EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. GREYHOUND LINES, INC., (2 Cases) Appellant

635 F.2d 188, 24 Fair Empl. Prac. Cas. (BNA) 7

• Court: Court of Appeals for the Third Circuit
• Decided: October 15, 1980
• Docket: 79-2824, 80-1154
• Status: Published

Opinions

OPINION OF THE COURT

ALDISERT, Circuit Judge.

We are to decide whether the plaintiff met the necessary burden of proving that Greyhound Lines’ facially neutral no-beard job qualification policy had a discriminatory effect against black workers. In a race discrimination complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, the Equal Employment Opportunity Commission (EEOC or Commission) challenged the legality of Greyhound’s policy that prohibits the wearing of beards by employees holding public contact jobs. It brought this action in behalf of Jeffrey B. Ferguson, a twenty-seven year old black male who has a skin condition called pseudofolliculitis barbae (hereinafter PFB), which predominantly affects black males who shave. After a bench trial the district court found in favor of the Commission and directed Greyhound to offer employment to Mr. Ferguson in the public contact job of ticket agent. Greyhound has appealed. We reverse.

I.

Greyhound provides inter-city bus transportation as a common carrier in competition with other buses, railroads, and airlines as well as with the private automobile. For more than eighteen years it has established and enforced appearance and grooming standards that include a proscription against beards. The no-beard portion of Greyhound’s policy directive provides: “Beards, goatees, mutton chops or other facial hair growths of an extreme or bizarre style are neither acceptable nor permissible and are calculated to impair the neat and tidy personal appearance which is critically requisite and, accordingly, may not be worn.” Exh. P-11, D-l; App. at III-17a, III-117a. Prior to the summer of 1976, appearance standards including the no-beard policy were applied to all employees at Greyhound’s Philadelphia terminal, including employees whose positions did not involve public contact. Greyhound changed its policy in the summer of 1976 to permit terminal employees not serving in public contact jobs to wear beards.

Greyhound hired Ferguson at its Philadelphia terminal as a telephone information clerk on June 9, 1974, when the no-beard policy applied to all positions. When he was hired he was advised of the appearance standards including the requirement that employees be clean shaven. The record discloses that he did not wear a beard when first hired, that he did not grow a beard until two years later, that his employment was interrupted from time to time while he returned to college, and that while attending college he did not grow a beard. When he grew his beard he was still employed in the non-public contact position of telephone information clerk, but he later bid for the public contact position of ticket agent. Greyhound refused to consider him for that position because he did not satisfy the no-beard rule.¹ This lawsuit followed.

II.

Greyhound appealed from both critical findings of fact and conclusions of law entered by the district court. Because of the view we take it will be unnecessary to consider all of Greyhound’s arguments.² Moreover, the view we take proceeds along an assumption, not briefed or placed in issue here or in the district court, that under Title VII it is legally possible to establish a disparate impact case on the basis of an employer’s no-beard policy. We make clear at the outset that this is only an assumption and that this ultimate issue has not been met or decided in this court.³

The Commission did not contend, and the district court did not determine, that Greyhound adopted its no-beard policy with the purpose or intent to discriminate against black employees. Rather it sought to prove racial discrimination under the disparate impact theory. To prevail on this theory, EEOC had to demonstrate that members of Ferguson’s race suffered substantially disproportionate effects from the application of a seemingly neutral policy. Griggs v. Duke Power Co., 401 U.S. 424, 430-32, 91 S.Ct. 849, 853-854, 28 L.Ed.2d 158 (1971). We have concluded that the plaintiff failed to prove that the employment of blacks was substantially disproportionately affected by the no-beard policy, and therefore that it failed to establish a prima facie case of racial discrimination.

Proof of actual discrimination in employment is a necessary element of every disparate impact case. Employers are not required to justify every employment practice or qualification. It is only after the plaintiff has made a prima facie showing of discrimination that the employer is required to go forward with evidence to justify the practice as job related and racially neutral:

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets “the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question.” Id., at 432, 91 S.Ct. at 854. This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i. e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) (footnote omitted) (emphasis added). See also, e. g., Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977).

