Employment Practices Decisions Archive: 1937 - 1995, [EMPLOYMENT-PRACTICES ¶6,252] , RACIAL PRACTICES SUGGEST DISCHARGE WAS FOR UNLAWFUL PURPOSE, (June 02, 1971), Equal Employment Opportunity Commission, (Jun 2, 1971)
[EMPLOYMENT-PRACTICES ¶6,252] RACIAL PRACTICES SUGGEST DISCHARGE WAS FOR UNLAWFUL PURPOSE
Decision of Equal Employment Opportunity Commission,
No. 71-2341June 2, 1971
Title VII--Civil Rights Act of 1964
Racial Discrimination--Promotions--Supervisory Positions--Recommendations by Other Supervisors.--An employer’s promotional policy requiring that initial recommendation for promotion to a supervisory position come from incumbent supervisors amounts to unlawful discrimination against Negro employees on account of their race when all of the supervisory positions are occupied by Caucasians.
Racial Discrimination--Job Transfers--Seniority System--Past Discrimination.--In view of an employer’s past practice of assigning employees to jobs on the basis of race, a transfer policy that required Negro porters to suffer a loss of accumulated seniority when transferring into upgraded positions by reason of a system that based seniority on employment in a department or job classification was unlawful.
Racial Discrimination--Discharge--Refusal to Work Overtime--Discriminatory Motive--Racial Practices.--The discharge of a long-time Negro employee for allegedly refusing to work overtime is deemed to have been unlawfully motivated where there wasno evidence that any other employee had been discharged for such reason and where there was a reasonable basis for inferring that the employer treated Negro employees differently in view of evidence that employer engaged in discriminatory hiring, promotion and transfer practices, and maintained segregated job classifications and plant facilities.
Full Text of EEOC Decision
Pursuant to 29 CFR 1601.19(b) of its regulations, the Commission has reconsidered its decision in the instant case, issued December 30, 1970, which found that there is not reasonable cause to believe that Charging Party was discharged because of his race (Negro) and that there is reasonable cause to believe that Respondent maintains segregated facilities at the situs of the charge in violation of Title VII of the Civil Rights Act of 1964.
Upon a review of the evidence of record the Commission finds its analysis and decision to be incomplete and, in part, erroneous.
Evidence demonstrates that, as of the time of the investigation of the instant charge, Respondent’s work force reflected the following racial composition: [1]
Caucasian Negro |
An incumbent porter, in an affidavit, contends that when he inquired about becoming a dispatcher, Respondent’s Assistant Terminal Manager replied that there were no Negro supervisors in Respondent’s enterprise. The affiant asserts that Respondent official promised to administer Charging Party “the exam.” [2] This was not done.
In an interview with the Commission’s representative, two officers of the Local Union, which represents persons employed by Respondent as porters and service employees, stated that they had recommended to Respondent that a Negro employee be promoted to supervisor. The Union officials assert that Respondent’s Regional Manager responded, in part, by alluding to the fact that an employee must be recommended by his supervisor in order to secure a supervisory position for himself.
It has been the Commission’s experience that where all supervisory positions are occupied by persons of one race, a promotion system which requires initial recommendation by incumbent supervisors denies members of other races equal consideration and opportunity because of their race. Commission Decisions Nos. 70-94, August 19, 1969 and 71-1442, March 18, 1971, EMPLOYMENT PRACTICES GUIDE (CCH) ¶6055 and 6216. The Union officials contend that Caucasian supervisors have been hired since their request.
In light of these facts concerning Respondent’s promotion policies and the aforementioned statistics, it has preliminarily been demonstrated that Respondent is engaged in a practice in violation of Title VII with respect to its hiring and promotion policies. It is reasonable to infer that race has been a factor in staffing Respondent’s job categories. The use of evidence of statistical probability to infer the existence of a pattern or practice of discrimination is permissible in circumstances such as these. U. S. v. Hayes International Corp., [2 EPD ¶10,061 , 60 LC ¶9303] 415 F. 2d 1038 (5th Cir. 1969); Parham v. Southwestern Bell Telephone Co., 433 F. 2d 421 (8th Cir. 1970), 3 EPD ¶8021 ; Jones v. Lee Way Motor Freight, [2 EPD ¶10,283 , 63 LC ¶9504] 431 F. 2d 245 (10th Cir. 1970); U. S. v. I. B. E. W., Local 38, [2 EPD ¶10,242 , 63 LC ¶9463] 428 F. 2d 144 (6th Cir. 1970); U. S. v. Dillon Supply Co., [2 EPD ¶10,256 , 63 LC ¶9477] 429 F. 2d 800 (4th Cir. 1970). We so find.
