APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-2855)
Before Aldisert and Sloviter, Circuit Judges, and Rambo, District Judge.*fn*
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.
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-1; 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.*fn1 This lawsuit followed.
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.*fn2 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.*fn3
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.*fn4 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.*fn5
EEOC could not contend, in the face of this data, that black males were under-represented 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 Anglos 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 ...