641 F.

2d 835

25 Fair Empl.Prac.Cas. 256,

25 Empl. Prac. Dec. P 31,545
Deborah S. WILLIAMS, individually, and on behalf of all
other persons similarly situated, Plaintiff-Appellant,
v.
COLORADO SPRINGS, COLORADO, SCHOOL DISTRICT
# 11, and
Colorado Springs Teachers Association, Defendants-Appellees.
No. 79-1301.

United States Court of Appeals,

Tenth Circuit.
Argued July 7, 1980.
Decided Feb. 9, 1981.

Martin A. Mansfield, Jr., Littleton, Colo., for plaintiff-appellant.

R. E. Anderson of Horn, Anderson & Johnson, Colorado Springs, Colo.,
for defendants-appellees.
Before SETH, Chief Judge, McKAY, and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.

This Title VII race discrimination action was brought under 42 U.S.C. 2000e
et seq., by Deborah Williams on behalf of herself and all other black persons
who have been employed as school teachers or who have applied for
employment as school teachers in Colorado Springs, Colorado School District #
11. Williams alleges that in violation of Title VII, (1) the District's hiring and
assignment practices have resulted in the concentration of black teachers in a
few schools within the District and (2) she was denied employment with the
District for the school year 1973-74 because of her race. After trial to the court,
judgment was rendered in favor of District # 11 on both the individual claim
and the class action. We affirm in part and reverse in part.

In July 1970, Williams was hired by the District for the 1970-71 school year to
teach fourth grade in Garfield School. Three weeks after she commenced
employment with the District, she was reassigned to Roosevelt School due to
increased student enrollment there. From the start, Williams experienced
difficulty adjusting to Roosevelt. Unlike Garfield, Roosevelt employed a team
teaching system, under which four teachers taught a group of approximately
115 students in an open classroom. This system required the teachers to
coordinate their efforts closely, and Williams, who was the only black teacher
at the school, experienced difficulty collaborating with the other teachers. She
testified she was told by a fellow teacher that she was not wanted at Roosevelt,
and that the teachers often failed to include her in planning sessions. Indeed,
after her first day at Roosevelt, E. B. Whisenhunt, Roosevelt's white principal,
told her that he would never have hired her.

Roughly four months later, Whisenhunt informed Williams that her contract
would probably not be renewed for the next year. He told her she was not
meeting the District's teaching standards and provided her a written list of
deficiencies in her performance. On January 28, 1971, Whisenhunt wrote
Williams a letter advising her again that it was doubtful her contract would be
renewed. In March, Williams received her official first year evaluations, all of
which were poor. The evaluators included Mrs. Arnold, a visiting black
supervisor; Mrs. MacMichael, a white supervisor; and Mr. Whisenhunt. All
three recommended that her contract not be renewed. Whisenhunt commented:

4 would recommend that she return to school for course work in elementary
"I
reading, math, science, social studies, and child development. Ultimately I believe
this to be in her best professional interest, and in the educational welfare of her
students to be."
5

Rec., vol. IX, exhibit 21.

When Williams was informed she would not be given a contract for the next
year, she decided to pursue a master's degree in teaching at Colorado College.
She earned four A's and four B's in graded courses and received her degree on
January 28, 1973. She then reapplied for a teaching position with the District
for the 1973-74 school year. After interviewing with a number of principals at
different elementary schools in the District, she failed to receive an offer of
employment.

