3. Combined Effect of Plaintiffs' Applicant Flow and Relevant Labor Market Statistics
31. The applicant flow and relevant labor market statistics offered by plaintiffs, when viewed together, establish a prima facie claim that the overall apprenticeship selection process discriminates against black applicants. The Court has warned that "precise calculations of statistical significance are (not) necessary in employing statistical proof (in Title VII cases) . . .." Hazelwood School District v. United States, 433 U.S. 299, 311 n.17, 97 S. Ct. 2736, 2743-2744, 53 L. Ed. 2d 768 (1977). Plaintiffs' evidence derived from the 1979 apprentice class actual applicant data and work force comparisons brings this court to the verge of rejecting the hypothesis that the observed disparity was caused by chance. When this 1979 data is augmented by the 1971-79 data and collateral information about the selection process, plaintiffs' prima facie claim for all three selection criteria prevails.
32. Although the 1971-79 data may, to some extent, reflect selection criteria no longer in effect, there are reasonable grounds for assuming that a good portion of the additional discriminatory impact arising out of those years is due to all three criteria at issue in this case. The actual disparate impact of the interview has been established; the projected disparate impact of the high school requirement and arrest inquiry is clear. Plaintiffs' actual applicant data and relevant labor market figures now provide a proper foundation for attributing practical significance to these projected exclusionary rates. Interested black applicants exceeded the percentage of blacks in the general population and percentage of blacks chosen as apprentices. The disparity in the pre-1979 classes between interested black applicants and black apprentices cannot be attributed solely to selection factors no longer in existence, or the interview operating alone. See Pl.Ex. 121 (First Joint Stipulation on Underlying Statistics) (isolating disparate impact of GATB and age requirements); Vulcan Society v. Civil Service Commission, 490 F.2d 387, 392 (2nd Cir. 1973).
33. Moreover, plaintiffs have supplemented the projected exclusionary effect of the high school requirement with actual applicant figures. From 1968-76, blacks were rejected for failing to produce a high school diploma at three times the rate of whites. Plaintiffs' Memorandum, Table D. Although similar figures were not submitted for the arrest inquiry, it is reasonable to assume that some portion of the projected exclusionary impact was experienced in practice. The defendants have offered no evidence rebutting the conclusion that the present criteria contributed in part to the disparate impact observed in 1971-79 and that the high school requirement and arrest inquiry, in addition to the interview, were responsible for this result. In short, the plaintiffs have established the overall discriminatory impact of the selection procedure and the three components challenged in this action. See 41 C.F.R. § 60-3.4(c) (1979) (if total selection process has adverse impact, individual components should be evaluated).
34. It is also important not to lose sight of collateral evidence adding flesh to plaintiffs' statistical skeleton. Statistical Proof, supra, at § 9.0. Local 102 has less than 5% minority membership. Supra at 956. Since the mid-1960's applicants have been subject to screening criteria not applied to older members of the union. Id. 957-958. In recent years, the qualifications of black applicants have not been registered properly by individuals administering the program, id. at 961; more disturbingly, black applicants meeting the threshold qualifications have been rejected from the program in a cavalier manner; id. at 961-962. This actual conduct is another factor underlying the finding of a prima facie claim.
II. The "Business Necessity" Defense
35. The defendants must now justify the use of their selection criteria. While Title VII prohibits employment discrimination, it permits an employer to give and act upon "the results of any professionally developed ability test." 42 U.S.C. § 2000e-2(h) (1976). In Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), the Court set the scope of this section and the burden an employer must meet to use selection criteria having a disparate impact on minority applicants.
36. This section was construed to apply to tests and other criteria for employment, e.g., high school diploma, that acted as "fixed measures of capability." 401 U.S. at 433, 91 S. Ct. at 854. This approach has been adopted by the E.E.O.C. which defines "test" to include "specific educational or work history requirements," "scored interviews," and "biographical information blanks." 29 C.F.R. § 1607.2 (1978). The high school requirement, arrest inquiry, and scored interview at issue qualify as the type of selection criteria identified in Griggs and by the E.E.O.C. Second, the Griggs Court required the employer to show that the selection criteria bear a "demonstrable relationship to successful performance of the jobs for which it was used." 401 U.S. at 431, 91 S. Ct. at 853. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975), the Court made it clear that the relationship between selection criteria and job performance was not to be taken at face value; "job relatedness" was to be established only after a thorough examination of the employer's operations, the history of the selection criterion under attack, and the validation guidelines promulgated by the E.E.O.C. Id. at 427, 430-36, 95 S. Ct. at 2376, 2377-80. Even if selection criteria were found to be "job related," the Court in Albemarle suggested that less restrictive selection devices might be required. Id. at 425, 95 S. Ct. at 2375.
