dissenting.
When, in 1967, Congress originally addressed the serious social problem of age discrimination in employment, it did so because “older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs”; because “certain otherwise desirable practices may work to the disadvantage of older persons”; and because “the incidence of unemployment, *126especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave.” Age Discrimination in Employment Act of 1967 [hereinafter ADEA], Pub.L. No. 90-202, § 2(a)(l)-(3), 81 Stat. 602 (codified at 29 U.S.C. § 621(a)(l)-(3)). The purpose of the Age Discrimination in Employment Act was, inter alia, “to promote employment of older persons based on their ability rather than age.” Id. § 2(b), 29 U.S.C. § 621(b).
William Massarsky, a senior process engineer in General Motor’s New DepartureHyatt Bearings Division, had seven years seniority when he was laid off on February 28, 1971. He was not recalled until February 27, 1976, after the present lawsuit had been instituted. He was 48 years old at the time of the layoff. It is undisputed that GM chose to lay off Massarsky rather than a work study student from the General Motors Institute, who was assigned to Massarsky’s department and paid out of the departmental budget, because of a GM policy not to lay off GMI students and to guarantee them the opportunity to complete their degrees.1 Massarsky remained on layoff status for five years. It is undisputed that he was not recalled to work earlier because at least three additional GMI students were assigned to Massarsky’s department after they graduated pursuant to a GM policy which classified GMI students as active employees upon their graduation, and gave them preference over inac-five employees such as Massarsky.2 Thus, Massarsky claims violation of the statute both for his initial layoff and the failure to recall.
Massarsky was admittedly within the protected age group for whom the ADEA was enacted.3 Massarsky proved at trial that each of the GMI students who was favored over him was between 22 and 25 years old. Dr. William B. Cottingham, President of the General Motors Institute, testified that “the age makeup of our typical class is primarily in the eighteen to twenty category because we recruit primarily at high schools for our classes.” Transcript of October 1, 1981 at 154. Thus, it is an ineluctable conclusion that those in the favored class, GMI students, were below 40. GM does not contend otherwise.4
Nonetheless, the majority finds no age discrimination in the GM policies which, by their very nature, favor younger workers over older workers. It reaches its improbable conclusion first, by holding that a showing of intent to discriminate, over and above the establishment of and adherence to the patently discriminatory policies at issue in this case, is necessary for the disparate treatment claim, and second, by holding that evidence that the policies favored the group of younger workers and had an adverse impact on Massarsky, an older worker, is insufficient to establish the disparate impact claim. I believe the majority errs in both respects. Furthermore, the majority fails to examine whether the GM policies qualify for the ADEA statutory de*127fense of “differentiation ... based on reasonable factors other than age”, 29 U.S.C. § 623(f)(1), and fails to discuss how these GM policies can qualify as a legitimate, nondiscriminatory reason or as justified by business necessity. Finally, the majority affirms the district court’s rather remarkable decision declining to instruct the jury on the heart of plaintiff’s case, his claim that these policies either on their face or by their inescapable effect favor younger workers over older workers.
I.
DISCRIMINATORY TREATMENT
A.
Massarsky’s Layoff
As in our recent case of Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.1983), this case involves the interweaving of the two separate legal theories of liability used in employment discrimination cases, one predicated on discriminatory treatment and the other predicated on disparate impact. This ease differs somewhat from the traditional discriminatory treatment case. Ordinarily, discriminatory or disparate treatment claims challenge discrete action directed against a single individual, such as discharge or discipline allegedly due to race, sex, or age, see, e.g., Worthy v. United States Steel Corp., 616 F.2d 698 (3d Cir. 1980), or failure to provide certain advantages or services to a member of one group which were provided to members of the favored group, see, e.g., Kunda v. Muhlen-berg College, 621 F.2d 532 (3d Cir.1980). Here, however, plaintiff does not claim that he, as an individual, was singled out for disparate treatment. Instead he claims that the GM policies which were applied to him resulted in disfavoring him as an older worker and favoring GMI students, who were younger workers.
