fittings, Inc. (“Stock-ham” or “company”), alleging that the company maintained racially segregated facilities; discriminated against black employees in job assignment, promotion, training, and transfer; and employed discriminatory testing, education, and age requirements. The EEOC found “reasonable cause” to believe that Stockham engaged in discriminatory practices and issued the plaintiffs a “right to sue” notice in February 1970. The plaintiffs brought this class action suit on March 16, 1970, within the thirty-day statutory period, against Stockham under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiffs filed an amended charge of discrimination with the EEOC on June 8,1970, against the United Steelworkers of America, AFL-CIO (“Steelworkers”) and its Local 3036 (“Local” or “Union”), and later amended its complaint by adding the Steelworkers and the Local as defendants. The union defendants are alleged to have violated Title VII and 29 U.S.C. §§ 151 et seq. (“the duty of fair representation”). The district court referred the case to the EEOC for conciliation until June 1973 when the district court granted the plaintiffs’ motion to set aside the stay order. The court certified the class represented by the named plaintiffs under Rule 23(b)(1), F.R.Civ.P., to include all black hourly production and maintenance employees of Stockham who are currently employed and all black persons who have been so employed at Stock-ham from July 2, 1965, to the date of trial. The trial was held from February 4 through February 22, 1974. The district court rendered final judgment March 19, 1975. Relying heavily on the proposed findings of fact and conclusions of law filed by the defendant Stock-ham, the court found that, except for those segregated facilities maintained by Stock-ham and resolved in a conciliation agreement between the EEOC and Stockham two weeks before the trial, Stockham had engaged in no employment discrimination. The plaintiffs appeal from the district court’s judgment in favor of the defendants. II. FACTS A. Introduction Stockham is engaged in the manufacture of cast iron valves; malleable fittings; bronze, iron and steel valves; and other industrial valves and fittings at its facilities in Birmingham, Alabama. The product diversity and overall capacity of the company have gradually increased since Stockham was founded in 1903. By 1973 Stockham’s work force in Birmingham was comprised of more than two thousand employees. Although the district court found that “[h]istorically, approximately two-thirds of Stockham’s employees have been black”, 394 P.Supp. at 443, the record reveals that the two-thirds figure applies to production and maintenance workers during the years from 1966 to 1973. Approximately 56 percent of the entire work force at Stockham’s Birmingham facility was black during that same period, a figure larger than the percentage of blacks in the Birmingham area. The district court found that Stockham has a multi-plant complex in Birmingham that is, in effect, six plants in one, comprised of a cast iron fittings plant, a malleable iron fittings plant, a bronze valve plant, an iron valve plant, a steel valve plant, and a butterfly valve plant. That finding is overstated, for at least four of the twenty-two seniority departments at Stockham, valve machining and assembly, electrical, machine shop, and construction, extend over all or virtually all of the “plants”. The defendant unions, the Steelworkers and its Local, have been the bargaining unit representatives for the production and maintenance hourly employees at Stockham since 1944. A majority of the local union’s members have been black since World War II, and a majority of the members of the Local’s grievance committee and of its officers have been black since 1967. Plaintiffs James and Winston have been officers of the Local and participated in collective bargaining negotiations. The Steelworkers’ staff representative who has aided the Local in contract negotiations is black. All the plaintiffs were black hourly employees of Stockham. Patrick James, a high school graduate and a graduate of Booker T. Washington Business College, was hired as a laborer at Stockham in 1950 and twenty-four years later at the time of trial was still working in that capacity. Howard Harville was hired in 1946 and worked as an arbor molder in the grey foundry until 1970 when he retired on a medical disability. Louis Winston was hired as a laborer for the galvanizing department in 1964, was transferred to the electrical department as a laborer in 1965, and in 1971 became one of the first blacks enrolled in the apprenticeship program. B. Organization 1. Departments By agreement with the Local, Stockham has maintained a formal departmental seniority system since 1949. There are twenty-two seniority departments. The foundry departments produce the basic materials and molds for Stockham’s products (e. g. grey iron foundry, bronze foundry, and malleable foundry); other departments assemble, finish, and machine products (e. g. tapping room and valve machining and assembly); and another group of departments perform maintenance functions (e. g. electrical shop, machine shop, valve tool room, and construction). Since 1965 the company has regularly employed approximately two hundred office and clerical personnel. In addition, the work force includes twenty-two non-union, salaried timekeepers. As of June 1973, there were also thirty-two plant guards. The Stockham sales department in Birmingham included twenty-two employees at the time of trial. At that time a total of forty-six salesmen were employed by Stockham throughout the country. 2. Wage Determinants Within each seniority department bargaining unit jobs are divided into twelve job classes in ascending order of hourly wage from JC 2 to JC 13. These classifications reflect the increasingly complex nature of the jobs and the level of skill necessary to perform them. An employee’s job classification determines his base pay rate. Other factors such as incentive earnings and merit raises also determine actual earnings. For each job classification there are different gradations of pay for non-incentive employees. Under Stockham’s incentive system employees in highly repetitive jobs can add to their base pay if their work output reaches a sufficiently high level. A direct incentive worker’s earnings averages approximately twenty-five percent above his base pay rate. Indirect incentive workers provide support services to direct incentive workers and receive incentive pay based on the output of the incentive workers. Non-incentive workers advance from one grade of pay to the next within a job classification if they achieve a predetermined score under a formal merit rating system. Although incentive workers are not eligible for merit pay raises, all employees receive merit ratings from their foremen every six months. 