Mary R. CHRISNER, Plaintiff-Appellee, v. COMPLETE AUTO TRANSIT, INC., Defendant-Appellant

645 F.2d 1251, 25 Fair Empl. Prac. Cas. (BNA) 484, 1981 U.S. App. LEXIS 19098, 25 Empl. Prac. Dec. (CCH) 31,669

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 19, 1981
• Docket: 78-1337
• Status: Published

Opinions

CELEBREZZE, Senior Circuit Judge.

Complete Auto Transit appeals from a judgment finding it in violation of Sec. 703(a)(2) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq. The district court held Complete Auto responsible for illegal sex discrimination against plaintiff Mary Chrisner when it failed to hire her for a position as yard employee. It ruled that Complete Auto’s hiring policies concerning truck-driving yard employees were violative of Title VII.

The action was brought against Complete Auto Transit by Ms. Mary Chrisner in the United States District Court for the Eastern District of Michigan. Complete Auto is a Michigan corporation engaged in the business of transporting new automobiles by tractor-trailer combinations from the point of manufacture to dealers across the country. To facilitate the transfer of the new automobiles, Complete Auto operates terminals throughout the nation. Only its Willow Run terminal in Ypsilanti, Michigan is involved in the present case.

The Willow Run Terminal is adjacent to a General Motors automobile manufacturing plant. As new cars come off the G.M. assembly lines, the vehicles are driven to Complete Auto’s terminal, where yard employees working on the “release gate crew” receive and inspect the vehicles, assign them special identification numbers, and transport them to a yard marshalling area. The new vehicles are subsequently taken to a dock area and loaded onto large tractor-trailer combinations. These trucks then deliver the automobiles, and after completing delivery, the standard operating procedure is for the driver to deposit his empty tractor-trailer in the terminal yard for reloading. The volume is sufficiently great that as many as eight empty trucks can accumulate before the beginning of the first shift. In order for loading operations to commence in an orderly fashion, the trucks must be jockeyed about the yard and, when necessary, driven to an' overflow lot. Rearranging the trucks in the yard and driving them to the overflow lot is an important, albeit minor, responsibility of the yard employees.

In 1973, General Motors increased production at the plants served by the Willow Run terminal to an extent that Complete Auto's existent facilities were unable to accommodate the stepped-up production. In an attempt to handle the overflow, Complete Auto acquired space at the Willow Run Airport, which is, using the public highways, about one mile from the terminal. The acquisition of space at the airport meant that yard employees would have to transport the tractor-trailers from the terminal to the overflow lot using public highways. When operations were confined to the terminal the driving of the large trucks by yard employees was also restricted to that area.

In response to this change in operating procedure, as well as union pressure regarding periodic layoffs of yard employees who could not be transferred to a truck driving position because they were not qualified, Complete Auto implemented a new hiring requirement for yard employees: to merit consideration a prospective yard employee needed to have two years of truck driving experience or have completed a course of study at a truck driving school. These prerequisites were not retroactively imposed on employees working in the yard in 1973 because provisions in the collective bargaining agreement would not allow such a change.

On February 11, 1976, Mary Chrisner applied for a position as a yard employee at the Willow Run terminal. She had not attended or completed truck driving school and did not have the requisite two years of truck driving experience. Complete Auto rejected Chrisner’s application because she failed to meet either job requirement.¹

In August, 1976, the Willow Run terminal experienced a wildcat strike by an estimated 80 or 90 employees. Economic pressures generated by this wildcat strike forced Complete Auto to abandon temporarily its policy of requiring applicants to possess either two years experience or appropriate schooling in order to gain employment as a yard employee. The company decided that it would, during the duration of the strike, train the employees in the operation of tractor-trailers. Nine new persons, including Ms. Chrisner, were hired to work in the yard during the strike. Ms. Chrisner’s employment, together with that of seven other temporary employees, was terminated at the end of the strike. The remaining temporary employee was released one week later.

After the strike had ended the company did not revert to the more stringent qualifications for yard employees. Instead, Complete Auto required only a chauffeur’s license and a physical examination. If necessary, new yard employees received on-the-job training from the company to drive the tractor-trailers.