In this case, however, EEOC produced no evidence that Greyhound’s no-beard policy selects applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. To the contrary, statistical evidence introduced at trial by Greyhound establishes the absence of any discriminatory consequences in the application of the no-beard rule. The undisputed statistics show that from at least 1974 through the end of 1978 the percentage of black male employees to total male employees in jobs at the Philadelphia terminal covered by the no-beard policy has exceeded substantially the comparable percentage of black males in the labor force and in the general population in the Philadelphia Standard Metropolitan Statistical Area (SMSA). For every year since 1974, black males held more than twenty percent of the jobs subject to the no-beard policy at the Philadelphia terminal, but comprised only approximately fourteen percent of the total male population in the Philadelphia SMSA labor force and approximately fifteen percent of the total males in the general population.⁴ Furthermore, although the total number of black males subject to the personal appearance code ranged from a low of eighty-one to a high of 120 during this period, EEOC did not present any evidence to show that any black male at the Philadelphia terminal, other than Mr. Ferguson, wanted to grow a beard because he suffered from PFB.⁵

EEOC could not contend, in the face of this data, that black males were underrepresented in Greyhound’s workforce. It argues, however, that a disparate impact case can be established without proof of a discriminatory effect on the workforce. In support of that proposition, it relies primarily on the following passage from Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978): “It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant’s race are already proportionately represented in the work force.” Id. at 579, 98 S.Ct. at 2950 (emphasis in original). Read in its context, however, Furnco does not support the Commission’s argument. Furnco was not a case of disparate impact, but a case of “disparate treatment” under the theory of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). There can be no doubt that each worker is entitled to equal treatment regardless of his race; hiring members of a racial group in proportion to its share of the population does not license an employer to treat subsequent applicants unfairly on account of their race. Furnco does not apply to the case before us, however, where there is no allegation of disparate treatment on account of race but only that a facially neutral policy has had a disparate impact.

We hold, therefore, that no violation of Title VII can be grounded on the disparate impact theory without proof that the questioned policy or practice has had a disproportionate impact on the employer’s workforce. This conclusion should be as obvious as it is tautological: there can be no disparate impact unless there is a disparate impact. Our holding agrees with that of the tenth circuit in EEOC v. Navajo Refining Co., 593 F.2d 988 (10th Cir. 1979). The employer in that case required a high school diploma or GED equivalent and a minimum score on an aptitude test as prerequisites for entry-level employment. Fewer Spanish surnamed Americans (SSA’s) than “Anglos” met these requirements, but Navajo used statistical adjustments to equalize the scores of the different groups. The district court enjoined use of the tests because they had a disparate impact, but the tenth circuit reversed because EEOC had not shown a disparity in actual employment. The evidence showed that SSA’s made up 23.2 percent of the available workforce, thirty percent of Navajo’s applicants, and thirty-eight percent of its new entry-level employees. The court recognized the disparity in the numbers of SSA’s and Ang-los who met Navajo’s requirements before the adjustments, but it saw no need to consider that point in the absence of discrimination in fact in actual numbers hired. Id. at 991. Similarly, in this case we need not consider the alleged disparate impact of Greyhound’s no-beard policy because there was no actual discrimination or disparity in its hiring. EEOC argues that Navajo Refining was wrongly decided. We disagree. “[Njonvalidated tests and subjective hiring procedures are not violative of Title VII per se. Title VII comes into play only when such practices result in discrimination.” Hester v. Southern Railway Co., 497 F.2d 1374, 1381 (5th Cir. 1974), quoted in Navajo Refining, 593 F.2d at 991.

III.

There is an additional reason, however, why this EEOC action must fail. Even if the evidence had shown that Greyhound employed proportionately fewer blacks than whites at its Philadelphia terminal, this would not make out a prima facie case of racial discrimination. To establish a prima facie case of employment discrimination under the disparate impact theory, the plaintiff must demonstrate a causal connection between the challenged policy or regulation and a racially unequal result. In other words, a policy does not have a disparate impact unless it is the cause of that impact. In this case the Commission has not demonstrated that Greyhound’s no-beard policy has a greater impact on blacks than on whites. EEOC argues that “[bjecause of PFB’s overwhelmingly greater prevalence among blacks than among other racial groups,” Greyhound’s policy “perforce excludes disproportionately more blacks than whites from its public-contact positions.” Appellee’s brief at 13-14. EEOC’s evidence, however, assuming that it was reliable, admissible, and probative, would support only a conclusion that PFB has a disproportionate impact on blacks. It has presented no evidence from which it logically may be inferred that Greyhound’s policy has a disproportionate impact.

The Commission presented statistical data relating to the incidence of PFB among young black males. It relied heavily on the expert testimony of Dr. A. Melvin Alexander, whose actual research consisted of examining only fifty black males admitted to a United States military hospital in Okinawa. He was permitted to refer also to two other studies which, like his, were limited to young black men, shaving beginners, either in the Army or in college.⁶ Based on a self devised gradation scale he testified that in his opinion approximately one half of those suffering from the condition, or, according to his own study, one-fourth of all blacks who shave, have a sufficiently severe case of PFB to be classified at least at “Grade II” and encounter moderate or serious shaving difficulty. On the basis of this evidence, EEOC concludes “that all PFB victims-or one-fourth of all blacks who shave-must grow beards to avoid aggravating their condition.”⁷ Ap-pellee’s brief at 20-21.