In employment discrimination cases, claims of unfavorable employment practices resulting from an employer’s policy have ordinarily been considered under disparate impact analysis. That analysis, as it evolved from Griggs v. Duke Power Co., 401 U.S. 424,91 S.Ct. 849, 28 L.Ed.2d 158 (1971), is directed to facially neutral policies which have a disparate impact on a particular race, sex or age group. Where the employment policy or practice is not facially neutral, it is considered discriminatory treatment. Although an intent to discriminate is a necessary ingredient of a discriminatory treatment case, the Supreme Court has never required or suggested that plaintiffs who have proven a facially discriminatory policy must make a separate showing of intentional discrimination. Thus in City of Los An-geles Department of Water & Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), the Court held that a requirement that female employees contribute more to a pension fund than male employees constituted discriminatory treatment, without any intimation that there was a need to make a separate finding of intent to discriminate. Indeed, an intent to discriminate in the sense used by the majority in this case as “motivated by any discriminatory animus,” Majority op. at 118, was patently absent in Manhart since the unequal pension contributions had been established because women as a group do in fact live longer than men. Similarly, in Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (per curiam), the Court held an employment policy refusing to hire women with preschool-age children constituted discriminatory treatment notwithstanding the fact that “no question of bias against women as such was presented.” Id. at 543, 91 S.Ct. at 497. It remanded for consideration whether the employer could satisfy the statutory bona fide occupational qualification defense, but significantly did not remand so that the employer could show absence of intent to discriminate. In cases of facially discriminatory policy, the policy itself establishes the intent necessary to show discriminatory intent.
If GM had a policy that it would only hire applicants who were less than 40 years old, I assume we would hold that this facially discriminatory policy showed discriminatory treatment as a matter of law and would not *128submit to the jury the issue of intentional discrimination. There might be a jury issue on whether a statutory defense applied, but not on whether plaintiff had satisfied the requirement to show intentional discrimination. As in the Title VII cases, intent would be supplied by the policy itself. Similarly, if GM had a policy that it would insulate employees under 40 years of age from any layoff, again there would be no intentional discrimination issue to submit to the jury. Should this legal principle change merely because GM framed its policy in terms of favoring GMI students (who were all under 40) rather than in terms of favoring them qua their age? If a statute were directed at roses, and a grower described its flower as a fragrant multipetaled red bloom grown on a branch with thorns, is the flower any less a rose? Gertrude Stein would have rejected that suggestion with dispatch.
In some circumstances, there might be a jury issue as to whether a policy similar to GM’s policy was discriminatory. In this case because the testimony of the GMI president concedes, and GM does not deny, that the GMI student group was exclusively under 40 years of age, see note 4 supra, the GM policy should be treated as facially discriminatory and there was no issue of intentional discrimination to submit to the jury. The focus of the majority’s opinion should have been on whether GM has any defense or justification for that policy.
Instead of analyzing along this route, the majority predicates its analysis on the language from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), establishing a presumption which assists plaintiffs in making out a prima facie disparate treatment case. The order and allocation of proof referred to in McDonnell Douglas has little applicability in this case. The prima facie case recognized in McDonnell Douglas is useful for those plaintiffs who have difficulty finding direct evidence of discrimination. There is no indication in that opinion or its progeny that it establishes the exclusive method of proving discriminatory treatment. Direct evidence of discrimination obviously would suffice. Similarly, a facially discriminatory policy satisfies the requisite proof.
It is inconsistent for the majority to acknowledge that Massarsky established a prima facie case on his disparate treatment claim, but to conclude that Massarsky failed to show intentional discrimination. The intent to discriminate is presumed from the establishment of that prima facie case unless GM articulated a “legitimate, nondiscriminatory reason” for the layoff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254,101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981) (emphasis added). This has just been reaffirmed by a unanimous Court in United States Postal Service Board of Governors v. Aikens, - U.S. -, -, 103 S.Ct. 1478, 1483, 75 L.Ed.2d 403 (1983). The majority never adequately discusses whether GM did so.
B.
Failure to Recall
Massarsky’s discriminatory treatment claim on the failure to recall should be analyzed in the same way as his layoff claim. Recall of laid off GM employees was on the basis of seniority, all other factors being equal. Massarsky waited five years for recall while GMI graduates with shorter service were reassigned upon graduation or promoted to fill openings in his department which Massarsky could have filled. GM justified this practice on its corporate policy to fill open positions with active employees before recalling laid off employees. Mas-sarsky’s challenge is not directed to that policy as such but to GM’s policy to designate GMI graduates as active employees. Under that classification, GMI students are, upon graduation, entitled to preference in filling openings over inactive employees, notwithstanding their shorter service.