Job classifications at Respondent’s terminal are separated into two groups, designated A and B. Group A is comprised of Ticket Agents, Travel Bureau Agents, Platform Agents, Express Agents, Baggage Agents, Telephone Information Clerks and Report Clerks. Group B is comprised of Porters, all of whom are Negro. Mechanics,Apprentices and Drivers are in separate classifications. According to Respondent’s personnel statistics (which are inconsistent with its overall employment figures of the same date), there are nine Negro employees in group A, all of whom were upgraded to group A position from group B (Porters). As a result of such transfer these employees suffered a loss of seniority accumulated during their tenure as Porters.
The Commission has found that race has been a factor in staffing Respondent’s jobs. The fact that all nine group A, Negro employees are transfers supports this finding. Given these facts, Respondent’s seniority system perpetuates the effects of Respondent’s past (and present) discriminatory hiring policies. It penalizes transferees thus discouraging transfers by Negroes into jobs which were closed to them at the time of their hiring.
It is well settled that a current policy which perpetuates the effects of past discrimination is unlawful unless the policy serves an overriding legitimate business purpose. Papermakers Local 189 v. United States, [2 EPD ¶10,047 , 60 LC ¶9289] 416 F. 2d 980, 989 (5th Cir. 1969), cert. denied, [2 EPD ¶10,177, 62 LC ¶9406] 397 U. S. 919 (1970); United States v. Sheet Metal Workers Local 36, [2 EPD ¶10,083 , 61 LC ¶9319] 416 F. 2d 123 (8th Cir. 1969); Griggs v. Duke Power, [2 EPD ¶10,143 , 61 LC ¶9379] 420 F. 2d 1225 (4th Cir. 1970); U. S. v. IBEW Local 38, [2 EPD ¶10,242 , 63 LC ¶9463] 428 F. 2d 144 (6th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., [2 EPD ¶10,283 , 63 LC ¶9504] 431 F. 2d 245 (10th Cir. 1970); United States v. Bethlehem Steel Corp., [2 EPD ¶10,219 , 62 LC ¶9448] 312 F. Supp. 977 (W. D. N. Y. 1970). There is no showing by Respondent that its seniority system is essential to the safe and efficient operation of its business. Accordingly, Respondent’s seniority system discriminates against Negroes because of their race within the meaning of Section 703(a) of Title VII to the extent that employment decisions are based upon departmental seniority and job classification rather than upon plant seniority and qualifications. Papermakers Local 189, supra, 416 F. 2d at 983; see also United States v. Hayes International Corp., [2 EPD ¶10,061 , 60 LC ¶9303] 415 F. 2d 1038, 1044 (5th Cir. 1969); Quarles v. Phillip Morris, Inc., [1 EPD ¶9843 , 57 LC ¶9101] 279 F. Supp. 505 (E. D. Va. 1968).
With respect to Charging Party’s individual allegation, it is Respondent’s contention that Charging Party was discharged because of his refusal to work overtime on December 5, 1967. Respondent’s Regional Manager stated that he could think of no other incident, in which an employee was discharged for “insubordination.” The factual question as to whether Respondent attempted to secure other personnel to work overtime is not resolved by the evidence of record. The fact that never before has an employee been discharged for this reason makes any comparison of records impossible, and the Commission finds that discharges for “desertion” (not showing up for work at all) are not comparable to Charging Party’s offense. Charging Party contends that in his 16 years of employment with Respondent he had never before refused to work overtime. Respondent has not attempted to make a showing that this or Charging Party’s documented reason for refusing (illness and safety of wife) are untrue. The Commission concludes, after finding Respondent to be in violation of Title VII with respect to hiring, promotion, transfer, segregated job classifications and segregated facilities that is reasonable to infer that Negro employees are treated in a manner less favorable than Caucasians and that, but for his race, Charging Party would not have been discharged in the circumstances shown. We so find.
That portion of our December 30, 1970 decision concerned with segregated facilities is adopted. The remainder of that decision is withdrawn and upon reconsideration of the record as a whole, we conclude that there is reasonable cause to believe that Respondent has engaged in unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964 by discharging Charging Party because of his race, by discriminating against Negro employees in its hiring, promotion and transfer policies, and by maintaining segregated job classifications and segregated facilities.
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