EEOC introduced evidence of the percentage of black males afflicted with PFB for the purpose of persuading the fact finder to draw the following inferences: (1) PFB victims are required to grow beards; (2) more black males would be eligible for public contact jobs if so many of them did not suffer from PFB; and (3) therefore, Greyhound’s no-beard policy has a disproportionate impact on black males.

A legitimate or permissible inference must be deduced as a logical consequence of facts presented in evidence. Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 325 F.2d 2, 22 (3d Cir. 1963). There must be a logical and rational connection between the basic facts presented in evidence and the ultimate fact to be inferred. EEOC’s evidence, relating to the incidence of PFB in black males, showed only that some black males are likely to grow beards because of this disease. It may be inferred from this that some black males would be eligible for public contact positions if they did not suffer from PFB. That is the only necessary or even permissible inference that can be drawn from this data. The evidence was insufficient to support the next inference, the ultimate fact essential to EEOC’s case: that proportionately fewer blacks than whites were eligible for public contact positions and therefore that Greyhound’s policy had a racially discriminatory impact. We cannot draw this inference because no evidence was introduced demonstrating that there is no skin condition or disease affecting white males-other than PFB-that makes shaving difficult or painful and requires them to grow beards. Without this evidence EEOC proved only that Ferguson was disadvantaged because he had PFB, not that he was disadvantaged because he was black.

The Commission has simply overlooked an important element of the decisions it cites. When the Supreme Court has found illegal discrimination on the basis of an employer’s use of a test or physical requirement to screen applicants, it invariably has compared the impact of the test or qualification on the majority with its impact on the minority alleging discrimination. See Do-thard v. Rawlinson, 433 U.S. 321, 329-30, 97 S.Ct. 2720, 2726-2727, 53 L.Ed.2d 786 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 430 & n.6, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). This case is analogous to Do-thard and Griggs. To establish a prima facie case, EEOC was required to prove that Greyhound’s policy had a greater impact on blacks than on whites. It has shown, at most, only that the policy weighed more heavily on individuals who have PFB than on those who do not. Without comparative statistics showing the percentage of white males who suffer from diseases or skin conditions that make shaving painful or impossible, EEOC’s evidence that many black males are unable to shave because of PFB simply does not permit the inference of a disproportionate impact.

In sum, to establish a disparate impact case here, EEOC first had to present much more dermatological information, adequately covering both white and black males, from a statistical universe large enough, to be respectable, dealing with both PFB and all other skin conditions affecting black and white males in the applicant pool; and second, it had to show that enforcement of the policy resulted in actual discrimination in the employer’s workforce.

The judgment of the district court will be reversed and the proceedings remanded with a direction to enter judgment in favor of the defendant.

1 . The district court found that Ferguson had a severe case of PFB and that growing a beard was the only effective remedy. EEOC v. Greyhound Lines, Inc., 494 F.Supp. 481, 483 (E.D.Pa. 1979). Greyhound argues that this finding is clearly erroneous. We find it unnecessary to resolve this dispute on appeal. See note 2, infra.

2 . The district court held that EEOC had established a prima facie case of unlawful discrimination and that Greyhound had failed to establish its defense of business necessity. EEOC v. Greyhound Lines, Inc., 494 F.Supp at 484-185. Because we conclude that EEOC failed to make out a prima facie case, we need not consider, and we specifically do not meet, Greyhound’s business purpose defense. See also note 1, supra.

3 . We have assumed, arguendo, that a prima facie case of racial discrimination might have been established by competent statistical evidence that a substantially disproportionate number of black males suffer from skin diseases or conditions that require them to wear beards. We are concerned, however, that the EEOC may have seriously misconceived the nature and purpose of both Title Vil and the disparate impact theory that has been built upon it. The history of the Civil Rights Act of 1964, of which Title VII is an important part, demonstrates that its purpose was to outlaw racial discrimination. The wearing of beards is not a characteristic that is peculiar to any race. Nor can the incidence of beard-wearing among black workers be attributed to a long history of inferior education in segregated schools, unlike the uneven test scores at issue in Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In short, had the issue been properly briefed and argued by the parties before us, it is possible that we may have been willing to hold that a policy against beards simply cannot constitute a Title VII violation. “Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply, and this Court has never held, that discrimination must always be inferred from such consequences.” City of Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 711 n.20, 98 S.Ct. 1370, 1377, 55 L.Ed.2d 657 (1978) (emphasis in original). However, we specifically do not meet this issue in these proceedings.