In April, 1977, Ms. Chrisner filed the present action alleging that Complete Auto’s initial refusal to hire her for the job of yard employee was a decision based solely on her gender. After a trial before a United States Magistrate, the District Court examined the record and concluded that the plaintiff had established a prima facie case of disparate impact discrimina-pon and that the defendant had not successfully rebutted that case by establishing ■a business necessity defense. Specifically, the district court found that the two year ¡experience requirement acted as a “grandfather clause” in perpetuating the exclusion .of females from the trucking industry. The court also concluded that alternatives were available to Complete Auto which would have accomplished Complete Auto’s stated goals while minimizing the discriminatory impact of its job requirements. In its final judgment order, the court ordered Complete Auto to pay Ms. Chrisner $35,742.18 in .back pay, $6,000.00 in attorneys’ fees and jcosts of $417.62; Complete Auto was also ordered to cease discriminatory action against Ms. Chrisner, to offer her a job as a yard employee with retroactive seniority and all fringe benefits according to a seniority date of April 28, 1976.

I.

The ultimate goal of Title VII is the elimination of “discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). The same goal is equally applicable to sex discrimination. Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). In enacting Title VII, Congress required “the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).

Title VII cases comprise a tripartite life cycle. The initial burden on a Title VII plaintiff is to establish a prima facie case of employment discrimination. The burden then shifts to the defendant to prove or demonstrate a defense to the apparent discrimination. If the defendant successfully rebuts the prima facie case, the burden then shifts back to the plaintiff to show that there are alternative available selection devices without similar discriminatory effect which would also serve the employer’s legitimate interest in efficient and trustworthy workmanship.

Under the current law surrounding Title VII, two separate but related theories are available to prove a prima facie case of employment discrimination: disparate impact and disparate treatment. “Disparate treatment ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Undoubtedly, disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.” Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396. Claims of disparate treatment may be distinguished from claims that stress disparate impact. Disparate impact cases involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, the Supreme Court has held, is not required under a disparate impact theory. Compare Griggs, supra, 401 U.S. at 430-32, 91 S.Ct. at 853-54 with McDonnell Douglas, supra, 411 U.S. at 802-806,93 S.Ct. at 1824-1826. Either theory may, of course, be applied to a, particular set of facts. Teamsters v. United .States, 431 U.S. at 335-36, n. 15, 97 S.Ct. at 1854-55 n. 15.

Central to both theories of liability where sex discrimination is alleged is the existence of an identifiable employment practice or policy that demonstrably affects all members of a class in a substantially similar, if not an identical manner. In disparate treatment cases, this is the pattern or practice followed as an employer’s regular or standard operating procedure which treats women in relatively unfavorable ways so that it justifies a rebuttable inference that it proceeds from an intention to treat them differently simply because of their sex. See Teamsters, supra, at 336, 97 S.Ct. at 1855. In disparate impact cases, it is the practice or policy which, although theoretically neutral or benign in a sex related context, nevertheless has a disproportionate adverse impact upon females without any justification of business necessity. Disparate impact analysis is properly applied where the discrimination results not from the decision to employ a challenged practice, but from its effect. In the instant case the plaintiff does not challenge Complete Auto’s decision implementing the schooling or experience requirements. Rather, the focus is on the effect of those hiring requirements.

The thrust of the claim that the two year experience or schooling requirements discriminate against women does not involve an assertion of purposeful discriminatory motive. What Ms. Chrisner does contend is that these facially neutral prerequisites operate disproportionately to exclude women from eligibility for employment as yard employees with Complete Auto. To establish a prima facie case, she need only show that these employment standards select applicants for hire in a significantly discriminatory pattern. Dothard, supra, 433 U.S. at 329, 97 S.Ct. at 2726; Griggs, supra, 401 U.S. at 432, 91 S.Ct. at 854.² See also New York City Transit Authority v. Beazer, 440 U.S. 568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979).

