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 discrimination 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 costs 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.

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. Hazelwood, 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.

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.

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.

KEITH, Circuit Judge, concurring in part and dissenting in part.

I join Parts I and III of the court's decision, but I am unable to join Part II for two reasons: first, the majority misconstrues language in the trial court opinion, and second, the majority applies a legal standard which is contrary to Sixth Circuit precedent.

In Part II, the majority examines the concept of business necessity under Griggs v. Duke Power, 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). Before grappling with this issue, it notes that the trial court below failed to correctly apply both the business necessity and the less discriminatory alternatives concepts the second and third stages respectively of the Griggs analysis. Nevertheless, the majority concludes at footnote eight of the opinion that "(T)he 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.' " In my view, the majority misreads the district court. The relevant portion of the district court opinion reads more fully:

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. In other words, the decision of the company in 1973 was not motivated by consideration of discrimination; it was motivated according to the testimony by two factors, one, the idea that the yard employees are required or were required to drive these rigs, these trucks over the public highway and also that the company thought, after some discussion with the union, that it would be appropriate to have a system whereby first, prior, or the for other jobs could be given to company employees in the first place rather than going out on the street and hiring fresh employees. But that requirement in my judgment did not have disparate effect. It did tend to freeze out the previously excluded So there is a disparate impact and that requirement in my opinion does not is not for a sufficient compelling reason. There were alternatives available to the company. (Emphasis added).

In order to reach the conclusion that the district court made a factual finding of business necessity, the majority interprets the above language as follows: the company's selection device was "otherwise appropriate" absent the existence of "alternatives available to the company." This construction takes the phrase "otherwise appropriate" out of context. The sentences which immediately follow the phrase in the text of the district court opinion discuss disparate impact. They do not discuss available alternatives. They do make clear that the trial court sought to convey only that the selection device was "otherwise appropriate" absent its disparate impact upon women. In other words, the trial court merely observed in the opinion that the company's selection device was neutral on its face and that adoption of the device "was not motivated by consideration of discrimination." Therefore it is unreasonable for this court to construe the relevant portion of the trial court opinion as meaning anything other than that there was "no compelling business necessity as the term is used in Duke Power."1

It follows then that the majority should not have reviewed the merits of the company's business necessity contention. The majority offers two explanations for its decision to do so: that the district court implicitly found business necessity and, at footnote eight, that "the failure of the trial judge to couch his findings in the precise language of Griggs does not necessitate a remand." These explanations do not withstand analysis. First, as I have discussed, a proper reading of the district court opinion reveals that the trial court actually made no such finding of business necessity. Second, we do not have before us the problem of a trial court simply failing to use the precise terminology of Griggs, as was the case in James v. Newspaper Agency Corp., 591 F.2d 579, 583 (10th Cir. 1978).2 The terminology point is a red herring. The real reason this court should have remanded the business necessity issue for reconsideration is that the trial court collapsed the second and third stages of the Griggs analysis. Because of this error it is impossible to determine if the district court reasoned properly before making its factual finding as to business necessity.

In a closely analogous situation, the Supreme Court remanded for reconsideration a lower court's finding of Title VII liability. See Board of Trustees v. Sweeney, 439 U.S. 24, 99 S. Ct. 295, 58 L. Ed. 2d 216 (1978) (The Court remanded the case because the court of appeals collapsed the second and third stages of the McDonnell Douglas Title VII analysis). Under a Sweeney -like rationale, this court should have remanded the business necessity issue to the trial court for reconsideration. See Grano v. Dept. of Development, 637 F.2d 1073 at 1082 n.8 (6th Cir. 1980); Sweeney v. Board of Trustees of Keene College, 604 F.2d 106 (1st Cir. 1979), cert. denied, 444 U.S. 1045, 100 S. Ct. 733, 62 L. Ed. 2d 731 (1980); DPOA v. Young, 608 F.2d 671, 692-98 (6th Cir. 1979) (remanding reverse discrimination case where trial court applied an incorrect legal standard as to the constitutional issues).3 Instead, the majority went on to "affirm" the district court as to this issue because in its view the "finding" of business necessity was not clearly erroneous.4 The majority thus affirms a finding that was never made.