37. The defendants' have concentrated on the high school requirement, with the interview and arrest inquiry receiving rather cursory justifications.
a. "Job Relatedness" of the High School Diploma Requirement
38. Neither the operations of Local 102 nor the history behind the high school requirement support the job relatedness of the criterion. The requirement was adopted in the mid-1960's without any validation study, id. at 428, 95 S. Ct. at 2376, and many members of the union without high school diplomas appear to have performed their jobs adequately, Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S. Ct. 849, 853, 28 L. Ed. 2d 158 (1971). Indeed, plaintiffs' testimony established that the majority of sheet metal workers throughout the country lack high school diplomas.
39. The defendants contend that this educational portrait of the sheet metal industry is misleading. According to the defendants, Local 102 is engaged in the most demanding aspect of the sheet metal trade commercial sheet metal fabrication and installation in the building and construction industry. Union members are expected to display superior expertise and ability in the performance of their duties, and their salaries reflect the premium attributed to these talents. While some union members without high school diplomas have acquired these skills over the years, only apprenticeship applicants with high school diplomas can be expected to master promptly the classroom exercises, and apply their new knowledge to the demands of the job site.
40. Under Griggs and Albemarle, these general contentions must rest on professional validation studies indicating a significant correlation between the high school diploma and performance in the apprenticeship program. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 430-31, 95 S. Ct. 2362, 2377-78, 45 L. Ed. 2d 280 (1975); 29 C.F.R. § 1607.3 (1978) (criteria must be validated); cf. 41 C.F.R. § 60-3.3 (1979) (same) (standards regarding selection criteria used by federal contractors).
41. The defendants have attempted to validate the high school requirement through "construct validation." This validation process centers on identifying general mental and psychological traits determined to be important in job performance ("constructs"), and then showing that the selection criteria is validly related to the construct. Douglas v. Hampton, 168 U.S. App. D.C. 62, 512 F.2d 976, 984 (D.C. Cir. 1975); Vulcan Society v. Civil Service Commission, 490 F.2d 387, 395 (2nd Cir. 1973). As this short description indicates, construct validity involves a two-step process. The construct must be suitably related to the job in question and the selection criteria must reflect the construct. Douglas v. Hampton, 168 U.S. App. D.C. 62, 512 F.2d 976, 985-86 (D.C. Cir. 1975).
42. There are two problems with the use of construct validation. First, construct validation is more complex than other validation techniques, and not well recognized as a means of satisfying the Griggs standard of job relatedness. Id. at 985 & n.73; 41 C.F.R. 60-3.14(D)(1) (1979). In Douglas v. Hampton, the Court of Appeals for the District of Columbia held that construct validity may be considered only after a showing that it is infeasible to use criterion validation techniques. The defendants failed to show that criterion validation could not be applied to the high school requirement.
43. Even if criterion validation was infeasible, the defendants' construct validation cannot withstand careful scrutiny. The key to construct validation is insuring that the job is properly represented by the construct, and the construct by the selection criteria. Supra at 971. Defendants used two constructs: "general learning ability" and "readability." Neither construct properly reflected the job in question, i. e. a position in the apprenticeship program. 29 C.F.R. § 1607.5(a) (1978). "General learning ability" was based on a job profile prepared by sheet metal workers and reflecting tasks performed on the job site. The proper job analyses would have centered on the demands and characteristics of the apprenticeship program. The "construct" reflected job qualifications required of experienced workers, not raw recruits subject to a four-year educational program. Albemarle Paper Co. v. Moody, 422 U.S. 405, 433-34, 95 S. Ct. 2362, 2379, 45 L. Ed. 2d 280 (1975); 29 C.F.R. § 1607.4(c)(1) (1978) (candidates should be evaluated for a job at or near entry level when employees' potential may be expected to change in significant ways). The "readability" construct suffers from the same flaw. The defendants' expert assumed that all the materials analyzed were taught during the course or used during sheet metal work; yet this assumption was never proven adequately during the hearing.