3. Advancement and Transfers The merit scores received by both incentive and non-incentive employees become part of their personnel records; such ratings constitute one of the factors considered in promotion and training selection. Job vacancies have never been posted at Stockham and the company does not have a formal bidding system. In 1965 Stockham instituted a “timely application” procedure that received a formal blessing in the 1970 collective bargaining agreement. An employee may ask his supervisor to prepare an application on his behalf for any job at Stockham, whether or not a vacancy for that job exists at the time of the application. The application is considered “timely” regardless of when the vacancy occurs. In filling vacancies company officials are not restricted to those employees who have filed timely applications. In practice many promotion and training selections are made in favor of employees who have not filed such applications. Stockham administered the Wonderlic Test (discussed later in this opinion) to job applicants and employees seeking promotions and transfers from August 1965 until April 1971. To be considered for a position an employee was required to attain the Wonderlic score designated for the job. An employee seeking a job in a new department, another department from the one in which he was working, was required to obtain the higher “norm” score on the test; a worker seeking promotion within his own department was eligible for the job if he achieved the lower “minimum” score on the test, provided that he had attained “basic departmental job skills”. Under the seniority system at Stockham a senior employee is entitled to preference only when two or more competing workers possess the same degree of qualifications. An employee’s foreman decides whether he meets this test and is entitled to promotion or training opportunities. This decision is totally within the discretion of the foreman and is not subject to review. C. Employment Practices 1. Initial Job Assignments According to company officials, it has been and still is the practice at Stockham for the initial job assignments of new employees to be made by the supervisors, both superintendents and foremen, of the departments containing the vacancies. The personnel office at Stockham serves as a recruiting agency and interviews and screens job applicants. The supervisor of a department advises the personnel office of any need for additional employees, and he is informed when suitable applications are available for review. In some cases the supervisor will request a particular individual whom he knows has filed an application. In other cases the personnel office will present the supervisor with a group of applications for examination. The supervisor, either the foreman or superintendent depending on- the department, makes the hiring decision, which is totally discretionary and without written guidelines. Supervisors usually accept approximately seventy-five percent of the applicants recommended by the personnel department. 2. Seniority System As stated, a Stockham employee seeking a new job in his existing department or desiring to transfer to a position in another department may file a timely application. A supervisor fills the vacancy within his department from employees who have filed timely applications, other employees, and applicants from outside the company. If two Stockham applicants are about equal in qualifications, the collective bargaining agreement requires that the employee with the most departmental seniority be selected. If other factors are equal, departmental seniority determines not only promotions but also lay-offs and recalls. A worker who transfers between departments is a new employee for purposes of promotion and regression in the transferee department. Before June 1970 if a worker transferred departments he immediately lost all seniority in his old department. In 1970 this requirement was modified in the collective bargaining agreement. An employee was given eighteen months after transfer to the new department to decide if he wanted to return to his old department. If within that time he decided to return, he would be permitted to reenter his old department within twenty-four months of his transfer with his accumulated seniority. The 1973 collective agreement further modified these seniority provisions. If after eighteen months an employee elected to remain in the transferee department, then he would be allowed to retain his seniority in his old department solely for lay-offs, but only until he had been in the new department as long as he had been in the old. If he was laid off during this period, he would be permitted to return to his old department with his accumulated seniority. The basic features of Stockham’s seniority system have remained unchanged: (1) an employee who transfers between departments forfeits his accumulated seniority at some point; (2) an employee who transfers between departments is a new employee for all promotion and regression purposes; and (3) a departmental employee has preference over employees from other departments for promotion to all vacancies within his department. 3. Craft Training Craft positions, defined by the company as jobs with classifications from JC 10 through JC 13, are filled through on-the-job training and the apprenticeship program. More skilled tradesmen are trained through the apprenticeship program at Stockham than exclusively through on-the-job training. The program at Stockham involves four years and nine thousand hours of training in shops and apprentice classes. There are no formal lines of progression for the craft jobs. The craft skilled maintenance positions include millwright, electrician, carpenter, patternmaker, blacksmith, and machinist. The craft skilled production jobs include box floor molder, ductile melter, oven operator, crane operator, heat treater, and service mechanic. The foreman or superintendent of the department in which a craft vacancy occurs selects a candidate for the apprenticeship program. Although timely applications are filed for openings in the apprenticeship program, the supervisor may select an employee who has not filed an application. A majority of employees selected for the program between 1965 and 1971 had not filed timely applications. Apart from several specific requirements, there are no formal guidelines for the supervisor’s selection; he considers such general factors as “desire” and “aptitude” for the craft position. The foreman or superintendent recommends his candidate for the apprentice program vacancy to the apprenticeship committee. As a practical matter, the committee approves the supervisor’s selection virtually automatically. The specific requirements for the apprenticeship program have changed over the years. From August 1965 until April 1971, an applicant for the program was required to score at least 18 on the Wonderlic Test. Also, beginning in 1953 employees were required to achieve a passing score on the Bennett Mechanical Test. In addition to the testing requirements, in 1970 the company instituted a thirty-year maximum age limit, excluding time spent in military service, and a requirement that the applicant have a high school education or its equivalent for eligibility in the program. Before 1970 a grammar school education was required. Company officials have the discretion to waive either the age or the high school education requirement and have done so for a few individuals. 