Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73-C-2263.
Swygert and Sprecher, Circuit Judges, and Campbell, Senior District Judge.*fn1
This action was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981, and concerns claims of racial discrimination in hiring and promotion against General Motors Corporation at its Broadview, Illinois Parts Distribution Center. Plaintiffs are black employees representing the class of black people who have been employed at this facility in hourly rated positions since December 21, 1973. Plaintiffs claim that discrimination exists at the Broadview plan with respect to: (1) promotions to the position of hourly clerk, the most desirable of the hourly rated jobs; and (2) promotions to salaried positions.
Charges were filed before the Equal Employment Opportunities Commission (EEOC) in June 1972 and an action was commenced in the District Court for the Northern District of Illinois in August 1973. The district judge found that defendant's promotional practices violate section 703 of Title VII, 42 U.S.C. § 2000e-2. Accordingly, he issued an injunction designed to prevent future racial discrimination in promotions to the position of hourly clerk and to salaried positions.
In reviewing the district court's decision, we are bound under Fed.R.Civ.P. 52(a) to accept findings of fact unless they are clearly erroneous. Prince v. Packer Mfg. Co., 419 F.2d 34, 36 (7th Cir. 1969). The statement that discrimination exists for the purposes of establishing liability under Title VII, however, is as much a conclusion of law as a finding of fact. A distinction must be drawn between subsidiary facts to which the "clearly erroneous" standard applies, and the ultimate fact of discrimination within the meaning of Title VII, which is the decisive issue to be determined in this litigation. East v. Romine, Inc., 518 F.2d 332, 338-39 (5th Cir. 1975). Accordingly, we will make an independent examination of whether defendant's conduct constitutes a violation of Title VII.
I. Discrimination in Promotions to Hourly Clerk Positions
The district court found that the position of hourly clerk is the most desirable hourly job at the Broadview plant, both because it is highly paid and because it is considered a stepping stone to salaried positions. It also found that at the time this action was instituted, twenty-five percent of the workforce at the Broadview plant was black, while none of the twenty-seven hourly clerks were black. It then held as a matter of law that under the circumstances of the case these statistics created a prima facie case of discrimination under Title VII. We agree with this conclusion. Where statistical evidence demonstrates a discrepancy between the racial composition of those promoted to a given job and the pool of eligible applicants which is too great to reasonably be the product of random distribution, the burden should be placed on the employer to show that this disparity is the product of nondiscriminatory factors. See United States v. Local 169, United Brotherhood of Carpenters, 457 F.2d 210, 214 (7th Cir.), cert. denied, 409 U.S. 851, 34 L. Ed. 2d 94, 93 S. Ct. 63 (1972); Rowe v. General Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972).
Defendant advances as an affirmative defense that it is utilizing a "bona fide seniority system," expressly exempted from liability under Title VII by 42 U.S.C. § 2000e-2(b), in filling hourly clerk vacancies. The district court found as a fact, however, that seniority often served only an ancillary role in determining promotions to the position of hourly clerk. Despite defendant's contention that this finding is contrary to the evidence, our examination of the record shows that it has ample support.
Since defendant has therefore failed to rebut the prima facie case which plaintiffs' statistical evidence makes out, we hold that its promotional practices with respect to the position of hourly clerk are discriminatory in violation of Title VII.
II. Discrimination in Promotions to Salaried Positions
Plaintiffs' case that discrimination existed in promotions to salaried positions is also based on statistical evidence. For example, prior to any legal pressure, only two out of ninety-seven salaried jobs were held by black people. As of the time of trial, twenty-one percent of the white employees at Broadview, compared with only nine percent of the black employees, held salaried positions. Given that the district court's statistical findings are supported by substantial evidence, we agree that the plaintiffs have again made out a prima facie case of discrimination.
Unlike its argument in the case of promotions to the position of hourly clerk, defendant does not contend that it is relying on a bona fide seniority system in filling vacancies for salaried jobs. Rather, it admits that promotions to the salaried workforce are awarded on a subjective basis which is intended to recognize merit. It then asserts that the district court's finding of a Title VII violation should be reversed because plaintiffs had failed to meet their burden of demonstrating that individual employees had been denied salaried positions because of racial discrimination.
Defendant's argument misconceives the nature of what must be proved to show discrimination under Title VII. For plaintiffs to prevail, it is not necessary that they prove scienter by showing that in individual cases General Motors consciously excluded black employees from salaried positions simply because of their race. Rather, they need only show that black employees as a group were promoted at a significantly lower rate than white employees. At that point, as we stated earlier, the burden would be on the defendant to ...