44. Finally, the high school requirement has not been found to be job related in cases involving entry level positions or apprenticeship programs of the sheet metal workers and other trade unions. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) (overall hiring requirement); Donnell v. General Motors Corp., 576 F.2d 1292 (8th Cir. 1978) (apprenticeship program sponsored by UAW); Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976) (high school requirement for intra-company transfer); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974), cert. denied, 439 U.S. 1115, 99 S. Ct. 1020, 59 L. Ed. 2d 74 (1979) (employer's apprenticeship program for craft jobs); United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) (high school requirement for intra-company transfer); Patterson v. Youngstown Sheet and Tube Co., 475 F. Supp. 344 (N.D.Ind.1979) (employer's apprenticeship program); Rule v. International Association of Bridge Workers, Local No. 396, 471 F. Supp. 1335 (E.D.Mo.1979) (apprenticeship program of ironworkers); United States v. Sheet Metal Workers, Local 10, 6 FEP 1036 (D.N.J.1973) (apprenticeship program); E.E.O.C. v. Sheet Metal Workers, Local 638, 401 F. Supp. 467 (S.D.N.Y.1975), modified on other grounds, 532 F.2d 821 (2nd Cir. 1976) (apprenticeship program).
45. None of the foregoing should be interpreted as prohibiting the use of selection criteria incorporating any high school education. The defendants do not have unlimited resources to fund a training center accepting applicants on a "first come" basis. Defendants obviously desire quick learners who can maintain the union's reputation for workmanship. Testimony at the hearing established that basic algebra and trigonometry, and general reading skills, are necessary for successful performance in the apprentice program. Some courts have approved of apprenticeship programs incorporating a requirement of a minimum of one year of algebra or geometry, Donnell v. General Motors, 576 F.2d 1292 (8th Cir. 1978), or two years of high school, United States v. Sheet Metal Workers, Local 10, 6 FEP 1036 (D.N.J.1973). In restructuring their educational requirements, the defendants should examine the required course content in area high schools to determine when students are exposed to basic algebra, geometry or trigonometry. Upon further consideration by this court, the year in which such subjects are taught may prove an acceptable educational criteria.
b. "Job Relatedness" of the Arrest Inquiry and Interview
1. Arrest Inquiry
46. The defendants claim that arrest records were not considered during the selection process. Yet the arrest record inquiry appears on the application form and applicants were questioned repeatedly about arrest records during interviews. Supra at 961-962. This court must conclude that arrest records played a role in the selection process, as a factor in chilling potential applicants and as an element affecting an applicant's evaluation. The defendants have made no attempt to validate the arrest inquiry as job related; consequently, it must be eliminated. Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1371-72 (5th Cir. 1974) (failure to validate compels conclusion requirement was invalid). See Gregory v. Litton Systems, Inc., 316 F. Supp. 401 (C.D.Cal.1970), modified on other grounds, 472 F.2d 631 (9th Cir. 1972) ("no hire" policy for sheet metal mechanic arrested but not convicted not justified by business necessity).
47. The interview is the most important part of the application process. It is bifurcated into educational and interview portions, with the latter consisting of a number of broad and undefined criteria. Supra at 957-958. Subjective evaluations have been condemned, whether as a means of admitting applicants into unions or determining those employees qualified for promotions. Watkins v. Scott Paper Co., 530 F.2d 1159, 1191-92 (5th Cir. 1976) (promotion); United States v. Sheet Metal Workers, Local 36, 416 F.2d 123, 135-36 (8th Cir. 1969) (admission into sheet metal union). The interview procedure at issue in this case has many of the undesirable characteristics associated with subjective evaluations: categories such as "attitude," "interest in trade," "work experience" are likely to reflect the subjective judgments of the interviewers; no guidelines exist elaborating upon or narrowing the criteria, e.g. what work experience might be important in predicting an applicant's success in the program; the interviewers' judgments are unreviewable. Compare with E.E.O.C. v. E. I. duPont de Nemours & Co., 445 F. Supp. 223, 253-54 (D.Del.1978) (disparate impact inherent in subjective criteria reduced by the institution of procedures and standards to control and review subjective judgment). There is also evidence that these criteria were used to favor the sons or relatives of union members, by giving such applicants high ratings in "attitude," "conduct," or "work experience." Supra at 960-961.