4. Supervisory Selection Supervisors of the seniority departments at Stockham are selected either directly from the hourly work force without specific training or after completion of one of two training programs maintained by the company. The personnel development program (“PDP”), established in 1960, is designed to train the company’s own employees. Before 1969 the program was informal and unstructured; only three classes were held between 1960 and 1969. There is an allocation of positions in the program among the departments at Stockham and final selection of participants is made by superintendents and foremen. There are no formal, written guidelines for the selection of employee participants in the PDP. The management training program (“MTP”) and its predecessor, the organizational apprentice program (“OAP”), were designed to train individuals with technical skills who could eventually assume positions in upper level management. The OAP was instituted in 1950 and replaced by the MTP in 1969. Under both programs Stockham recruited participants only from nearby predominantly white universities such as Auburn University, the University of Alabama, the University of Tennessee, Georgia Institute of Technology, and Samford University. As for employees selected directly from the hourly work force for supervisory positions, specific training is not a prerequisite. The superintendent of a division that has a supervisory vacancy may select candidates for the position after consultation with the company’s production manager. An employee may make a timely application for a supervisory position, but the overwhelming majority of the employees selected to be supervisors have never filed such an application. A majority of Stockham’s foremen were promoted from the ranks of hourly workers. A company official testified that the principal criterion for selecting a foreman is — “who is the best man for the job at the particular time?”. Other considerations are the candidate’s desire to be a foreman, work record, knowledge of the job, training, physical fitness, and common sense. Whether the candidate has a high school education is also considered although employees without high school educations have been selected as foremen and superintendents. There are no specific written standards for the selection of supervisors. 5. Testing Program In recent years at Stockham testing has come to play an increasingly large part in the selection of individuals for initial employment, training programs, promotion, and transfers. A large-scale testing program was initiated at Stockham in August 1965. Before then only the Bennett Mechanical Comprehension Test for screening apprentice program candidates was in use. In 1965 the company instituted the Wonderlic Personnel Test to screen applicants for initial hire, promotion, and transfer. In October 1966 Stockham formally adopted dual scoring standards for transfers to the three groups of job classes. As discussed above, the minimum score for intradepartmental job candidates was set at a lower level for each group of job classes than was the score for transfers between departments. The candidates for interdepartmental transfers were required to obtain the higher “norm” score while the intradepartmental job candidates were eligible for consideration if they achieved the “minimum” score, provided that they had developed “basic departmental job skills”. The “minimum” score was established by a committee composed of Stockham management personnel and the company attorney. No one in the group and no company official associated with the administration of the testing had training in the testing field. The Wonderlic Test was never validated at Stockham. In 1971, apparently as a result of the Supreme Court’s decision in Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, Stockham terminated its testing program. In early 1973, however, the company hired Victor Tabaka, a management consultant, to develop new testing procedures for implementation at Stockham. In April 1973 Tabaka submitted his testing proposal to the company. According to Tabaka he validated the use of tests for specific jobs at Stockham by means of a “concurrent criterion” study. The district court found that the Tabaka tests were put into formal use at Stockham on July 17, 1973. But the company official responsible for employee testing testified that the Tabaka test had not been used in any employee selection decision at Stockham by the time of trial. He stated that the test was administered to employees only for the purpose of accumulating data. The Tabaka test was not proposed for use with supervisory, clerical, or other salaried jobs. In addition, Tabaka concluded that the test was not applicable to eighty-six additional job titles because the associated job aptitudes were not measurable by pen and pencil tests. Job Class “Minimum” “Norm” 1-5 0 5 6-8 8 15 9-13 15 18 HL DISCRIMINATION, ADVERSE IMPACT, AND THE BUSINESS NECESSITY DOCTRINE The plaintiffs-appellants raise a broad spectrum of issues in this appeal, challenging every aspect of the district court’s finding that Stockham and the unions were not guilty of discriminatory employment practices. A. Segregated Facilities Segregation of many of Stockham’s facilities and programs continued into the 1970’s and, in some cases, until a few weeks before trial. In 1965 the system of total segregation extended to the entrance gates of the plant, employee identification numbers, pay windows, toilet facilities, the cafeteria, drinking fountains, the locker rooms, and bathhouses. In addition, the company-sponsored Young Men’s Christian Association (“YMCA”) had two boards and separate Bible classes, one board and one Bible class composed of white members and the other board and Bible class of black members. In addition, there were racially separate company baseball and bowling teams. Until 1969 all black hourly employees at Stockham had badge identification numbers ranging from 300 to 2999, while all white employees had badge numbers above 2999. Employees with numbers up to 2999, that is, the blacks, used one set of pay windows for cash payments; whereas, white employees with numbers greater than 2999 used another set of windows. In 1969 the company began to assign badge identification numbers by departments and in 1972 abandoned cash payments and the use of pay windows. The partitions in the cafeteria, toilets, and bathhouse, the racial assignment of lockers, and the racially separate YMCA boards were the subjects of a conciliation agreement between Stockham and the EEOC entered into January 21, 1974. In addition, the plaintiffs adduced testimony at trial on the existence of racially separate toilet facilities for the seven female employees in the dispensary at Stockham. The district court denied an injunction against the continued segregation of facilities at Stockham because he concluded that the issue was “effectively resolved” by the conciliation agreement. 394 F.Supp. at 499. In addition, the court found that as to the two women’s restrooms in the dispensary, the plaintiffs failed to establish racially discriminatory practices. 