Shortly thereafter, Williams filed charges with the Colorado Civil Rights
Commission and the Equal Employment Opportunity Commission. When the

E.E.O.C. dismissed Williams' complaint, she brought this action. The complaint
alleges the District unlawfully discriminated against her in refusing to hire her
for the 1973-74 school year. It also directly attacks the District's hiring and
assignment procedures on behalf of a class of all those black persons who have
been adversely affected by such procedures.
8

Under the District's hiring and assignment system, a school principal is vested
with almost complete discretion in hiring teachers for that school. The district
court found that

9
"(w)hile
the central administrative personnel office receives the applications for
employment and screens them for qualifications, the individual hiring decisions are
made by school principals. The principals who make these hiring decisions are free
to use individual subjective evaluations of the applicants without being restricted by
hiring guidelines other than the necessary teacher certification."
10

Rec., vol. I, at 38. Mr. Lynn, an administrator in the personnel office, explained
the rationale for the District's principal-centered hiring system:

"(The principal) is really closer to the need our buildings are so different.
11
12

"The programs are different. They are in a really better position to know exactly
what is needed in a teacher to fill a particular vacancy. They know their
program better than we do."

13

Rec., vol. II, at 193. When asked to specify the major needs to which he was
referring, Mr. Lynn testified: "It can be programmed (sic ). It can be
personalities. It can be a staff balance, age, sex, race to make up the uniqueness
of the building; the income area; the size; many things." Id. at 201.

14

The District's black teachers are concentrated in schools with a large proportion
of black students, particularly those schools with black principals. Statistical
evidence was presented ranking the District schools by the cumulative total of
full-time black teachers employed per year at each school between 1972 and
1978. It showed that 3 of the 37 elementary schools in the District employed
more than 50% of the District's black teachers during this period and 5 of 37
schools employed more than 67%. The evidence also revealed that 17 District
elementary schools did not have a single black teacher between 1972 and 1978.
Mr. Larry Osaki, a qualified statistician, concluded that this skewed distribution
of black teachers in the District was best explained by the distribution of black
students among the various schools in the District. Plaintiff argues that this
concentration of black teachers in the few schools with high black student

populations demonstrates that the District's hiring practices have had a

discriminatory impact on black teachers in violation of 42 U.S.C. 2000e-2(a)
(2), namely, that employment opportunities for black instructors have
effectively been limited to those schools with a substantial number of black
students.1
15

With respect to the class claim, the trial court held the evidence sufficient to
make a prima facie showing that the District's hiring system was unlawful.
However, the court found that the District had successfully rebutted the prima
facie case by articulating a legitimate, nondiscriminatory reason for its
principal-centered hiring practices, i. e., a principal's superior knowledge of the
peculiar needs of his own school. The district court also ruled that Williams
established a prima facie case of employment discrimination with regard to her
individual claim. The court again concluded that the District had rebutted the
prima facie showing by articulating a legitimate reason for her nonemployment,
i. e., that the principals who had considered her had selected other applicants
for nondiscriminatory reasons.

16

On appeal, Williams contends that (1) the trial court improperly applied the
"disparate treatment" standard of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), rather than the "disparate impact"
standard of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d
158 (1971), in determining whether the District rebutted the prima facie
showing on the class claim and (2) the evidence does not support the court's
finding that the District's failure to hire Williams for the 1973-74 year was not
race-related.

I.
The Class Action
17

Disparate treatment and disparate impact are "alternative theories upon which a
right to relief under Title VII may be established in a given case." Wright v.
National Archives & Records Service, 609 F.2d 702, 711 (4th Cir. 1979)
(footnote omitted). Disparate treatment analysis is applied to claims alleging "
(t)he employer simply treats some people less favorably than others because of
their race, color, religion, sex, or national origin." International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854, 52
L.Ed.2d 396 (1977). Disparate impact analysis, on the other hand, is applied to
claims including "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." Id. While proof of

discriminatory motive is necessary under a disparate treatment theory, such

proof is not required under a disparate impact theory. See id. Accord, Kirby v.
Colony Furniture Co., 613 F.2d 696, 702-03 (8th Cir. 1980). For the latter, it is
enough that the employment practices had a discriminatory effect. Dothard v.
Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). As
we said in United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 942
(10th Cir. 1979):
18

"In a Title VII case based on disparate impact, the consequences of the
employment practice are prohibited, and good intent or absence of
discriminatory intent does not redeem employment procedures or testing
mechanisms that operate as 'built-in headwinds' for minority groups and are
unrelated to measuring job capability. Griggs v. Duke Power Co., 401 U.S. 424,
432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971)."