48. The defendants have not attempted to validate any aspect of the interview; the entire process must be rejected for lack of job relatedness. While this interview procedure is unsatisfactory, more well tailored interviews may be permissible. 29 C.F.R. § 30.5(b)(1)(iv) (1979) (oral interviews permissible if limited to objective questions related to fitness of applicants and not qualifications previously determined). In devising new selection criteria, the defendants should identify those characteristics associated with successful applicants, e.g., drive, ambition, reliability, and the numerous academic, social, or work experiences applicants might have that are indicative of these qualities. Guidelines should then be developed, for use by interviewers and applicants, identifying the desired characteristics and the various ways an applicant may have satisfied them.
While it may be impossible and undesirable to eliminate all subjective aspects of the interview, the use of enunciated standards, tailored to the demands of an entry-level program and uniformly applied by all interviewers, will guard against abuses of judgment.
III. Issuance of A Preliminary Injunction
49. The plaintiffs have established a prima facie case that certain selection procedures utilized by the defendants violate Title VII. Defendants have failed to rebut that showing and appear unlikely to do so at trial. The merits of plaintiffs' claim certainly are strong enough to support the issuance of a preliminary injunction. Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 844 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958).
50. Plaintiffs also have met the other standards associated with the issuance of an injunction. Without relief, potential black applicants will be deterred because of defendants' advertisement of the high school requirement and use of the arrest inquiry. Blacks who apply will suffer the disparate impact of the interview process. There is no guarantee when the next apprenticeship class will be chosen nor any indication of the size of subsequent classes. Failure to act now may preclude proper black representation in the program for an indeterminate period. Continued use of the contested selection criteria will cause irreparable injury to current and potential black applicants. McKenzie v. McCormick, 436 F. Supp. 351, 15 FEP 1310, 1312 (D.D.C.1972). It clearly is in the public interest to protect black applicants from the effects of employment discrimination. Cannistra v. FAA, 20 Empl.Prac.Dec. P 30, 134 (D.D.C.1979).
51. The defendants contend that elimination of the current selection standards will produce severe financial hardship. They envision injunctive relief as resulting in an intolerable delay in the formation of an apprenticeship class and the eventual selection of unqualified applicants. Neither fear is warranted; defendants misconceive the type of injunctive relief necessary at this stage in the proceedings. This memorandum and order gives the defendants considerable leeway in devising new selection criteria. Supra at 973-974. The quality of future applicants, and the prompt administration of the apprenticeship program, rest with the defendants.
52. This approach depends on the good faith efforts of the defendants. This court will not look favorably on a newly tailored application procedure resulting in the same familiar fit. The discretion afforded by an interview is to be used to choose those applicants most likely to succeed in the apprenticeship program. It is not to be used as a subterfuge for reinstituting the high school requirement, favoring the children, relatives, or friends of members of the union, or choosing minimally qualified black applicants unlikely to become journeymen. If the defendants fail to act responsibly, this court will be forced to impose a "goal" system insuring adequate black representation in the apprenticeship program. See Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622 (2nd Cir. 1974), on remand, 400 F. Supp. 983 (S.D.N.Y.1975) (42 U.S.C. § 2000e-5(g) (1976) permits imposition of goals to eliminate effects of defendant's past discrimination and bar like discrimination in the future).
53. For the reasons presented in this memorandum, it is hereby ORDERED that plaintiffs' motion for preliminary injunctive relief against Local 102, SMACNA-D.C., and JAC is granted, and it is furthermore
(1) Defendants not act on any pending applications until the provisions of paragraphs (2)-(7), listed below, are complied with;
(2) Defendants eliminate the requirement that applicants possess a high school diploma or equivalent and the requirement that applicants present a high school transcript;
(3) Defendants do not consider subjective personal interview scores in selecting applicants;
(4) Defendants do not rely upon arrest record inquiries in selecting apprentice applicants;
(5) Defendants take affirmative action to notify the black community of the elimination of these discriminatory hiring criteria, inform the court of the specific actions taken, and postpone consideration of any pending applications until potential black applicants have had a reasonable opportunity to respond to such affirmative action;
(6) Defendants afford plaintiffs an adequate opportunity to (a) review the criteria and procedure used to select any apprenticeship class before such criteria or procedure are put in effect, and (b) review the racial composition of that class and bring to this court's attention any failure to adhere to approved procedures or criteria; and
(7) Any new selection criteria or procedures which defendants may choose to employ must be approved by this court before use by the defendants.