394 F.Supp. at 481. The plaintiffs and the amicus EEOC contend that the district court erred in its finding that the conciliation agreement resolved all issues of segregated facilities at Stockham. The evidence of the two racially separate women’s restrooms in the dispensary at Stockham supports this contention. That evidence and the showing of the company’s intransigent resistance to desegregation of plant facilities and programs convinces us that the district court over-relied on the conciliation agreement. The plaintiffs and the EEOC request that this Court grant broad injunctive relief against the continued segregation of facilities at Stockham. We reserve that issue for our discussion in subsection “V.A.” on the injunctive relief appropriate for this case. B. Job Allocations The plaintiffs-appellants and the amicus EEOC contend that the district court committed plain error in its finding that “Stockham has at no time made initial job assignments (either to departments or to specific jobs) on the basis of an employee’s race.” 394 F.Supp. at 455. We agree. The evidence in the record of pre-Act assignment of employees to departments and jobs by race at Stockham is overwhelming. The plaintiffs adduced testimony from a variety of company officials that the racial allocation of jobs was the “general rule”. E. Reeves Sims, the employee relations manager, testified: Q [Plaintiffs’ attorney] Mr. Sims, do you know of any job prior to 1965 which was manned by both black and white employees? A [Sims] I can’t remember one. Q Mr. Sims, I’m referring to your deposition which was taken on the 6th day of November, 1973, to Page 146 and 147 starting on line 17. A May I see it? Q I was going to say— MR. NEWTON: Right there. Q Now, if I may, I will read the question. The question was, “Was there a time, Mr. Sims, when blacks were initially assigned to some jobs and whites were initially assigned to other jobs as a general rule? Answer: Was there a time? Question: Yes. Answer: Yes”. A As a general rule, yes, as a general rule. But you asked me another question in a different context, Mr. Goldstein. Q And if we can continue then on 147, “And did this practice continue until 1965? Answer: Yes, sir”. Now, Mr. Sims, you say as a general rule that was true? A (Nodding head affirmatively). Q Can you think of any exceptions to that general rule? A Not offhand right now, no sir. Q Now, Mr. Sims, this general rule which we have discussed about there being black jobs and white jobs at the company, is that written down anywhere? A No sir. Q How was it enforced, or how was it put into practice? A It was in practice when I came to Stockham, and— Q Would you just say it was a custom? A Yes, sir, custom. Harry M. Burns, vice-president for corporate products, confirmed that there were no jobs at Stockham before 1965 in which both black and white employees were working. Norman E. Carlisle, superintendent of the tapping room, and an employee at Stock-ham since 1942, reiterated this fact. Terrell G. Burt, manager of technical services, admitted that prior to 1965 only the best qualified whites were considered for clerical positions at Stockham. Finally, in addition to the uncontradicted testimony of company officials, the plaintiffs introduced evidence that in June 1965 not one of the several hundred hourly jobs at Stockham was filled by both a black and a white. The plaintiffs augmented the evidence of racial staffing by jobs with statistics showing that in 1965 jobs for whole seniority departments were allocated on the basis of race. For example, eight of twenty departments were 100 percent black in 1965 and two others were more than 95 percent black while two departments were 100 percent white and two additional ones were more than 85 percent white. Further, in those departments staffed by black and white employees blacks were concentrated in jobs with the lowest job classifications. While no blacks worked in jobs classified in job class seven (“JC 7”) or above, 95 percent of the white workers were employed in jobs classed above JC 6. The employee relations manager, E. Reeves Sims, also testified that blacks were not hired for clerical positions until 1965. In addition, there were no black timekeepers or guards at Stockham before 1965. The salesforce was all white at least until the time of trial. In short, the record demonstrates that the district court plainly erred in concluding that at no time were initial job assignments made on the basis of race at Stockham. The “custom” of job assignments by race at least until 1965 was established without contrary evidence. The testimony of Stock-ham officials that segregation within and between departments was the “rule” plus the plaintiffs’ statistics on racial staffing discussed above establish conclusively that Stockham engaged in racially motivated job assignments before 1965. The plaintiffs carry their assertion of discrimination in job assignments into the post-Act period. They contend that all relevant evidence compels the conclusion that discrimination in job assignments continued at least until the time of trial. In support of their contention that racial allocation of employees by departments and by jobs within departments is the usual rule at Stockham the plaintiffs emphasize the patterns revealed by statistical evidence. Chart A bears out this contention. Chart A presents data on the percentage of black employees working in each seniority department in 1973, as compared with the percentage of those employees working in each department in 1965. CHART A DEPARTMENTAL EMPLOYEES BY RACE Seniority Denartments 1965 B W %B 1965 1973 B_ W_ %B 1973 Galvanizing 9 0 100% 15 0 100% Coreroom & Yard 24 0 100% 76 1 99% Grey Iron Foundry 92 0 100% 292 16 95% Pinal Inspection 16 0 100% 52 4 93% Malleable 88 4 96% 259 19 93% Brass Foundry 30 1 97% 59 Shipping 22 0 100% 56 Foundry Inspection 25 0 100% 56 9 Dispatching 4 0 100% 27 7 79% Brass Core Room 11 0 100% 11 3 79% Tapping Room 53 16 77% 151 45 77% Valve Finishing Insp. 8 4 67% 20 18 53% Construction 5 6 45% 15 18 45% Valve Machining & Assembly 76 36 68% 70 171 29% Foundry Repairs 4 10 29% 12 55 18% Machine Shop 3 9 25% 8 50 14% Electrical 1 7 12% 2 19 10% Pattern Shop 1 7 12% 3 37 Valve Tool Room 0 5 0% 1 17 6% Tapping Tool Room 0 11 0% 2 30 Chart A reveals a slight reduction in racial staffing by departments between 1965 and 1973. Nevertheless, in 1973 eleven of the twenty departments were predominantly black, while seven of the departments were predominantly white. Only two departments contained black and white employees in approximately equal numbers. As of September 1973 nine hundred and three or 72 percent of all blacks in the hourly work force worked in the departments of galvanizing, coreroom and yard, grey iron foundry, final inspection, malleable, brass foundry, shipping, foundry inspection, dispatching, and brass coreroom. Only 75 whites or 13 percent of all whites worked in those departments. In September 1973 thirty-six percent or 208 of all whites in the hourly work force and two percent or 28 of all blacks worked in the seniority departments of the tapping tool room, valve tool room, pattern shop, electrical shop, machine shop, and foundry repairs. Even more significantly, of the 162 employees hired since 1965 to work in predominantly white departments, and working as of September 1973,147 or 90.7 percent were white; whereas, of the 695 hired since 1965 to work in predominantly black departments, 624 or 89.8 percent were black. According to the plaintiffs, individual jobs at Stockham have also continued to be assigned largely on the