19

See also Muller v. United States Steel Corp., 509 F.2d 923, 927 (10th Cir.
1975), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1976); Spurlock
v. United Airlines, Inc., 475 F.2d 216, 218 (10th Cir. 1972).

20

The class action in this case is based upon a disparate impact theory. Williams
claims that the District's hiring and assignment practices have caused black
teachers to be concentrated in a few District schools. The trial court correctly
held the evidence established a prima facie case of a Title VII violation. Here,
as in Sledge v. J. P. Stevens & Co., 585 F.2d 625, 635 (4th Cir. 1978), cert.
denied, 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 241 (1979):

21 need not inquire whether this burden was satisfied solely by the statistical
"We
evidence of the significant disadvantages under which the plaintiff class laboured,
since where, as here, such proof is coupled with evidence that defendant based
hiring and other employment decisions upon the subjective opinions of white
(superiors), the trial court is entitled to infer, as it did here, that the defendant
illegally discriminated ...."
22

See also James v. Stockham Valves & Fitting Co., 559 F.2d 310, 330 (5th Cir.),
cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1977); United States
v. N. L. Industries, Inc., 479 F.2d 354, 368 (8th Cir. 1973). District # 11 does
not challenge the trial court's finding of a prima facie case.

23

Once the plaintiff establishes a prima facie case of discriminatory impact, "the
employer must meet 'the burden of showing that any given requirement (has) ...
a manifest relationship to the employment in question.' " Dothard, 433 U.S. at

329, 97 S.Ct. at 1851 (quoting Griggs v. Duke Power Co., 401 U.S. at 432, 91
S.Ct. at 854). "The touchstone is business necessity. If an employment practice
which operates to exclude Negroes cannot be shown to be related to job
performance, the practice is prohibited." Griggs, 401 U.S. at 431, 91 S.Ct. at
853. Accord, United States v. Lee Way, 625 F.2d at 941; Spurlock, 475 F.2d at
218 ("(P)re-employment qualifications which result in discrimination may be
valid if they are shown to be job-related.")2 The term "necessity" connotes that
the exclusionary practice must be shown to be of great importance to job
performance to rebut a prima facie case. Accord, United States v. Bethlehem
Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971). A showing of "mere rationality"
is not adequate. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 249 (10th
Cir.), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1970). Nor is it
sufficient that "legitimate management functions" are served by the
employment practice. See Muller, 509 F.2d at 928.
24
"(T)he
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."3
25

Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.) (footnotes omitted),
cert. denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971).

26

Williams contends the district court failed to apply these standards for
discriminatory impact cases in dismissing the class action. We agree. Instead, it
appears the court applied the standards for evaluating "disparate treatment"
claims set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973), and Furnco Construction Corp. v. Waters, 438
U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1977). After finding that the class
had made a prima facie showing, the court said that the District need only
articulate a legitimate, nondiscriminatory reason for its hiring system to rebut
the class case. The District was held to have met this requirement by presenting
evidence that its principal-centered hiring system allowed it to accommodate
the particular needs of each individual school. The court then stated that "(i)n
the absence of proof of purposeful discrimination, a violation of Title VII could
be found in this case only if that rationale of the employment procedure can be
characterized as pretextual. That has not been shown." 4 Rec., vol. I, at 40. This
statement sets forth the shifting burdens in a "disparate treatment" case in
language almost identical to that in McDonnell Douglas, see 411 U.S. at 80204, 93 S.Ct. at 1824, and Furnco, see 438 U.S. at 578, 98 S.Ct. at 2950.