Massarsky has shown that GM’s classification policy designating graduates as active employees resulted in the failure to recall him. Several GMI students were assigned to Massarsky’s department after they graduated — Mihlec, age 23 (8/20/73); Morelia, age 22 (2/1/76); and Ziegler, age 22 (2/1/76) — while he remained on layoff *129status. During this same period, Biondo, age 25, and Schultz, age 23, students previously assigned to that department, were reclassified upon graduation and filled positions which Massarsky could have filled. It was only after one of these younger employees with less seniority left GM that Massarsky was recalled.
Again, the majority holds that Massarsky failed to show discriminatory treatment in the failure to recall, by stating that “[a]s with the discriminatory layoff charge, the jury evidently determined that the Company’s employment practices were not a pretext for intentional discrimination on the basis of age.” Majority op. at 123. However, as developed above, when, as in this case, it is uncontested that GMI students are younger workers, a policy which classifies them as active workers upon graduation is facially discriminatory and carries with it a necessary finding of intentional discrimination. The central issue whether the policy of classification of GMI graduates as active employees could be justified under a statutory defense is never reached by the majority.
II.
DISPARATE IMPACT
A.
Massarsky’s Layoff
The analysis which I believe appropriate for Massarsky’s disparate treatment claims is based on equating GM’s policies on GMI students and recent graduates with policies explicitly framed in terms of employees under 40 years of age. As noted in Part I, since GM has not contested that this favored group is exclusively under 40, I believe the relevant policies must be treated as facially discriminatory. If, however, we treat these policies as facially neutral, as the majority does, then the applicable analysis is that developed under the disparate impact theory. Plaintiff would be entitled to show that even in the absence of intentional discrimination, these policies favored younger workers and had an adverse impact on him.
Preliminarily, I find the majority’s reluctance to decide that disparate impact analysis is appropriate for an ADEA claim surprising. As the Supreme Court recognized, “the [substantive] prohibitions of the ADEA were derived in haec verba from Title VII.” Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978). The Second Circuit has held disparate impact analysis should be applied to an ADEA claim. Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). We should do the same. Cf. NAACP v. Medical Center, Inc., 657 F.2d 1322, 1331 (3d Cir.1981) (in banc) (disparate impact analysis applicable to the Age Discrimination Act of 1975, 42 U.S.C. §§ 6101 et seq.).
The district court, for reasons which were never fully explained, visualized the case as a disparate treatment case only. Over plaintiff’s objection, the court rejected plaintiff’s contention that the case should be considered and submitted to the jury on a disparate impact theory. See, e.g., Transcript of October 5, 1981 at 6.28 (charging conference). In doing so, the district court distorted plaintiff’s claim. Plaintiff’s counsel explained to the court that plaintiff did not claim that GM “went after Mr. Massar-sky personally because of his age.” Id. Instead, it was plaintiff’s claim that “it was the implementation of the overall policy through the personnel director that was involved that resulted in the impact on him because of his age.” Id. at 6.29.
Since the trial court either misconceived or mischaracterized plaintiff’s claim, it never dealt frontally with plaintiff’s disparate impact theory, either in the opinion on judgment n.o.v. or in submitting the case to the jury. The majority affirms, apparently concluding that the district court’s error was irrelevant because it believes that Mas-sarsky failed to establish a prima facie case on disparate impact. Although the trial court never reached the issue, the majority finds Massarsky’s disparate impact claim was inadequate because he failed to show “that the employer’s selection process re-*130suits in unfavorable treatment of a disproportionate number of members of the protected group to which the plaintiff belongs.” Majority op. at 120.
As noted above, plaintiff has shown that the GM policy established a favored class, composed of younger employees, an age based classification. In most cases challenging age based classifications, the composition of the favored class is not as starkly apparent as in this case. Nonetheless, the courts have recognized the discriminatory impact of the policy. For example, in Geller v. Markham, supra, the court considered the district court’s holding that a school board’s policy to recruit new teachers at levels below the sixth step of the salary schedule, reached by teachers with more than five years experience, was discriminatory as a matter of law because 92.6% of all teachers over 40 years of age would have reached that “sixth step” cutoff. Even though a majority of teachers under 40 also had reached the “sixth step”, the Second Circuit agreed “that the high correlation between experience and membership in the protected age group (40 to 65 years of age) would render application of the ‘sixth step’ policy discriminatory as a matter of law.” 635 F.2d at 1033. Because the policy made it substantially less likely that a person over 40 would be selected, it was unlawful. The Geller court found it decisive that an overwhelming percent of the protected class was in the disfavored group. The record in this case supports an even stronger finding, i.e. that virtually 100% of the protected class is in the disfavored group because the favored student group is under 40. As in Geller, the fact that the policy may also disfavor laid off workers under 40 does not overcome the discriminatory impact on the protected class.