basis of race. Chart B offers statistical support for this contention. CHART B RACIAL STAFFING OF JOBS AT STOCKHAM The data reveal that while no jobs were staffed by both blacks and whites in any department in 1965, that pattern had improved only slightly by 1973 when only 16 percent of all production and maintenance jobs were integrated. In addition, much of the improvement came between November 1970 and June 1973, after the plaintiffs had brought this action in the district court and long after the initial EEOC charge was filed. The plaintiffs also make the point that post-Act racial allocation of job opportunities extended to clerical, timekeeper, and guard positions. Chart C gives the number of black and white clerical employees for selected years between 1966 and 1973. CHART C CLERICAL EMPLOYEES BY RACE 1966 1968 1971 1973 White 193 200 184 189 Black 5 6 14 18 % black 2.5 2.9 7.1 8.7 Thus, in 1973 only 8.7 percent of clerical workers were black. In addition, although the company employs 22 timekeepers, only two blacks have ever been chosen for that job. About half of all timekeepers are selected from the hourly production and maintenance work force, which is 66 percent black. As of June 1973 there were 25 white plant guards and seven black guards. All three of the sergeants were white. Finally, in 1973 the company’s Birmingham sales department had twenty-two employees; all were white. The plaintiffs point out that in production and maintenance departments staffed with white and black employees, the blacks were principally concentrated in jobs with the lowest job classifications whereas whites worked largely in jobs with the highest job classifications. Chart D lists the job classes of white and black employees, working at Stockham in September 1973, for four different time periods between June 1965 and June 1973. CHART D JOB CLASSES OF WHITE AND BLACK INCENTIVE AND NON-INCENTIVE WORKERS INCENTIVE WORKERS Job Class June 1965 .B. M. June 1968 .B. W. Nov. 1970 M. W_ June 1973 JL W. B9 0 5 0 1 0 11 2 22 B8 0 47 2 53 4 60 18 111 B7 0 4 \ 23 1 70 9 Job Class June 1965 B_ W June 1968 B_ W Nov. 1970 B_ W June 1973 B_ WL B6 25 0 34 0 47 0 64 0 B5 134 0 214 1 235 1 279 11 B4 21 1 72 1 82 0 109 5 B3 89 0 80 0 94 0 102 4 B2 _58 _0 _21 _1 _32 157 _15 TOTALS 327 57 441 58 517 74 801 177 NON-INCENTIVE WORKERS Job Class June 1965 B. W_ June 1968 B_ W. Nov. 1970 B W June 1973 W_ 13 0 46 0 55 4 77 1 144 12 0 9 0 7 0 9 3 34 11 0 10 0 9 0 14 0 22 10 0 5 0 14 0 14 2 30 9 0 24 2 34 3 42 9 52 8 0 2 1 4 3 6 7 7 7 0 2 1 5 2 11 24 24 6 2 9 16 11 19 8 27 25 5 103 3 108 1 129 5 143 9 4 8 0 11 0 15 1 40 1 3 31 0 43 1 45 0 56 5 2 34 0 _59 3 _61 _2 190 _14 TOTALS 178 110 239 144 281 189 502 367 Because base pay rates at Stockham are determined by job classifications, the data revealed in Chart D support the conclusion that lower-paying jobs were allocated to blacks at Stockham, at least until 1973. The plaintiffs emphasize that the job class statistics reveal that of 366 white non-incentive workers, 274, or 75 percent, were in JC 9 or above while only 11, or 3 percent, of the 371 black non-incentive workers were in the higher job classes. Of the 178 white incentive workers, 135, or 76 percent, were in the two highest incentive job classes; whereas, only 20, or 2 percent, of the 872 black incentive workers were in JC 8 and 9. Further, the plaintiffs note that the average job class for blacks was substantially lower than the average job class for whites between 1965 and 1973. Further, the plaintiffs presented evidence of the disparities in black and white employee wages and gross earnings at Stock-ham. The job class differences between black and white workers also reveal the disparities in base pay for blacks and whites; the pay rate for each job is determined by the job class in which the job is located. Non-incentive workers are paid at an established hourly rate. As of June 1973 the pay range for JC 2 was $2.85 to $3.30 per hour while the range for JC 13 was $3.66 to $4.47 per hour. An incentive worker is paid at a guaranteed base pay rate somewhat below that paid a non-incentive worker in the same job class. For example, the incentive rate for JC 2 is $2.85 per hour while it is $3.29 per hour for JC 9. An indirect incentive worker is guaranteed a slightly higher base pay rate and receives on the average less incentive pay than an employee on the direct incentive system. A direct incentive worker’s pay averages approximately 25 percent above his base rate because of his incentive earnings. The exact amount of incentive pay varies with the productivity of the employee. The plaintiffs showed that the average hourly earnings rate of black employees, including base, incentive, and overtime pay, as of September 1973 was $3.83, or $0.37 less per hour than the average earnings of white employees. Similarly, white employees averaged approximately 12.8 percent more in yearly gross earnings than black employees during the period from January 1, 1973, through September 1, 1973. These pay disparities existed in 1973 even though blacks had greater seniority on the average than whites. The average hiring year for black employees in September 1973 was late 1963; whereas, white employees had an average hiring year of mid-1965. These statistics on pay disparities demonstrate that blacks have been assigned to jobs with lower economic returns than have white employees. Finally, the plaintiffs assert that blacks were assigned the least desirable jobs at Stockham both in terms of working conditions and the pressures associated with the work. Otto Carter, a white company superintendent, admitted that the hottest, dirtiest, and dustiest parts of the operation at Stockham are the foundry departments, grey iron, malleable, and ductile. Of the 586 hourly employees in these departments as of September 1973, 551 or 94 percent were black. As we mentioned, the incentive pay system at Stockham applies to highly repetitive jobs. Stockham’s production manager, Jack Marsh, in describing the work of an employee on the incentive system stated: “[H]e does the same thing over and over.” An employee receives incentive pay only if his production output exceeds the norm established by the company for the particular job. For this reason the pressures associated with incentive work at Stockham have led employees to call it “the racetrack” As of September 2, 1973, 70 percent of all black workers were assigned to incentive jobs as compared with only 31.7 percent of white employees. This concentration of blacks in incentive jobs and in the foundry departments supports the inference of discriminatory job assignments. The pattern of job assignments at Stock-ham appears to result from a process that is largely subjective. First, employees are selected for individual seniority department jobs by departmental supervisors. The selection decision is totally discretionary and is not guided by written instructions. Second, apart from testing and seniority requirements, the decision to promote or transfer an employee into a new department is discretionary with the appropriate departmental supervisor and there are no written standards for' the selection process. The supervisory staff at Stock-ham is composed overwhelmingly of whites, and there are no safeguards against