The evidence in the record indicated that a study by the American Trucking Association based on 1970 Census data showed that only one half of one percent (.5%) of all truck drivers were female.³ In considering the effect of the two year experience requirement, the district court concluded that it served to perpetuate the exclusion of females from the trucking industry. The proper focus when determining impact is on those excluded by the requirement. Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 899 (5th Cir. 1978).⁴ The experience requirement automatically disqualifies all people who have not accumulated two years of experience driving a truck, a vast majority of whom would be females given their gross underrepresentation in the trucking industry when the experience requirement was implemented in 1973. Complete Auto’s representative testified that the company’s statistics for female employment paralleled the national figures, noting that he could recollect Complete Auto’s non-office females because they were “unique,” meaning few and far between.

Complete Auto argues that a showing of scant participation by women in the trucking industry based on generalized national statistics does not establish a prima facie case of the two year experience requirement’s disproportionate impact on women. In particular, it points to Chrisner’s failure to adduce statistics as to how many or what percentage of females could not have satisfied this qualification, or as to what percentage of males were excluded from employment in the yard based on this requirement. See Hazelwood School District v. U. S., 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). In Hazelwood, the Supreme Court approved the use of comparative statistics showing a narrow labor pool defined by those qualified for employment to particular jobs available. The Court explained that “when special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.” 433 U.S. at 309 n. 13, 97 S.Ct. at 2742 n. 13. On the other hand, where the job skills in question are the kind that “many persons possess or can fairly readily acquire,” general population data has proved acceptable. Hazel-wood, supra, at 308 n. 13, 97 S.Ct. at 2742 n. 13. See also Teamsters, supra. Indeed, in

Hazelwood the Court noted that truck driving, the skill in question in Teamsters and here, was one readily acquired, and therefore the use of general population data was acceptable.⁵ Accordingly, a prima facie case may be established without evidence of qualifications where the inference of discrimination is supported by a compelling level of female underrepresentation in a sizeable work force. See e. g., Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527, 544 (5th Cir. 1980).⁶ Statistics concerning low female participation in an industry may be relied upon to show unequal access to that industry. In setting up a prima facie case, Chrisner was not required to provide statistical figures as to the percentage of applicants, male and female, which would be automatically disqualified by the two year experience requirement in light of the alternative statistical evidence presented. The 1970 statistical imbalance between male and female participation in the industry is sufficiently probative to allow an inference that a substantially greater percentage of females would not be able to meet the experience criterion. It was for the district court in the first instance to determine whether these statistics permitted an inference as to whether the experience requirement had a disparate impact on females.⁷ Although the district court’s inference was not compelled by the data presented by the plaintiff, we are unable to conclude that its finding in this respect was clearly erroneous. See e. g. Marsh v. Eaton Corp., 639 F.2d 328 (6th Cir. 1981). Complete Auto was free to present evidence that its entry level hiring policy was not a distinctive circumstance supporting the inference of discrimination. It did not offer such countervailing evidence. Under the “clearly erroneous” standard of review, we see no basis for disturbing the district court’s factual findings which led to the conclusion that the two year experience requirement had a discriminatory impact on female applicants.

II.

We now turn to the appellant’s contention that the challenged hiring practices are founded upon business necessity. To justify its hiring requirements as a business necessity, Complete Auto must show that its practices bear a manifest relationship to the yard workers’ employment— that the practices are related to their job performance. Dothard, supra, 433 U.S. at 329, 97 S.Ct. at 2726, quoting Griggs, supra, 401 U.S. at 432, 91 S.Ct. at 854; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas, supra, 411 U.S. at 801, 93 S.Ct. at 1823; Horace v. City of Pontiac, 624 F.2d 765, 768 (6th Cir. 1980). If the job related qualifications are bona fide, they may “measure the person for the job and not the person in the abstract. Dothard, supra, 433 U.S. at 332, 97 S.Ct. at 2728 quoting Griggs, supra, 401 U.S. at 436, 91 S.Ct. at 856.

A close reading of the record reveals that the district court misconceived the nature of the business necessity defense and the corresponding quantum of proof necessary to corroborate that defense. The court below stated:

“Now, certainly it is not the function of the court to suggest or to minimize the suggestion that anyone who takes a truck out on the public highway ought to be completely qualified and bear in mind the economic impact of the company as a result of accidents and so forth that the company would be entitled to say we don’t want our trucks taken out on the highway without there being a qualified driver at the wheel is certainly a compelling business necessity. However, in terms of this case, I don’t find that there was a compelling business necessity as that term is described in Duke Power and the other cases that would override this otherwise neutral and otherwise appropriate company requirement ... so there is a disparate impact and the requirement in my opinion does not — is not for a sufficient compelling reason. There were alternatives available to the company ...”

