Substantive Issues

Whereas the courts' liberal interpretation of procedural issues under Title VII has shaped the form of Commission compliance efforts, so has the interpretation of substantive issues related to defining and ameliorating alleged acts of discrimination. As was true for procedural issues, the courts have generally accepted the Commission's interpretation of Title VII.

On issues of hiring, any conduct of an employer from which it can. be "inferred" that the decision to hire or not to hire is based upon race, religion, sex, or national origin is per se a violation of

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Title VII. In Gates v. Georgia Pacific Corporation the court determined

a violation existed by drawing an inference of discrimination on the basis of race from an employer's preference of a white employee with less qualifications than a black employee for a job transfer. Statistics may

also be used as evidence of discrimination.

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In Parham v. Southwestern

Bell Telephone Company the Eighth Circuit Court of Appeals stated "We hold as a matter of law that these statistics, which revealed an extraordinarily small number of black employees, except for the most part as menial laborers, established a violation.

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In recruitment, any method of advertising employment openings which entrenches past discriminatory policies or has the effect of discrimination is violative of Title VII. A policy of hiring at the gate without public 52/ notice was found in violation in Clark v. American Marine Corporation.

Also, the granting of preference to former employees or close friends and relatives of the existing work force where such force was predominantly is inherently discriminatory. 1,531

white ".

Any hiring policy which is neutral on its face but discriminatory

in its effect is an unlawful employment practice unless compelled by

business necessity.

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As a consequence, employment selection procedures

have been of considerable interest to the courts. Section 703 (h) explicitly

allows an employer (but not a union) to utilize the results of "any professionally developed ability test," provided it is not "designed, intended, or used to discriminate."

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In Griggs v. Duke Power the Court

of Appeals held the professionally developed tests, adopted pursuant to a legitimate business purpose and without specific intent to discriminate, did not have to be shown to be job-related, despite their disparate impact upon Negroes. But the Supreme Court reviewed the legislative history and concluded that it ". . . is inescapable that the EEOC's construction of 703 (h) to require that employment tests be job-related comports with ,,56/ Congressional intent. In another decision involving the legality of certain pre-employment screening criteria, the Supreme Court reversed the lower court's ruling that a policy prohibiting employees with pre-school age children, applicable only to women, was not violative of Title VII.57/

Union conduct has provided a substantial body of litigation. Generally, any overt classification or segregation based on race, sex, religion, or national origin by a union in its initiation procedure or in any relationship with an employer is a violation of Title VII. Maintenance of segregated locals performing the same work in the same geographical area is 58/ Any limitation upon membership or referral which has the

unlawful.

effect of discrimination is a violation.59/ Where the union has notice that

the employer is engaging in unlawful employment practices and refuses to take affirmative action or acquiesces in such conduct, the union is treated as ratifying the conduct of the employer, and it has therefore committed 60/ an unlawful employment practice.

Seniority systems are an integral part of collective bargaining

agreements. Section 703 (h) allows an employer to apply different standards

of compensation, or different terms, conditions, or privileges of employment according to a "bona fide seniority or merit system" so long as such

differences are not a result of an intention to discriminate.

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The major issue is whether a seniority or merit system which has the present effect of carrying forward pre-act discrimination constitutes a bona fide system. In Quarles v. Phillip Morris, Inc. the court held that nothing in 703 (h) or its legislative history "... suggests that a racially discriminatory seniority system established before the act is a bona fide seniority 62/ 11 system. In the court's view, a present seniority system which maintains past discriminatory effect is sufficient to provide the necessary intent to discriminate so as to fall within the confines of the proviso of Section 703 (h). Although many may argue over the true legislative intent of this section, it is presently the law that carrying forward of the status quo of past discrimination is in violation of Title VII. The Supreme Court 63/

has countenanced this view also.

Section 703 (e) (1) allows an employer, employment agency, or labor organization to discriminate where "religion, sex, or a national origin

is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise. Race cannot be a bona fide occupational qualification under any circumstances. In

Lansdale v.Airline Pilots Association, International64/ the Fifth Circuit

held that a union must accord the same treatment to married female flight attendants as to married male flight attendants unless sex was shown to be 65/

a BFOQ. Shortly thereafter, in Diaz v. Pan American World Airways the Fifth Circuit Court of Appeals overturned the lower court's decision and

adopted the EEOC guidelines forbidding customer preference as a determination of BFOQ. The court concluded that the hiring of members of one sex would not undermine the business operation of the airline. The court further held that hiring members of one sex may not be justified on the ground that they are more likely to possess the qualities required and may therefore be screened more inexpensively.

Any attempt to classify job assignments upon an arbitrary standard steeped in the alleged inferiority of women is a violation of Title VII. In Bowe v. Colgate Palmolive Company the Court of Appeals stated the employer ".

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must notify all of his workers that each of them who

desires to do so will be afforded a reasonable opportunity to demonstrate his (her) ability to perform more strenuous jobs on a regular basis." In so ruling, the court held that a privately-imposed weight limitation applicable only to women violated Title VII.

It appears, then, that Title VII has been extended and refined by the judiciary to eliminate many of the barriers which have perpetuated discrimination in this country. The power of the Commission and that of private citizens to pursue and abolish the vestiges of discrimination in employment has been expanded at the same time. Judicial interpretation of Title VII has clearly acclimated the whole field of employment and labor to the problems and difficulties of discrimination and to the

effect such conduct has on the national welfare.

Minority Employment--1966 to 1969

Before going further to study the compliance procedure of Title VII, the determinants of its success or failure, and its impact on minority

employment and that of women, it is useful to have an overall view of

changes in this employment in a period immediately following enactment

of the law.

Consequently, EEO-1 data collected from firms subject to Title VII are utilized for this purpose. The data reveal changes in the occupational distribution of private, nonagricultural employment of

minorities and women and exhibit variations in the distribution among regions of the U.S.

The U.S. Distribution of Minority Employment

Minorities' share of total employment for men and women in the

U.S. grew, if only slightly, in the three years following the first EEO-1 reporting (see Table 2-9). Although the increase for women among Spanish-surnamed Americans, Orientals, and American Indians paralleled that for men, the change for black women substantially surpassed that In fact, black women's share of female employment in 1969 exceeded black men's share of male employment, a phenomenon not found

of men.

among other minority groups.

In 1969 as in 1966, for both men and women, blacks comprised far

and away the largest of the minority groups.

Spanish-surnamed Americans

made up almost a third as much of the work force as blacks.

Orientals

and American Indians, by comparison, composed only a small fraction of the minority group work force, and, of course, an even smaller fraction of the total work force. Blacks comprised 9.5 percent of all those employed while Spanish-surnamed Americans represented 3.2 percent, Orientals 0.7 percent, and American Indians 0.3 percent.

By occupation, minority men and women made persistent if unspectacular gains. But the proportion in the five top occupational classifications