racial bias in the selection process. In sum, even on the eve of trial the defendant Stockham discriminated in allocating jobs on the basis of race. A definite pattern of intentional racial staffing is revealed by statistical evidence on the disparities in black and white representation in seniority departments, on the relatively few integrated jobs in 1973, on the concentration of blacks in the lower job classes of both incentive and non-incentive jobs, and on the wage disparities between blacks and whites. In addition, it seems clear the undesirable working conditions associated with the jobs to which a vast majority of blacks are assigned verify the contention that jobs are allocated on the basis of race. The statistics must be evaluated in light of the admitted total segregation of jobs at Stockham until 1965; the persistent segregation of facilities and programs at least until 1974; and the roles played by white supervisors in discretionary and subjective assignment, transfer, and promotion decisions. This evidence taken together establishes a prima facie case of intentional discrimination according to the amicus EEOC. The plaintiff in an action under Title VII has the burden of establishing a prima facie case of discrimination in employment practices. That burden may be met with statistical proof when it reaches proportions comparable to those in this case. Wade v. Mississippi Cooperative Extension Service, 5 Cir. 1976, 528 F.2d 508, 516-17; United States v. Hayes International Corp. (“Hayes II”), 5 Cir. 1972, 456 F.2d 112, 120. See also Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 225 n.34; United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 442, 446, cert. denied, 1972, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815. Indeed the Supreme Court has recently approved the use of statistical proof in establishing a prima facie case of racial discrimination in the trucking industry. “Statistics are equally competent in proving employment discrimination. . Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 and n.20, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977) (Teamsters). Here the plaintiffs have produced evidence of gross disparities in job allocations at Stockham on the basis of race. All but two of the seniority departments were either predominantly white or predominantly black at Stockham at the time of trial in 1973. Only sixteen percent of the hourly jobs were integrated by that time. In 1973 the overwhelming majority of both incentive and non-incentive white workers were employed in jobs with the highest job classifications. Blacks earn, on the average, $0.37 less per hour than whites, including overtime and incentive pay. Seventy percent of all black employees work in the monotonous, pressurized conditions of the incentive system, and 94 percent of all workers subject to the hot, dusty, dirty conditions of the foundry departments are black. The disparities revealed by the statistics on job allocations at Stockham are gross and the statistical evidence compelling; they establish a clear prima facie ease of purposeful discrimination. The statistical patterns do not complete the plaintiffs’ case. In addition, they offer persuasive evidence of total job segregation prior to 1965 and the intransigent retention of segregated facilities and programs at Stockham until at least 1974. As this Court recently observed through Judge Clark in Swint v. Pullman-Standard, 5 Cir. 1976, 539 F.2d 77, 97: [T]he prior history of discriminatory job class assignments is clearly relevant to the issue of whether the present discrepancies in departmental assignments were part and parcel of a broad scheme to treat black and white workers differently. Historical policies of racial discrimination have often been used by other courts as indicia of plant-wide discriminatory conduct. (Footnote omitted.) In erroneously concluding that Stockham has never discriminated in job assignments the district court did not have a finding of prior discriminatory job class assignments at Stockham on which to rely in evaluating the post-1965 statistical evidence. Nevertheless, the court had before it unrebutted evidence of post-Act policies of segregation in facilities and programs as indicia of discriminatory conduct on the part of Stock-ham. The district court erred in not relying on that evidence in evaluating the plaintiffs’ case. In Bolton v. Murray Envelope Corp., 5 Cir. 1974, 493 F.2d 191, 195, this Court observed that the significance of statistical disparities between the races revealed in evidence of job assignment and employee discharges is magnified when appraised in light of the fact that [the defendant] has little, if any, initial job qualifications requirements. In nearly every situation, the hiring, initial job assignment, and promotion is almost exclusively a subjective determination made by white supervisors. Here initial job assignments were made on the basis of decisions by white departmental supervisors without any formal selection standards or written guidelines. Similarly, transfer decisions were made without objective standards by the largely white supervisory staff. For promotions, seniority controlled only when the supervisor decided that applicants were approximately equal in qualifications, a largely subjective decision made by predominantly white supervisors. In Rowe v. General Motors Corp., 5 Cir. 1972, 457 F.2d 348, 359, this Court examined procedures involving subjective evaluations of employees: All we do today is recognize that promotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination . . . . We and others have expressed a skepticism that black persons dependent directly on decisive recommendations from Whites can expect non-discriminatory action. See also Pettway v. American Cast Iron Pipe Co., 494 F.2d at 231-32; United States v. Jacksonville Terminal Co., 451 F.2d at 442. In addition, in Pettway this Court emphasized that “[c]ourts have condemned procedures for promotion and job assignment which are not objective and uniform.” Pettway v. American Cast Iron Pipe Co., 494 F.2d at 232 n.47. We conclude that the plaintiffs’ evidence of racial disparities in job allocations after 1965, of total job segregation prior to 1965, of the continued segregation of facilities and programs until long after the effective date of Title VII, and of subjective assignment, transfer, and promotion decisions by white supervisors at Stockham make a prima facie case of discriminatory employment practices in job allocations at Stockham. Once the plaintiff in a Title VII case has presented a prima facie case of discrimination, the “onus of going forward with the evidence and the burden of persuasion” is on the defendant. United States v. Hayes International Corp., 456 F.2d at 120. The strength of the evidence presented in this case imposes on the defendant a heavy burden in attempting to counter the inference of systematic and purposeful discrimination. The defendant Stockham seeks to rebut any “colorable” inference of discrimination primarily by means of two arguments, both of which focus on the disparities in job classes of positions in which blacks and whites are employed. First, Stockham contends that an employee’s job class has only a negligible impact upon