In other words, the District Judge rejected Complete Auto’s business necessity defense solely because he believed that the company had not shown the unavailability of alternative hiring procedures which would have less of an adverse impact on female applicants. This truncated analysis misconstrues the shifting burdens of employment discrimination law. In disparate impact cases, a Title VII defendant does not bear the burden of showing that its practice or policy embodies the concept of least discriminating alternative. Complete Auto should not have been compelled to disprove the existence of feasible, alternative methods for hiring yard employees. To the contrary, Ms. Chrisner bears the burden of affirmatively proving the existence of an alternative with a lesser disparate impact. The district court’s analysis unjustifiably collapsed the three-step test employed in Griggs into a two-step examination in which the defendant, in order to successfully establish a business necessity defense, was burdened with proving to the court’s satisfaction that its hiring requirements would have the least disparate impact of all conceivable requirements which satisfactorily measure applicants for employment. By placing too great of a burden on the defendant, this analysis renders the third step of the Title VII inquiry superfluous.⁸ The correct approach requires that the defendant attempt to rebut the prima facie case of employment discrimination by showing that its hiring policy is “manifestly related” to the job requirements. If the manifest relation is shown, then the business necessity defense is complete and the burden then shifts to the plaintiff to show that there are alternative selection devices without a similar discriminatory effect which would also serve the legitimate needs of the employer.

Misunderstanding of this bifurcated approach may well be engendered by the appellation of the defense itself. Literally construed, it would not be unreasonable to conclude that proof of a “business necessity” defense requires a showing that the practice is absolutely necessary or inherently essential to the operation of the business.⁹ Such a standard, however, would direct unwarranted strict scrutiny at the defendant’s asserted justifications and has not been adopted by the Supreme Court. The proper test, as we see it, is the “manifest relationship” test enunciated in Griggs and its progeny which looks to whether the discriminatory employment practice is necessary to safe and efficient job performance. Dothard, supra, 433 U.S. at 332 n. 14, 97 S.Ct. at 2728 n. 14. For a practice to be “necessary” however, it need not be the sine qua non of job performance; indispensability is not the touchstone. Rather, the practice must substantially promote the proficient operation of the business.

Application of the business necessity defense entails considerations which are a function of the job’s demands. In this regard, positions can be evaluated according to their location on the type of spectrum described in Spurlock v. United Airlines, 475 F.2d 216, 219 (10th Cir. 1972):

When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminates against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court’s satisfaction that his employment criteria are job related. On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job related.

In Spurlock, the Tenth Circuit agreed with United’s contention that 500 hours of flight time was a reasonable minimum requirement to insure that applicants passed the flight officer training program. Since a flight officer is ultimately responsible for the safety of passengers as well as costly aircraft, the public interest is paramount, justifying high employment standards. An industry with the primary function of managing the safety of large numbers of passengers must be allowed more latitude in structuring the requirements which could effect the performance of a primary business objective. See Burwell v. Eastern Airlines, 633 F.2d 361 (4th Cir. 1980) (en banc). At the other end of the spectrum, where considerations of public safety are negligible, employment standards are appropriately less demanding. For example, requirements of sales experience and sales motivation for entry into a securities sales representative training program failed to satisfy the business necessity standard. Kinsey v. First Regional Securities, Inc., 557 F.2d 830, 837 (D.C.Cir. 1977).

