concurring.
I concur but write separately to express my view of this case which has had a long, protracted, and I would suppose, painful journey with multiple hearings, trials and appeals. Extensive, detailed findings of fact and conclusions of law have been entered by the trial judge and multiple opinions have been written by the trial judge and the Court of Appeals along the way. It is difficult to conceive what more could or should be added. In any event, and to borrow an old phrase from Justice Felix Frankfurter, I believe the horse should be soon curried under the facts of this case.
In my view, Burdine, supra, is controlling and dispositive. The W.E.A.L. agreement in question is irrelevant and cannot buttress a claimed violation of Title VII. Assuming, arguendo, that the trial judge was correct in finding “the plaintiff and Edling were, on balance, equally qualified for the position,” it does not follow that the defendant must, a fortiori, select the minority, or as in this case, the female candidate for the position in question. Title VII does not so obligate an employer. In Burdine, the Supreme Court stated at 101 S.Ct. at 1096-97:
The court’s procedural rule harbors a substantive error. Title VII prohibits all discrimination in employment based upon race, sex and national origin. “The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and .. . neutral employment and personnel decisions.” McDonnell Douglas, supra [411 U.S. 792] at 801, 93 S.Ct. [1817] at 1823 [36 L.Ed.2d 668]. Title VII, however, does not demand that an employer give preferential treatment to minorities or women. 42 U.S.C. § 2000e-2(j). See Steelworkers v. Weber, 443 U.S. 193, 205-206, 99 S.Ct. 2721, 2728-2729, 61 L.Ed.2d 480 (1979). The statute was not intended to “diminish traditional management prerogatives.” Id., at 207, 99 S.Ct., at 2729. It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. Furnco Construction Co. v. Waters, 438 U.S. [567] at 577-578, 98 S.Ct. [2943] at 2949-2950 [57 L.Ed.2d 957].
The views of the Court of Appeals can be read, we think, as requiring the employer to hire the minority or female applicant whenever that'person’s objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to chose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination. Loeb v. Textron, Inc., supra, [600 F.2d 1003] at 1012, n. 6; see Lieberman v. Gant, 630 F.2d 60, 65 (CA2 1980).
So long as the employer bases his selection decision on lawful criteria, he is free to make his own hiring decision unfettered by court or other interruption. I simply can find no persuasive evidence in this record that defendants based their hiring decision upon unlawful criteria or that the selection reasons were a pretext for discrimination.
I, therefore, concur.