27

What must be done to rebut a prima facie showing in a disparate treatment case
is significantly different from a sufficient rebuttal in a disparate impact case.
See Kirby, 613 F.2d at 702-04. As the trial court stated, under the disparate
treatment theory all the defendant need do is articulate a legitimate,
nondiscriminatory reason for the practice in order to rebut the inference of
intent. The employer carries a burden of production. Wright v. National
Archives & Records Service, 609 F.2d 702, 713 (4th Cir. 1970). See Board of
Trustees v. Sweeney, 439 U.S. 24, 25 n.2, 99 S.Ct. 295, 297, 58 L.Ed.2d 216
(1978). The " 'employer's burden is satisfied if he simply explains what he has
done' or 'produce(s) evidence of legitimate nondiscriminatory reasons.' " Id.
(quoting dissenting opinion at 28, 29). In a disparate impact case, on the other
hand, we have said that the employer must prove business necessity for the
challenged practice to rebut the prima facie case. EEOC v. Navajo Refining
Co., 593 F.2d 988, 990 (10th Cir. 1979). He bears a burden of proof. See
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45
L.Ed.2d 280 (1975) ("burden of proving" tests are "job related."); Harless v.
Duck, 619 F.2d 611, 616 (6th Cir. 1980); Ramirez v. Hofheinz, 619 F.2d 442,
446 (5th Cir. 1980); Kirby, 613 F.2d at 703. Moreover, in a disparate impact
case, unlike a disparate treatment case, a rational or legitimate,
nondiscriminatory reason is insufficient. The practice must be essential, the
purpose compelling. See pages 10-11 supra.

28

In light of the district court's misapplication of "disparate treatment" standards

to this "disparate impact" claim, we reverse and remand the class action for
further consideration consistent with this opinion. We express no view on
whether the District's evidence was sufficient to rebut the prima facie case of
the class under the more exacting "business necessity" standard established in
Griggs, 401 U.S. at 431, 91 S.Ct. at 853, and its progeny. We note, however,
that the question whether hiring and promotion procedures that rely heavily on
subjective determinations are justified by business necessity has been of great
concern to courts and commentators. See, e. g., Rogers v. International Paper
Co., 510 F.2d 1340 (8th Cir. 1975), vacated, 423 U.S. 809, 96 S.Ct. 19, 46
L.Ed.2d 29 (1975); Muller, 509 F.2d 923; Rowe v. General Motors Corp., 457
F.2d 348 (5th Cir. 1972); Stacy, Subjective Criteria in Employment Decisions
Under Title VII, 10 Ga.L.Rev. 737 (1976); Note, Title VII and Employment
Discrimination in "Upper Level" Jobs, 73 Colum.L.Rev. 1614 (1973).

29

In Muller, we declared our concern with the defendant's "lack of meaningful

standards to guide the promotion decision, whereby there is some assurance of
objectivity. Such personal and subjective criteria encourage and foster
discrimination." 509 F.2d at 927-28. We went on to state that where "the results
give a strong indication that discrimination is being practiced, the cases

condemn subjective standards ...." Id. at 928. As the court pointed out in Rogers
v. International Paper Co., 510 F.2d at 1345:
30

"Greater possibilities for abuse ... are inherent in subjective definitions of

employment selection and promotion criteria. Yet they are not to be condemned
as unlawful per se, for in all fairness to applicants and employers alike,
decisions about hiring and promotion in supervisory and managerial jobs
cannot realistically be made using objective standards alone. Thus, it is
especially important for courts to be sensitive to possible bias in the hiring and
promotion process arising from such subjective definition of employment
criteria."

31

See also Barnett v. W. T. Grant Co., 518 F.2d 543, 550 (4th Cir. 1975),
("Nonobjective hiring standards are always suspect because of their capacity for
masking racial basis (sic ).")

32

On remand, it is incumbent upon the trial court to carefully weigh the evidence
presented by the District in determining if the District's hiring and promotion
procedures are justified under the business necessity standard.5 II.