The majority’s holding that it was not enough for Massarsky to prove an impact on Massarsky alone ignores the directly applicable language in Connecticut v. Teal, - U.S.-, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). There, Justice Brennan, writing for the Court, rejected the claim that there was no violation of Title VII because other employees in the protected group were favorably treated. The Court stated: “It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Id. 102 S.Ct. at 2535. Justice Brennan made explicit that the focus on the individual adversely affected by the employer’s policy or action should be applied in all Title VII cases, whether brought under the discriminatory treatment theory or under the disparate, impact theory.
The fact remains ... that irrespective of the form taken by the discriminatory practice, an employer’s treatment of other members of the plaintiffs’ group can be “of little comfort to the victims of . .. discrimination.” Teamsters v. United States, supra, 431 U.S., at 342, 97 S.Ct., at 1858. Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired. That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory. Every individual employee is protected against both discriminatory treatment and against “practices that are fair in form, but discriminatory in operation.”
Id. See also Spirt v. Teachers Insurance & Annuity Association, 691 F.2d 1054, 1061-62 (2d Cir.1982).
Justice Brennan predicated his interpretation of Title VII on the legislative policy and statutory language which precludes “limitations and classifications that would deprive any individual of employment opportunities." Connecticut v. Teal, 102 S.Ct. at 2531 (emphasis in original). The ADEA shows the same concern for the individual employee. Its prohibition is in haec verba with that of Title VII on which the Court relied. It makes it unlawful “to limit, segregate, or classify ... employees in any way which would deprive or tend to deprive any individual of employment opportunities ... because of such individual’s age,” 29 U.S.C. § 623(a)(2) (emphasis added). No *131reason is suggested why the analysis of Connecticut v. Teal is not equally applicable to an ADEA case. In the Court’s recent opinion in EEOC v. Wyoming, - U.S. -,-, 103 S.Ct. 1054, 1058, 75 L.Ed.2d 18 (1983), it stated that the ADEA “emphasized both the individual and social costs of age discrimination.” As the Court noted, this statute was predicated on the finding that age discrimination “inflicted on individual workers the economic and psychological injury accompanying the loss of the opportunity to engage in productive and satisfying occupations.” Id.
The majority’s attempt to distinguish Tea] on the somewhat circular statement that Massarsky was selected for layoff because “he possessed the least seniority of all employees eligible for layoff’, Majority op. at 122 (emphasis added), ignores the critical fact that Massarsky had the least seniority only because a less senior employee was insulated as a result of the policy at issue. The majority had earlier in its opinion recognized that Massarsky “did, of course, show that the challenged employment practices of General Motors had a pernicious effect on him,” Majority op. at 121. After the decision in Connecticut v. Teal, the majority cannot take refuge in the assumption that Massarsky was an anomaly and that the layoff would ordinarily fall on employees too young to be protected under the ADEA. See Majority op. at 120-121. By relying on the weight ordinarily given to seniority which might counterbalance the challenged policy, the majority is adopting a “bottom line” analysis discredited in Connecticut v. Teal. As the First Circuit recently noted, Teal requires analysis at the “point at which the employer’s neutral criterion has a discriminatory effect. The Court’s focus must be on the first step in the employment process that produces an adverse impact ... [here the insulation of students from layoff], not the end result of the employment process as a whole.” Costa v. Markey, 694 F.2d 876, 880 (1st Cir.1982).
Thus, Massarsky established a prima facie case of disparate impact by showing that the policy to retain students, even if not facially discriminatory, in effect preferred younger employees, and was the reason for his layoff.
B.
Failure to Recall
In my view, the legal principles set forth above should also govern application of the disparate impact theory to GM’s policy classifying GMI students as active employees who, upon graduation, were entitled to fill openings before Massarsky, an older worker, was recalled. Massarsky has shown that this favored group, recent GMI graduates, was younger than 40. He has also shown that he was not recalled while these younger recent GMI graduates were assigned, in preference to him, to the openings in his department. Thereby, he established a pri-ma facie case. It was, then, incumbent upon GM to establish a defense or articulate a legally adequate justification.