Complete Auto argues that its experience/schooling criteria were reasonable minimum requirements to insure that yard employees were qualified to operate tractor trailers on the public highways in a safe and efficient manner. The yard employees are called upon to drive tractor-trailers to the overflow lot over the public highways. The performance of this task in a satisfactory manner requires a certain degree of skill in operating the tractor-trailers. The company’s goal of transporting its freight in a safe and efficient manner is significantly served by hiring experienced truck operators. An individual who possesses experience in driving large, unwieldy vehicles is obviously a more rational choice for the job than is a person who does not have demonstrated ability to drive such vehicles. In this respect, the experience requirement accurately reflects the capacity of an applicant to do the job for which he is applying. There is some risk to the public safety, as well as to the driver and truck, in the employment of an unqualified yard employee. The important public interest in safety on the roads and highways, see Mackey v. Montrym, 443 U.S. 1, 18, 99 S.Ct. 2612, 2621, 61 L.Ed.2d 321 (1979); Dixson v. Love, 431 U.S. 105, 114, 97 S.Ct. 1723, 1728, 52 L.Ed.2d 172 (1977), is sufficiently weighty to convince us that Complete Auto’s experience requirement for yard employees is manifestly related to the safe and efficient operation of its business of transporting automobiles over the public highways.

III.

Once the defendant in a Title VII disparate impact case has rebutted the plaintiff’s prima facie case by proving a business necessity defense to the challenged practice, the burden shifts back to the plaintiff. To establish liability at this point, the plaintiff must demonstrate that there is an alternative selection device with a disparate impact less than that of the challenged practice which would still serve the employer’s legitimate interests in efficiency and trustworthy workmanship. Griggs, supra, 401 U.S. at 432, 91 S.Ct. at 854; Albemarle, supra, 422 U.S. at 425, 95 S.Ct. at 2375. Because the district court failed to consider this as a separate stage in the analytical framework of the case, we remand the case for the court to conduct a hearing on this issue. In determining whether the plaintiff has sustained her burden in proving the existence of a viable alternative hiring procedure, the court should consider evidence that the plaintiff might introduce on a variety of factors. Certainly any subsequent practices adopted by the company would be relevant. The hiring policies of comparable businesses might also shed some light on what constitutes a feasible alternative. Of course, the marginal cost of another hiring policy and its implications for public safety are factors which should not be omitted from consideration. In any event, the initial determination must rest with the trial court.¹⁰

The decision of the district court is affirmed in part and vacated and remanded in part.

1 . The parties stipulated that the sole basis for the rejection of plaintiffs job application was the fact that she failed to have either prerequisite required by Complete Auto.

2 . The correct focus is on the aggregate impact of the combined qualifications. Smith v. Troy-an, 520 F.2d 492, 498 (6th Cir. 1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976). Of course, the plaintiff does not have to show a disparate character in both aspects of the job selection scheme in order to demonstrate that the overall policy had a disparate impact on women. For instance, if the company selected roughly equal numbers of applicants from the “experience pool” and the “school pool,” and the “experience pool” were made up of a disproportionately large number of men, then the “school pool” would have to be disproportionately female in order for the policy as a whole not to have disparate impact. Here, the Magistrate found that the disparate effect of the experience requirement was only “partly tempered by the alternative requirement that a person with a certificate from a truck driving school would also be considered for employment.” Therefore, the Magistrate found that the company’s selection policy overall had a disparate effect, because there was no reason to believe the “school pool” was disproportionately female.

3 . “Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though Sec. 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population.” Teamsters, supra, 431 U.S. at 339-40 n. 20, 97 S.Ct. at 1856-57 n. 20.

Complete Auto complains that the vitality of the 1970 statistic was sapped by the passage of time, rendering that figure too unreliable for use in a prima facie case. While we have some second thoughts about the use of employment information which was eight years old at the time of trial, particularly in view of the profound changes in society’s attitudes and practices during the 1970’s, we think the evidence, given the gross disparity, was sufficiently probative so as to allow its use here.

4 . The EEOC’s Uniform Guidelines on Employee Selection Procedures (1978) indicate that a selection rate for any identifiable group i.e. (women) which is less than four fifths (80%) of the group with the highest rate (men) will generally be regarded as evidence of adverse impact. 29 C.F.R. Sec. 1607.4(D). For a valuable discussion of these guidelines, see Guardians Assn. v. Civil Service Comm., 630 F.2d 79, 90-106 (2d Cir. 1980).

5 . Where the existence of necessary qualifications is not readily apparent, the burden is on the defendant to demonstrate that “the positions do in fact require special qualifications not possessed or readily acquired by the general population.” EEOC v. Radiator Specialty Corp., 610 F.2d 178, 185 (4th Cir. 1979); Ka-plan v. International Alliance of Theatrical and Stage Employees, 525 F.2d 1354, 1358 n. 1 (9th Cir. 1975); United States v. Hayes International Corp., 456 F.2d 112, 120 (5th Cir. 1972).