4 . Summary of Racial Composition of Male Work Force Greyhound Lines Inc.’s Philadelphia, Pa. Terminal Jobs Covered by Personal Appearance Code

Percentage Males in jobs Black males in of black males covered by jobs covered in jobs covered Reporting appearance by appearance by appearance date _code _code _code_

12-31-78 371 6-30-78 328 99 26.6% 85 25.9%

12-31-77 374 103 27.5%

6-30-77 386 99 25.6%

12-31-76 NOT AVAILABLE

6-30-76 426 113 26 5%

6-30-76 441 120 27.2%

12-34-75 403 96 23.8%

Percentage Males in jobs Black males in of black males covered by Reporting appearance date_code jobs covered in jobs covered >y appearance by appearance code_code_

9-30-75 403 95 23.5%

6-30-75 437 97 22.2%

3-31-75 408 99 24.3%

12-31-74 420 105 25 %

9-30-74 420 98 23 3%

6-30-74 ‘ 498 J26 25.3%

3-31-74 395 81 20.5%

Exh. D-17, App. at III — 214a. There are two entries for June 30, 1976, because prior to that date the no--beard rule applied to all employees in the terminal and after that date telephone information clerks and ticket office clerks were permitted to wear beards. The data take into account and reflect that change in policy. App. at II-193a-94a.

Greyhound introduced data from the 1970 census showing that 14.3% of the total males in the labor force in the Philadelphia SMSA are black. Exh. D-19, App. at III-240a. The 14.3 percent figure was calculated as follows:

Total Black Male Labor Force =* 178.553 = 14 3%

Total Male Labor Force 1.246.366

5 . EEOC argues that such evidence should not be required because a larger percentage of black males than white males are deterred from applying to Greyhound by the no-beard requirement. It relies on the following passage from Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977):

There is no requirement ... that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants.... The application process itself might not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory.

Id. at 330, 97 S.Ct. at 2727. EEOC builds on this passage the following argument:

Just as in Dothard, Greyhound’s actual workforce excludes those persons who would be most affected by its policy. Self-selection will prevent blacks with severe cases of PFB from applying to Greyhound or from being hired or from asking to transfer to public-contact positions. In fact, but for its policy, Greyhound’s workforce and applicant pool would be presumed to reflect the general population... . Accordingly, general population statistics are highly probative.

Appellee’s brief at 19. In the abstract we might not fault this theory. In this case, however, it is simply irrelevant. EEOC did not present “general population statistics” to the district court. Instead, as we note in part II of this opinion, it was Greyhound that adduced statistical evidence showing that it has not discriminated against black males in its hiring practices. In the face of that proof, the question of “self-selection” becomes immaterial. In addition, as we point out in part III, EEOC’s case was defective in that it introduced evidence only of the rate of PFB among blacks, without offering a comparison of the number of white males who are unable to shave because of skin conditions or diseases. The Commission’s evidence thus was inadequate to prove disproportionate self-selection, just as it was inadequate to prove any disproportionate direct impact.

6 . Dr. Alexander reported the results of a study conducted by Dr. Surinder Arora at Howard University, reporting that he found a PFB prevalence of 55 percent among 234 black males. Assuming the admissibility of this evidence, its probative value is minimal. That study did not indicate the incidence of the degree of the disease which would make shaving extremely painful or burdensome. App. at I-99a. He also testified to a study of 106 black shavers performed by Drs. Gary J. Brauner and Kenneth L. Flandermeyer, Army dermatologists. Although their report suggested generally that PFB was present in 83 percent of all blacks who shaved, 37 percent of their subjects showed no PFB papules (the condition making shaving uncomfortable), 16 percent showed some, and 47 percent showed moderate to severe. Exh. P-41 at 65. The study did not include a specific indication of Dr. Alexander’s self-styled Grade II, the extent of the condition requiring the growth of a beard.

7 . For the purpose of deciding this appeal, we assume that a study of fifty black American soldiers in Okinawa and 106 college students in Washington, D.C., is sufficiently respectable evidence to establish the physical conditions of 178,553 black males in Philadelphia; but we consider statistics from such a tiny universe tenuous at best. Similarly, we question whether evidence relating to the incidence of PFB in young black men who are beginning shavers is probative of its prevalence in the black male population as a whole. Cf. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974) (simplistic percentage comparisons lacked real meaning in the context of the case; plaintiffs’ proof was too fragmentary and speculative to support a serious charge in a judicial proceeding).