III.
JUSTIFICATION FOR GM’S POLICIES
I believe that the preceding analysis demonstrates that Massarsky established a violation of the ADEA for both the layoff and the failure to recall under the discriminatory treatment theory. As developed above, there was no factual issue as to the composition of the favored groups and hence the policies must be treated as facially discriminatory. It is obvious that a facially discriminatory policy cannot serve as a legitimate nondiscriminatory reason; hence we need not engage in the McDonnell Douglas analysis. Because intent to discriminate was supplied by the establishment and implementation of the challenged policies, no jury issue other than a potential defense was presented on disparate treatment.
Massarsky established a prima facie case of disparate impact by the evidence that the policies favored groups of younger persons and had an adverse impact on him. In order to rebut that prima facie case, it was incumbent on GM to articulate the business necessity for these policies, business necessity serving in disparate impact cases as the *132analog of the articulation of a legitimate nondiscriminatory reason in disparate treatment cases. GM has not claimed business necessity for its policies.
It remains to consider whether GM has proven that it falls within the only statutory defense on which it relies — that the differentiations created by the policies are based on “reasonable factors other than age.” 29 U.S.C. § 623(f)(1). Massarsky claims that as a matter of law, GM cannot defend this age discrimination claim on corporate policies which are themselves discriminatory as favoring younger workers. Therefore, he argues, he was entitled to judgment n.o.v. He contends that even if we do not agree with his per se illegality analysis, he was at least entitled to jury instructions under which the jury would determine whether these corporate policies could be justified. GM’s presentation to this court and the majority’s opinion fail to focus on whether GM’s policies could be considered as legally justified.
A.
The Per Se Analysis
Massarsky’s Motion for judgment n.o.v. was based on his per se analysis. Even if a plaintiff shows discriminatory treatment or disparate impact, an employer may avert liability by proving a statutory defense. The only statutory defense asserted by GM was that of “reasonable factors other than age.” GM’s position appears to be that because it treated Massarsky on the basis of its policies, it did not violate the statute.
The language of the provision permitting “differentiation ... based on reasonable factors other than age” suggests that the defense is a mirror image of the offense itself. In other words, if the employer proves that the treatment of the employee was based on a reasonable factor other than age, then there has been no age discrimination. Accordingly, an employment policy which by definition favors one age group cannot be a “reasonable facto[r] other than age” although it might be a “bona fide occupational qualification” which concedes the age based discrimination but asserts the affirmative defense that substantially all of a given class would be unable to perform the job. See, e.g., Marshall v. Westinghouse Electric Corp., 576 F.2d 588, 591 (5th Cir.1978). GM does not seek to bring itself within the BFOQ defense.
There is much to commend this interpretation of the statutory defense of “reasonable factors other than age.” As the original interpretive regulations issued by the Department of Labor recognized, “To classify or group employees solely on the basis of age ... for any . . . purpose, necessarily rests on the assumption that the age factor alone may be used to justify a differentiation — an assumption plainly contrary to the terms of the Act and the purpose of Congress in enacting it. Differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed.” 29 C.F.R. § 860.103(h) (1982). The EEOC, now responsible for enforcement of the ADEA, has taken a similar position. Its regulations state, “When an employment practice uses age as a limiting criterion, the defense that the practice is justified by a reasonable factor other than age is unavailable.” 29 C.F.R. § 1625.7(c) (1982).
In discriminatory treatment cases, the “reasonable factors” defense will in large measure overlap the legitimate, nondiscriminatory reason which defendant must articulate to rebut intent to discriminate. Similarly, in disparate impact cases, the “reasonable factors” defense will overlap the business necessity upon which defendant must rely if it is to rebut plaintiff’s prima facie case. See 29 C.F.R. § 1625.7(d) (1982) (when claimed reasonable factor is an employment practice which “has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity”). In such cases, the “reasonable factors” must be justified as job related, such as physical fitness requirements reasonably necessary for the specific work, evaluation factors such as education or quality of production where validly related to job requirements, and employee tests specifically related to job requirements. 29 *133C.F.R. § 860.103.-104 (1982). See also Laugesen v. Anaconda Co., 510 F.2d 307, 315 (6th Cir.1975) (job related showing required when purported “reasonable factor” is a policy that may have a disparate impact upon older workers). GM never claimed that its policies were job related or that GMI students were, as a class, better suited to the work. Since age based differentiations cannot be “reasonable factors other than age,” and since GM never even proffered a job related justification for its policies, no jury question was presented under either a disparate treatment or impact theory.