6 . Cf. Greenspan v. Automobile Club of Michigan, 495 F.Supp. 1021 (E.D.Mich.1980) (employer that has disproportionately low number of female employees in professional, technical, and sales job violated Title VII by, among other things, reliance on unvalidated job requirements, including requirement of experience in jobs open recently only to men, by absence of systematic job description and evaluation system, and by policy of vesting managers with large degree of unsupervised discretion in matters of personnel selection); Thompson v. Boyle, 499 F.Supp. 1147 (D.D.C.1980) (court rejects argument that statistics concerning low female participation in bookbinder program may not be relied upon to show unequal access to the program).

7 . Statistical evidence may establish a prima facie case of employment discrimination in an individual action as well as in a class action. Davis v. Califano, 613 F.2d 957, 962-63 (D.C. Cir. 1980).

8 . In Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), the Supreme Court vacated and remanded the First Circuit’s decision in a disparate treatment case because it appeared that the Court of Appeals had imposed a heavier burden on the employer than Fumco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) required with respect to meeting the employee’s prima facie case of discrimination. Although the Court of Appeal’s analysis was unclear, it apparently had burdened the employer with proving the absence of a discriminatory motive instead of simply requiring the articulation of some legitimate, non-discriminatory reason for the employee’s rejection. This construction was erroneous because it made superfluous the third step in the Fumco-McDonneil Douglas analysis; it would place on the employer at the second stage the burden of showing that the reason for rejection was not a pretext, rather than requiring such proof from the employee as a part of the third step. Because these burdens of proof are distinctly different, Sweeney, supra, at 25, the Supreme Court believed it necessary to remand the case for reconsideration in light of Fumco. See also Texas Dept. of Community Affairs v. Burdine, -U.S. -, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Sweeney suggests that a remand for reconsideration of Complete Auto’s business necessity defense might be appropriate because the district court condensed the relevant three stage analysis into two steps and went awry by imposing the burden on the employer to disprove the existence of an available alternative instead of requiring the plaintiff to prove such an option was within reach. That error, however, belies the necessity for a remand on this point. The district court specifically found that having “a qualified driver at the wheel is certainly a compelling business necessity,” and that but for the availability of a policy with less of a disparate impact, the experience prerequisite was an “otherwise neutral and otherwise appropriate company requirement.” These findings persuade us that the district court found the company’s hiring policy was manifestly related to the job requirements. On the record before us we cannot characterize these findings as erroneous. And the failure of the trial judge to couch his findings in the precise language of Griggs does not necessitate a remand. See James v. Newspaper Agency Corp., 591 F.2d 579, 583 (10th Cir. 1979).

9 . For example, in requiring that there exist more than a business purpose for adhering to a practice, courts have demanded the presence of an overriding and compelling business purpose. Kirby v. Colony Fum. Co., 613 F.2d 696 (8th Cir. 1980) (“The proper standard is ... whether there is a compelling need for the employer to maintain that practice and whether the employer can prove there is no alternative to the challenged practice.”); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1389 (5th Cir. 1978). Head v. Timken Roller Bearing Co., 486 F.2d 870, 879 (6th Cir. 1973). Campbell v. Ramsey, 484 F.Supp. 190, 194 (E.D.Ark. 1980). The genesis of this approach appears to be Robinson v. Lorillard Co., 444 F.2d 791, 798 (4th Cir.), cert. dismissed 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971).