employee earnings. In support of this argument the defendant points to four facts: (a) that incentive workers earn approximately 25 percent more than their base pay rate, (b) that of 75 employees in the production and maintenance unit making more than $9,000 a year in 1972, 40 of these persons were in job classes 9 and below, (c) that no JC 11 or 12 workers earned more than $9,000 in 1972, and (d) that some black employees earned more than white employees. The district court relied on these same facts in finding that Stockham has not engaged in discriminatory job assignments. These four facts are unpersuasive of the “negligible” impact of job class on employee earnings and largely irrelevant to the issue of present discrimination in job allocations. First, the evidence is uncontradicted that the job class in which a job is located determines the base pay rate for the job and that the lower the job class, the lower the pay rate. That incentive workers earn more than the base rates for their jobs does not refute the direct relationship between pay rate and job class. Further, that some incentive workers are industrious enough to earn more than $9,000 also does not refute the relationship. Moreover, that workers in JC 11 and 12 do not earn more than $9,000 suggests only that incentive pay augments base pay. More importantly, it suggests that incentive jobs may not be as desirable as the defendant would have us believe. Workers obviously seek the skilled craft jobs in job classes 11 and 12 even though they are not on the incentive system and thus have built-in limitations in pay. In its argument the defendant overlooks the fact that many jobs in JC 11 and 12 serve as training grounds for JC 13 positions and thus'have greater earnings potential over the long term than do incentive jobs with lower job classes. Finally, Stockham attempts to show that whites in one of the higher-classified jobs, crane operator in the iron grey foundry, did not earn more than some of the blacks in that department working in lower job classifications. For example, as the plaintiffs point out, one white crane operator in 1972 earned less than 81 of the 292 blacks in the department. When the data are controlled for seniority, however, and the white crane operator’s salary is compared with that of blacks hired the same year as he was, 1968, the evidence is more revealing. The white employee had a higher earning rate per hour than all but one black. The defendant seeks to refute the plaintiffs’ evidence that blacks earn an average of $0.37 less per hour than whites, including incentive and overtime pay, by means of the testimony of an expert witness. Dr. James Gwartney, an economist who testified for the defendant, conducted a study of the earnings of production and maintenance employees at Stockham in an attempt to determine the factors that explain earnings disparities between employees. He concluded that such productivity factors as education, skill, building experience, craft skill level, and absenteeism — not discrimination — explain the earnings differences between blacks and whites at Stockham. In studying the earnings opportunities at Stockham Dr. Gwartney considered four factors: (1) the earnings of employees at Stockham compared with the earnings of those in local, regional, and national labor markets and with earnings in other companies; (2) relative changes in the earnings of company employees over a long period of time; (3) relative changes in the earnings of company employees recently hired; and (4) application of the residual approach of scientifically adjusting earnings for productivity factors. Dr. Gwartney’s analysis does not meet the point that wage differences between blacks and whites at Stockham are explained by racially discriminatory job allocations. The first three factors are irrelevant to the question of discrimination at Stockham. The critical question is whether blacks at Stockham earn less than whites at Stockham, not whether blacks at Stockham earn more or less than blacks in various other geographic areas or in other companies. Those statistics will suggest only whether there is more or less discrimination in earnings opportunities for blacks in other settings as compared with Stockham. In addition, such statistics are totally irrelevant to the issue whether blacks are segregated by jobs and departments at Stockham and to the issue whether blacks must earn their wages under conditions less desirable than those of whites. On its face, Dr. Gwartney’s fourth factor deals with relevant and persuasive statistics on earnings disparities between blacks and whites. His regression analysis of productivity factors will not stand scrutiny. Regression analysis is a statistical method that permits analysis of a group of variables simultaneously as part of an attempt to explain a particular phenomenon, such as earnings disparities between blacks and whites. The method attempts to isolate the effects of various factors on the phenomenon. Dr. Gwartney’s analysis is based on the assumption that productivity factors, not discrimination, may explain the wage differences between Stockham’s black and white employees. The productivity factors Dr. Gwartney employed were years of schooling, achievement, seniority, skill level, outside craft experience, outside operative experience, absenteeism, and merit ratings. The rub comes with how these factors were defined in Dr. Gwartney’s study. As the plaintiffs point out, the critical factors of “skill level” and “merit rating” were defined in such a way as to incorporate discrimination. “Skill level” was derived from an employee’s job class; he had “skill” only if he worked in a job with a rating between JC 10 and 13. The systematic exclusion of blacks from promotion and training opportunities for such jobs, as is alleged here, will automatically produce no black employees with “skill level”. A regression analysis defining “skill level” in that way thus may confirm the existence of employment discrimination practices that result in higher earnings for whites. Dr. Gwartney used the merit ratings of Stockham supervisors, who are overwhelmingly white, for his “merit rating” factor; blacks average 71.3 in these ratings while whites average 79.3. If there is racial bias in the subjective evaluations of white supervisors, then that bias will be injected into Dr. Gwartney’s earnings analysis. Further, Dr. Gwartney included education as one of his productivity factors, even though education is not a job requirement at Stockham, because, according to the defendant, “an individual’s educational level, regardless of race, impacts earnings”. The fallacy in this conclusion stems from two facts: (1) as the defendant concedes, education is not a job requirement at Stockham, and (2) white employees at Stockham have more education than blacks. Thus, adjusting for education in a regression analysis of earnings where education is not related to job performance and where one race is more educationally disadvantaged than another, masks racial differences in earnings that may be explainable on the basis of discrimination. Certainly such differences cannot fairly be explained on the basis, of a factor, such as education, concededly irrelevant to adequate job performance. Significantly, although