The majority assumes it is sufficient if GM merely followed its policy, and never examines whether that policy is, in itself, discriminatory. However, in Griggs v. Duke Power Co., the Court stated that the employer could not rely on its policy requiring a high school education or passing of a standardized general intelligence test unless these prerequisites were shown to be significantly related to successful job performance. 401 U.S. at 431, 436, 91 S.Ct. at 853, 856. As this court stated in applying a similar discrimination statute, “If the defendant presents no evidence of business relatedness in his case, the court may assume that there was no permissible reason for the impact.” NAACP v. Medical Center, Inc., 657 F.2d at 1334. Since GM did not attempt to show any job relatedness, and apparently takes the erroneous position that it was not required to do so, I believe Massarsky was entitled to judgment n.o.v. on liability.
B.
Jury Instructions
Even if we do not treat GM’s policies as discriminatory per se, those policies could serve as evidence of an intent to discriminate. Similarly, even if we liberally construe this record to assume that GM relied on a business necessity justification, that justification should have been presented to the jury. For reasons which are incomprehensible to me, the district court never instructed the jury on either of these issues.
Massarsky made clear throughout gation that he based his ADEA clain policies which favored GMI students and graduates. Indeed, the district court’s order reinstating Massarsky’s federal age discrimination claims reflected an agreement between counsel that the factual basis for Massarsky’s ADEA claims would be limited to:
the circumstances surrounding the alleged permanent placement or hiring of certain General Motors Institute ‘students’, specifically Joseph Biondo, Arthur Glass, William Mihelc, Gary Schultz, Robert Morelia, Harry Ziegler, Jr., Alan Mun-kascy and Stephen Kienzle, at the Clark plant of the Hyatt Division during the period February 1971 through February 1976.
Joint Appendix at 114a (emphasis added).
Massarsky adequately preserved his objection to the district court’s failure to refer at any point in its jury charge to GM’s policies on GMI students and graduates and Massarsky’s claim that those policies were discriminatory. His counsel vigorously objected at the charging conference to the district court’s failure to make any mention of the relevant policies. See Transcript of Conference of October 2, 1981 at 136-40. The court’s charge that Massarsky had to prove intent to discriminate (which as noted above was erroneous since intent was supplied by the policy itself) and that GM claimed the layoff resulted from an economic necessity to reduce the number of process engineers (a conceded fact which skirted the central issue) failed to direct the jury’s attention to the heart of plaintiff’s case. The district court declined to tell the jury that GM had admittedly based its actions on its internal policies and refused to instruct the jury to consider whether those policies were justified because the district court believed that such instructions would be “[pjractically a directed verdict” and therefore “prejudicial to the defendants.” Id. at 139. The reason given is insufficient. If such a charge in effect amounted to a “directed verdict”, that would only have been because of GM’s failure to show any justification for its policies.
*134In Geller v. Markham, supra, the trial court instructed the jury that the “sixth step” policy for hiring teachers was discriminatory on the basis of age as a matter of law, and submitted to the jury only the question whether the policy had been applied to plaintiff. 635 F.2d at 1031. Here GM conceded that the policies were applied to Massarsky.
The inescapable obligation of the trial court in a jury trial is to explain the legal issues to the jury, instructing the jurors on the appropriate legal principles in language they can understand. See, e.g., Lind v. Aetna Casualty & Surety Co., 374 F.2d 377, 380 (5th Cir.1967); 9 C. Wright & A. Miller, Federal Practice and Procedure § 2556 (1971). The trial court must instruct the jury in accord with a party’s contention if it is consistent with the evidence in the case. See Richardson v. Walsh Construction Co., 334 F.2d 334, 338 (3d Cir.1964). As long as a century ago, this court stated, “It is error for the court to submit the evidence and theory of one party prominently and fully to the jury and not call their attention to the main points of the opposite party’s case.” Weiss v. Bethlehem Iron Co., 88 F. 23, 30 (3d Cir.1898) (Acheson, J.), appeal after remand, 100 F. 45 (1900), cert. denied, 176 U.S. 685, 20 S.Ct. 1027, 44 L.Ed. 638 (1900). The fact that this is an “old” citation does not detract from its correctness or force. In failing to present to the jury the plaintiff’s primary contention, the trial court emasculated plaintiff’s case. I believe this constituted reversible error.