The dissent argues that the force of Sweeney, supra, necessitates a remand because the district court did not make the requisite findings on the business necessity defense when it condensed the Title VII analysis into two steps. Nevertheless, it proceeds to assert that under Head v. Timken Roller Bearing, supra, the employer has not established a business necessity defense because the company subsequently used alternative selection devices. The dissent concedes the flaw in its analysis by ignoring the full force of Sweeney. Decided by the Supreme Court five years after Head, Sweeney stands for the proposition that the three-part Title VII analysis cannot properly be conducted in only two stages. The dissent’s approach, which compels an employer to prove a business necessity defense by showing that there exist no less discriminatory alternatives, is, in essence, a two-stage analysis since it renders the third step superfluous. If an employer does prove a business necessity defense, that is, there are no alternative policies with a lesser discriminatory impact, a plaintiff would thereby be precluded from attempting to show that there are available alternatives — the crucial third stage of Title VII analysis. Griggs does not countenance denying a plaintiff the opportunity to rebut a business necessity defense under any circumstances, but that is precisely the result invited by the dissent’s approach. An equally unsatisfactory result accrues when the other possibility is considered. If an employer does not prove the absence of alternative policies, that would be the equivalent of affirmatively establishing that there are, in fact, viable alternatives. The burden of establishing the presence of available alternatives, however, belongs only to the plaintiff and must be sustained in the third stage of the analysis. Such an erroneous allocation of the burden of proof is exactly the practice rejected by Sweeney.

This illustrates the dilemma the dissent puts itself in by arguing that a remand is necessary under Sweeney because the trial court collapsed the three step inquiry into two steps, and at the same time relying on Head v. Tim-ken Roller Bearing which commands a two-step analysis. The dissent omits the full language of Head, which reads:

The court’s error arose from its failure to take into account one necessary element of the test. The test consists of two discrete parts as set forth in Robinson v. Lorillard Co., 444 F.2d at 798:

The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact, (emphasis added).

Insofar as any two-part test is inconsistent with the three-part analysis outlined in Griggs and McDonnell Douglas and reinforced by Sweeney, it must be discarded.

The dissent’s insistence that Head has been “consistently followed” cannot withstand the scrutiny of closer analysis. In Horace v. City of Pontiac, supra, this court did not cite Head, but rather quoted the three part test of Griggs and McDonnell Douglas. The only reference to Head appears in a block quote of the district court’s opinion. 624 F.2d at 768. In Mitchell v. Mid-Continent Spring Co., 583 F.2d 275 (6th Cir. 1978), Head was cited only for the proposition that females must have equal employment opportunities. 583 F.2d at 281. In EEOC v. New York Times Broadcasting Service, Inc., 542 F.2d 356 (6th Cir. 1976), Head’s two-step process was, in fact, followed. 542 F.2d at 361. That was not true, however, in EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975), where the court relied on Head solely for the principle that when a seniority system locks a minority of black employees into low opportunity areas of work, while protecting the status of those of the majority, it must give way. 515 F.2d at 313. And in Palmer v. General Mills, Inc., 513 F.2d 1040 (6th Cir. 1975), the court divided Head’s second step into three sub-parts, holding that the essential finding was that the seniority practice at issue was not of compelling importance to the company’s business, that whether the practice effectively carried out a business purpose was irrelevant because the challenge was directed at a facially neutral policy, and that the availability of alternatives was pertinent only to the remedy, not to liability. 513 F.2d at 1044. This “long line of subsequent decisions” hardly constitutes a litany of faithful adherence to Head as suggested by the dissent.

10 . Complete Auto relies on the recent decision in Fumco, supra, for the proposition that courts should not restructure business practices unless mandated by Congress to do so. The Supreme Court stated with regard to the employer’s burden for articulating a legitimate non-discriminatory reason for the rejection of the plaintiff, that “to prove that, he need not prove that he pursued the course which would both enable him to achieve his own business goal and allow him to consider the most employment applications. Title VII prohibits him from having as a goal a work force selected by any proscribed discriminatory practice, but it does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees.” 438 U.S. at 577-78, 98 S.Ct. at 2949-50. The inquiry is not terminated, however, by the demonstration of such a legitimate non-discriminatory reason. The plaintiff may then show that the proffered justification was merely a pretext for discrimination. The disparate treatment analysis in Fumco does imply that the plaintiff cannot establish a “pretext” by showing that alternative procedures for hiring more minorities were available. Thus, in disparate treatment cases it is true that courts should not restructure business practices unless a violation of Title VII is well established. On the other hand, in a disparate impact case a plaintiff may still establish a case of employment discrimination by demonstrating that there were alternative selection devices available that would have less of a disparate impact than the hiring procedures employed by the company.