Dr. Gwartney asserted that his study proves that productivity factors and not discrimination explain the wage differences between black and white employees at Stockham, he concedes that he made no attempt to control or check for racial bias in his analysis. Our examination of his analytical approach compels us to conclude that the results of Dr. Gwartney’s study in no way refute the plaintiffs’ prima facie case of racial discrimination in job allocations at Stockham. Stockham’s attempt to refute the plaintiffs’ evidence of racial job allocations by focusing on earnings differences misses the point. First, such an emphasis ignores the lopsided statistics on the number of all-black and all-white jobs at Stockham. Second, the defendant’s focus on earnings avoids consideration of whether job segregation by itself, apart from any issue of economic harm, violates Title VII. This Court recently ruled on this issue in Swint v. Pullman-Standard, 539 F.2d at 89-90, in an opinion by Judge Clark: [A] Title VII plaintiff does not have to show economic loss to prove discrimination. The key for this case is whether there was past discrimination . . Going further and requiring plaintiffs to prove that past assignment practices produced lower pay checks is contrary to law and precedent. . Title VII contains neither requirement nor implication that economic harm must be shown before a class can be found to have made out a prima facie case of racially discriminatory job assignment. Indeed, the statutory prohibitions of the enactment are explicitly broader than economic harm. Thus, not only is the defendant’s attempt to rebut the inferences of discrimination presented by the plaintiffs’ evidence factually inadequate, it is also legally insufficient. The defendant seeks to augment its rebuttal of the plaintiffs’ prima facie case with a second argument on the issue of the working conditions associated with departments and jobs in which blacks work. The defendant relies in part on the finding of the district court that the plaintiffs’ allegation that blacks work in the hottest, dirtiest, and dustiest jobs at Stockham is unsupported. We have previously discussed the evidence offered by the plaintiffs to substantiate this assertion. We reject the conclusion that the allegation is unsupported. In addition, the defendant contends that the plaintiffs failed to establish any correspondence between job classifications and work conditions. Stockham argues that many of the job class 10 through 13 positions held at Stockham by whites involve working conditions similar to the ones described by the plaintiffs. This argument does not reach the evidence that an overwhelming majority of blacks work in the tedious and pressure-filled atmosphere of incentive jobs while a substantial majority of whites do not. In addition, this argument in effect confirms another of the plaintiffs’ contentions, that even in the largely all-black foundries the few jobs held by whites are the ones in the highest job classes. Even more significantly, this defense, focusing on the relative desirability of jobs and departments, like the defendant’s emphasis on earnings data, is legally irrelevant. In Swint we made clear that departmental desirability is not an essential part of a plaintiff’s prima facie proof. Swint v. Pullman-Standard, 539 F.2d at 91. In Reed v. Arlington Hotel Co., Inc., 8 Cir. 1973, 476 F.2d 721, 723, discussed in Swint, the Eighth Circuit concluded: “[Statistics which show segregated departments and job classifications establish a violation of Title VII.” Along with that court, our concern is that black employees have suffered “the indignities of segregation”. Id. at 726. Here the plaintiff presents undeniable evidence of segregated jobs, the concentration of blacks in certain departments, the lengthy unlawful segregation of facilities and programs, the admitted total allocation of jobs on the basis of race before 1965, and the subjective selection of employees for assignment, transfer, and promotion by an overwhelmingly white supervisory staff. Evidence of disparities in the earnings and working conditions of blacks and whites are persuasive, as in this case, but unnecessary to a determination that Title VII has been violated in the allocation of jobs on the basis of race. The district court bases its holding that Stockham did not discriminate in job assignments after 1965 essentially on two conclusions: (1) that blacks were not qualified for more skilled positions and (2) that blacks voluntarily chose the jobs to which they were assigned. The EEOC points out the dearth of factual support for the court’s reasons. First, the court relies on the testimony of Flount R. Hammock, manager of the Alabama State Employment Service in Birmingham, in support of its first conclusion. But Hammock stated: “[W]hen we’re talking about skilled trade, there are very few white or black available.” Thus the court’s first factual conclusion is clearly erroneous. In addition, Stockham trains a substantial number of all craftsmen it employs at Stockham. In support of its conclusion that blacks were assigned to positions they requested or preferred, the district judge stated: Of the 626 employees (251 white and 375 black) employed as of January 1, 1974, who had sought a specific job when applying to Stockham for employment, 61% of the white employees and 53% of the black employees were placed in the job of their own selection. 394 F.Supp. at 455. As the EEOC correctly observes, these statistics are factually insufficient and legally irrelevant. First, over two-thirds of Stockham’s work force has been assigned to jobs without assignment requests. In addition, these statistics do not reflect the number of blacks not hired at Stockham who sought traditionally white jobs and were rejected. Further, the statistics do not include information on the number of blacks who sought to transfer to jobs in traditionally white departments or positions after having worked for a time at Stockham. Finally, this Court has frequently recognized the “meaningless request” phenomenon. Pettway v. American Cast Iron Pipe Co., 494 F.2d at 232; Bing v. Roadway Express, Inc., 5 Cir. 1973, 485 F.2d 441, 451. Recently, in Teamsters, 431 U.S. at 367, 97 S.Ct. at 1870, the Supreme Court observed: [A] nonapplicant can be a victim of unlawful discrimination . . . when an application would have been a useless act serving only to confirm a discriminatee’s knowledge that the job he wanted was unavailable to him. The district court’s reliance on the percentage of requests for specific jobs granted new black employees is legally misplaced in cases such as the one before us. We hold that the district court erred in concluding that jobs have never been allocated on the basis of race at Stockham. There is overwhelming evidence in the record of past and present discrimination in the allocation of jobs in violation of Title VII. C. Testing Program 1. Wonderlic Personnel Test Although only the Bennett Mechanical Comprehension Test for screening apprentice program candidates was in use before 1965, in August of that year, just after Title VII became effective, Stockham instituted an extensive testing program. The company adopted the Wonderlic Personnel Test for use in screening virtually