In Title VII cases, unlike ADEA cases, the court serves as the factfinder. Thus, in the Supreme Court’s recent Aikens opinion, it noted that the factfinder, there the district court, “must decide which party’s explanation of the employer’s motivation it believes.” Aikens, - U.S. at --, 103 S.Ct. at 1482. In this case the factfinder, i.e., the jury, was never instructed on plaintiff’s explanation of the reason for employer’s action, since the trial court ignored the issue of the policy insulating GMI students and graduates.
It may be that Massarsky’s claim has received somewhat less than sympathetic treatment by the trial judge and the majority because of their belief that it was reasonable for GM to provide a work study opportunity for GMI students so they could graduate. GM could have accomplished this goal without charging the students to the department’s payroll and casting them in competition with older employees. In some plants, for example, General Motors has placed GMI students on personnel or training budgets when departmental slots were unavailable. See Williams v. General Motors Corp., 656 F.2d 120, 123 (5th Cir.1981), cert. denied, 455 U.S. 943,102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). In any event a goal to protect GMI students until graduation cannot justify classification of GMI graduates as active employees and assigning them to open positions in preference to Massarsky, a laid off employee with more seniority. Significantly, GM never sought to justify its policies on any need to train a supply of new personnel. Had it done so, plaintiff would have had the opportunity to rebut that claim, and to show that a feasible, yet less onerous alternative existed. See NAACP v. Medical Center, Inc., 657 F.2d at 1335.
We must not overlook that Congress considered but rejected an exemption for management training programs when it enacted the ADEA. As explained in the House Report accompanying the original bill:
The committee also considered a suggestion that section 4(f) be amended to specifically allow for a bona fide management training program....
The committee declined to incorporate a specific exception for management training programs since it was believed so broad an exemption in the law might open a very wide door of possible abuse. Almost any training, or opportunity for acquiring experience on a job, might be construed as leading to future advancement to management positions.
H.R.Rep. No. 805, 90th Cong., 1st Sess. 4, reprinted in 1967 U.S.Code Cong. & Ad. News 2213, 2217 (emphasis added).
*135There may be some unavoidable instances where the ADEA’s protection of the older worker has a countervailing impact on another worthy policy. The majority may be suggesting as much in its otherwise unexplained reference to the fact that the GMI population contains a significant number of minority and female students. However, GM did not seek to justify its policies on the need to train members of groups whom it may have previously neglected. Nor did it seek to justify its policies on any business necessity. GM chose to stand mute on the rationale for its corporate policies. However, as the internal memorandum quoted by the majority makes clear, GM’s interest appeared to be in protecting its “considerable investment in these [GMI] students,” Majority op. at 119, rather than a social policy of advancing minorities or women.
As I have indicated, I believe the appropriate disposition of this case, given GM’s failure to explain or justify its policies, is to reverse and direct judgment n.o.v. At a minimum, Massarsky is entitled to a remand for a new trial with proper jury instructions. I dissent from the majority’s affirmance.
. As GM concedes in its brief, “the retention of Biondo was pursuant to GM policy that GMI students are not subject to layoff.” Brief for GM as Appellee at 12.
. GM explains the failure to recall Massarsky on the ground that “active employees already on the payroll — e.g. Biondo, Glass, Mihelc, and Schultz [all recent GMI graduates] — were promoted into available positions in the process engineering department during [the time Mas-sarsky was on lay off].” Brief for GM as Ap-pellee at 12.
. The ADEA originally defined the protected older worker as one between 40 and 65 years of age. ADEA, § 12, 81 Stat. at 607. It later was amended to raise the upper age limit to 70, Age Discrimination in Employment Act Amendments of 1978, Pub.L. No. 95-256, § 3(a), 92 Stat. 189 (codified as amended at 29 U.S.C. § 631(a) (Supp. V 1981)).
. Although the majority suggests such a conclusion is dehors the record, it cannot seriously believe high school graduating classes are composed of persons over 40, particularly when the GMI President defined the GMI class makeup in the 18 or 20 year old category. Even if there were an occasional over 40 graduate, the GMI student population would be overwhelmingly below 40, and the legal analysis would be the same.