The Individual Claim

33

Williams also challenges the trial court's finding that the District's failure to
hire her for the 1973-74 school year did not constitute discriminatory treatment.
As indicated earlier, in McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668, the Supreme Court set forth a three-step analysis for evaluating a
claim of "disparate treatment" under Title VII. See also Furnco, 438 U.S. 567,
98 S.Ct. at 2944. First, the plaintiff must establish a prima facie case of
discrimination by showing (1) that he belongs to a protected class; (2) that he
applied and was qualified for the job, (3) that he was nevertheless rejected; and
(4) that after his rejection the position remained open and the employer
continued to seek applicants with similar qualifications. McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. at 1824; Ray v. Safeway Stores, Inc., 614 F.2d 729,
730 (10th Cir. 1980). Where a prima facie case is established, the burden shifts
to the employer to "articulate some legitimate, nondiscriminatory reason" for
the plaintiff's rejection. Furnco, 438 U.S. at 578, 98 S.Ct. at 2950. See also
Safeway Stores, Inc., 614 F.2d at 731. If the employer satisfies this burden, the
plaintiff must prove that the reason offered by the employer for his discharge
was merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804,
93 S.Ct. 1825. Furnco, 438 U.S. at 578, 98 S.Ct. at 2950.

34

The trial court held the District successfully rebutted Williams' showing of a

34

The trial court held the District successfully rebutted Williams' showing of a
prima facie case with evidence that the school principals who interviewed her
for a position had legitimate reasons for not selecting her, and that she failed to
demonstrate these reasons were merely a pretext for discrimination. We must
uphold the trial court's findings unless they are clearly erroneous. Zenith Radio
Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23
L.Ed.2d 129 (1969); United States v. United Gypsum Co., 333 U.S. 364, 395,
68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). In order to conclude that findings are
clearly erroneous, we must be definitely and firmly convinced, after reviewing
the record as a whole, that a mistake has been made. Id. Under this standard, we
are compelled to affirm the trial court's findings.

35

The District presented evidence that Williams received extremely poor

evaluations from all of her supervisors during the 1970-71 school year. Mrs.
Arnold, a black supervisor in the District who had evaluated Williams in 1971,
informed one of the principals interviewing Williams in 1973 that she had
"deep concerns" about Williams' reemployment with the District. That principal
selected a different applicant who had also taught in the District but who had
good references. Another principal who interviewed Williams for a first grade
position stated that he selected instead an applicant who had been teaching first
grade in another District school. He testified that this applicant, who was
applying for a transfer within the District, had to be placed in one of the
District's schools, and since she was at least as well qualified as the other
applicants, he selected her. A third principal testified that he selected an
applicant whom he felt would be "open to suggestions, very willing to work
with other people, just very congenial" rather than Williams whom he
characterized as "rather brusk, and rather overbearing" in the interview. Rec.,
vol. VI, at 5.

36

In view of this evidence, we cannot say the trial court's finding that the District
articulated legitimate, nondiscriminatory reasons for Williams' rejection was
clearly erroneous. Nor under the strict standard for reviewing factual findings
can we say that the trial court was clearly erroneous in finding that those
reasons were not merely pretexts for discrimination.

37

The judgment below is reversed insofar as it dismisses the class action, and the
case is remanded for further proceedings consistent with this opinion. The
judgment in favor of defendants on Williams' individual claim is affirmed.

Section 703(a)(2) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-2(a)(2), provides:

"(a) It shall be an unlawful employment practice for an employer

(2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
employment opportunities ... because of such individual's race ...."
If the District's hiring practices confined black applicants for teaching positions
to certain schools within the District as plaintiff's evidence suggests, there is no
question they violated this provision. The Supreme Court has emphasized that
"Title VII provides for equal opportunity to compete for any job ...."
International Brotherhood of Teamsters v. United States, 431 U.S. 324, 338
n.18, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977) (emphasis in original).
2