In further support of its ruling, the majority opines that proof of business necessity does not require a showing that the practice is "absolutely necessary or inherently essential to the operation of the business For a practice to be 'necessary' it need not be the sine qua non of a job performance " Going further, the majority endorses an approach taken by the Tenth Circuit in Spurlock v. United Airlines, 475 F.2d 216 (10th Cir. 1972), and concludes that because of "(T)he important public interest in safety on the roads and highways" the company's hiring requirements were manifestly related to the safe and efficient operation of its business. This analysis of business necessity is contrary to long-established precedent in this circuit.

As the majority correctly observes, the courts of appeals have taken two approaches in providing a description of the second stage of the Griggs equation that goes beyond the meaning conveyed by the conclusory phrases "business necessity" and "manifest relationship."5 This circuit selected its approach in Head v. Timken Roller Bearing Co., 486 F.2d 870, 879 (6th Cir. 1973), more than a year after the Tenth Circuit rendered its decision in Spurlock.6 In Timken Roller Bearing Co., Judge Miller wrote for court:The test (for business necessity) 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 Id. at 879. (quoting Robinson v. Lorrillard Co., 444 F.2d 791, 798 (4th Cir.), cert. dismissed pursuant to Rule 60, 404 U.S. 1006, 92 S. Ct. 573, 30 L. Ed. 2d 655 (1971).

This ruling is not an anomaly as the reference to the decision in footnote nine of the majority opinion might suggest. In fact, Timken Roller Bearing Co. has been consistently followed in a long line of subsequent decisions. See, e. g., Horace v. City of Pontiac, 624 F.2d 765 (6th Cir. 1980); Mitchell v. Mid-Continent Spring Co. of Kentucky, 583 F.2d 275 (6th Cir. 1978); Equal Employment Opportunity Commission v. New York Times Broadcasting Service, Inc., 542 F.2d 356 (6th Cir. 1976); Equal Employment Opportunity Commission v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975); Palmer v. General Mills, Inc., 513 F.2d 1040 (6th Cir. 1975); Afro-American Patrolmens League v. Duck, 503 F.2d 294 (6th Cir. 1974).7 Yet, the majority chose to ignore well established circuit precedent in order to rule in favor of the company and to endorse the controversial interpretation of business necessity employed in Spurlock.8 I cannot join in this disregard for circuit precedent. The proper standard here is the one recognized in Timken Roller Bearing Co., the narrow construction of the business necessity defense.

As stated in the preceding section of this dissent, I do not think it was appropriate for this court to have decided whether the company made out its business necessity defense. However, since the majority goes on to decide this issue, I am compelled to express my view that the company failed to meet its burden of establishing business necessity under the Timken Roller Bearing Co. or Robinson v. Lorrillard Corp. standard.

The evidence at trial indicated that driving trucks was a very small part of the total activities of the company's yard employees. Mr. Thompson, vice- president of the company, estimated that at most yard employees spent four percent of their work day utilizing skills developed in over-the-road truck driver training. He also noted that some of the yard employees never drove the trucks; they worked entirely on the release gate. In addition, the evidence clearly indicates that Complete Auto Transit employees can and have performed over-the-road truck driving safely and efficiently without formal schooling or two years experience. Nine out of 16 of the employees hired before 1973 had no such training and yet they have performed the job of yard employee to the company's satisfaction. The evidence indicates that these employees were adequately prepared for the job of yard employee after undergoing a minimal amount of on-the-job training.9

The most compelling reason for rejecting the company's business necessity contention, however, is that after the wildcat strike of 1976 the company terminated its experience-school requirement.10 The company offered absolutely no evidence to explain why the requirement was "necessary" during the four months it was in operation and then apparently unnecessary when the company terminated the requirement. From the evidence presented, it appears that Complete Auto Transit Inc. has operated safely and efficiently without the selection device. Therefore, it is erroneous for the majority to baldly conclude that the company proved that its selection device was so compelled by considerations of safety and efficiency as to override the device's grossly disparate impact on women.11 Accordingly, the evidence below, in my view, cannot adequately support a finding of business necessity.