As have other courts, we have spoken of business necessity in terms of a

"showing that the maintenance of safety and efficiency requires the practice,"
Muller, 509 F.2d at 928, in situations in which safety and efficiency are the
relevant concerns. See, e. g., Watkins v. Scott Paper, 530 F.2d 1159, 1171 n. 15
(5th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 163, 50 L.Ed.2d 139 (1976); N.
L. Industries, 479 F.2d at 365; United States v. Bethlehem Steel Corp., 446
F.2d 652, 662 (2d Cir. 1971); Jones v. Lee Way Motor Freight, Inc., 431 F.2d
245, 249 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d
237 (1970). The job-relatedness and the safety and efficiency standards are
simply different sides of the same coin. See de Lavrier v. San Diego Unified
School Dist., 588 F.2d 674, 678 (9th Cir. 1978). Job-relatedness as used by the
Supreme Court in Griggs, 401 U.S. at 431, 91 S.Ct. at 853, requires that hiring
and promotion criteria be necessary to the effective performance of a job. The
safety and efficiency standard requires that an employment practice be
necessary to the efficient operation of an enterprise or to its safety. The
Supreme Court has, in fact, indicated that the two terms are interchangeable. In
Albemarle Paper Co. v. Moody, the Court stated that if the employer shows that
"its tests are 'job related,' it remains open to the complaining party to show that
other tests or selection devices, without a similarly undesirable racial effect,
would also serve the employer's legitimate interest in 'efficient and trustworthy
workmanship.' " 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280
(1975) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93
S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973)) (emphasis added). And in Dothard v.
Rawlinson, 433 U.S. 321, 331 & n.14, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786
(1977), the Court stated in reference to the job-relatedness standard that "a
discriminatory employment practice must be shown to be necessary to safe and
efficient job performance to survive a Title VII challenge." As it has worked out
in the lower courts, the job-relatedness language is usually applied to testing
and academic requirements, while the safety and efficiency language is
generally applied to other employment practices. See generally Annot., 36

A.L.R. Fed. 9, 26 (1978)

3

Whether the business purpose can be "served by a reasonably available

alternative method having less discriminatory effects," see Muller, 509 F.2d at
928, is particularly pertinent to this case. We note that defense witness Robert
Lynn, Administrative Assistant in Personal Services for the District, indicated
during cross-examination that a reasonable alternative to the District's principalcentered hiring system may exist. He testified that on at least one occasion
during the 1977-78 period, the District's personnel office had composed a list of
eight minority applicants and limited the principal's hiring options to one of the
persons on the list. Since the District continued to adhere to its belief in the
value of significant principal control in hiring teachers, this method apparently
met that goal. It did provide the principal substantial discretion in selecting who
would be hired. Yet at the same time, it satisfied other concerns, such as
assuring minority representation, and limited the degree to which a principal's
racial prejudice could affect the racial balance of the District's faculty
That District # 11 may have later adopted such a system and may now have
higher minority representation is, of course, irrelevant to whether the District
earlier violated Title VII. As we stated in Jones v. Lee Way, 431 F.2d at 248, "
(t)he company's claimed recent efforts to recruit (Blacks) do not change the
situation, because our concern is with the employment practices at the time
when the plaintiffs were hired." Accord, Teamsters, 431 U.S. at 341-42, 97
S.Ct. at 1857.

We have already pointed out that proof of purposeful discrimination is not

necessary in a disparate impact case. See page 8 supra

In United States v. Hazelwood School Dist., 534 F.2d 805 (8th Cir. 1976), rev'd
on other grounds, 431 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), the
Eighth Circuit invalidated a principal-centered hiring system strikingly similar
to that of the present case. On the basis of statistical evidence, the court found
that the hiring system had a discriminatory impact on Blacks and concluded
that the school district had failed to rebut the inference of discrimination
thereby established. Without commenting on the school district's subjectivelybased hiring practices, the Supreme Court reversed on the ground that the
Eighth Circuit improperly analyzed the statistical evidence