dissenting.
I respectfully dissent. As the majority recognizes, under 42 U.S.C. § 2000e-5(k), “a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though “not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). “ ‘A suit is frivolous if it has no reasonable basis, whether in fact or in law.’ ” Gekas v. Attorney Registration and Disciplinary Commission, 793 F.2d 846, 850 (7th Cir.1986) (per curiam) (quoting Tarkowski v. County of Lake, 775 F.2d 173, 176 (7th Cir.1985)). I agree with the district court that the EEOC’s suit was unreasonable on its facts and as a matter of law, and conclude that the district court’s award of $190,631 to Libbey-Owens-Ford Co. (“LOF”) and $132,877 to Local 19, United Glass and Ceramic Workers (“Local 19”) was a proper exercise of its discretion.
I
Until 1969 EEOC regulations provided that “the Commission will consider limitations or prohibitions imposed by ... state law or regulations as a basis for application of the bona fide occupational qualification exceptions.... An employer, accordingly, will not be considered to be engaged in an unlawful employment practice when he refuses to employ a woman in a job in which women are legally prohibited from being employed or which involve [sic] duties which women may not legally be permitted to perform because of hazards reasonably to be apprehended from such employment.” 29 C.F.R. § 1604.1(c) (1965), superseded, 45 Fed.Reg. 13,367 (1969). Title VII itself recognizes that employment practices “in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission” are immune from liability. 42 U.S.C. § 2000e-12(b); see also Albemarle Paper Co. v. Moody, 422 U.S. 405, 423 n. 17, 95 S.Ct. 2362, 2374 n. 17, 45 L.Ed.2d 280 (1975).
The Illinois Female Employment Act prohibited the employment of women for more than 8 hours a day or 48 hours a week. Ill.Rev.Stat. ch. 48, § 5 (1969); 1909 111. Laws 212. In 1970 the statute was adjudged to be preempted by Title VII. See Caterpillar Tractor Co. v. Grabiec, 317 F.Supp. 1304, 1308 (S.D.Ill.1970). In our *1165prior opinion on the merits, we explained how LOF complied with the Illinois statute:
LOF at all times obeyed the Illinois employment laws against overtime for females. Production of glass by its nature requires a certain amount of overtime. This is apparently because some operations require much more time than others; in order to keep production steady, some operations therefore must be continuous while others need not be; this situation is referred to as “balancing.” In order to comply with the Act, women employed full-time were assigned by LOF to work in non-continuous operations, where overtime was less frequently required because operations could be stopped or speeded up as necessity dictated. Overtime was avoided in those operations also by hiring part-time women employees, listing them on an “extra board” in order of seniority, and calling them in for work if replacements (for absentees) or extra production were needed. When called in, part-time women employees had an absolute right of refusal and often exercised that right. Full-time women employees were hired in order of seniority from those on the extra board who wanted full-time work. Under this system LOF was able to employ women and, despite the nature of its production, was able at the same time to comply with the Illinois law against overtime for women.
Le Beau v. Libbey-Owens-Ford Co., 727 F.2d 141, 143 (7th Cir.1984) (“Le Beau I”).
II
LOF relied upon the EEOC’s regulation to establish its immunity from liability under Title VII. After LOF submitted evidence to support its defense under 42 U.S.C. § 2000e-12(b), the burden of coming forward with evidence to rebut LOF’s defense shifted to the EEOC. See Majority Opinion at 1161 n. 12. To rebut LOF’s defense, the EEOC unsuccessfully attempted to show that LOF did not act in good faith in segregating its workforce, that its segregated workforce was not in conformity with the EEOC’s guideline, and that it did not rely on the EEOC regulations. In my opinion, the complete absence of any reasonable evidence on the part of the EEOC to support its claims demonstrates that the EEOC could not have reasonably believed that it could rebut LOF’s defense. I therefore find its suit frivolous.
A. LOF’s Alleged Bad Faith
The majority says that the EEOC “tried to show that LOF’s ‘good faith’ was pretext, eliciting testimony that LOF occasionally worked women over the statutory limit (without paying them overtime wages), Tr. 3528-32; 3874-80, and that LOF never sought to obtain from the State of Illinois an administrative exception for overtime production work for women, Tr. 3056.” Majority Opinion at 1161. With all due respect, the only testimony of LOF’s “bad faith” the EEOC elicited was that on occasions when LOF had exhausted its “extra board,” it rarely scheduled women to work overtime. Tr. 3529 (testimony of Dale Ferguson, Director of Industrial Relations at LOF’s Ottawa plant).
At pages 3874 to 3880 of the transcript, to which the majority also refers, counsel for the EEOC asked William Modesitt, Local 19’s former plant president, whether, if LOF’s records reflected an instance when a woman worked over the statutory limit, he would have known of it. Modesitt answered that he probably would have heard about it.1 Counsel’s questions, of course, *1166are not evidence and the witness’s answers do not establish that a woman actually worked over the statutory limit on even one occasion. Even if the assertions made by counsel for the EEOC are taken as evidence, they add nothing to the testimony that LOF rarely worked women above the statutory limits.
The EEOC regulation quoted above also provided that “[w]here state laws or regulations provide for administrative exceptions, the Commission will expect an employer asserting a bona fide occupational qualification pursuant to this paragraph to have attempted in good faith to obtain an exception from the agency administering the state law or regulation.” 29 C.F.R. § 1604.1(c)(3) (1965). As the majority notes, to prove LOF’s “bad faith,” the EEOC sought to establish that LOF did not apply for an exception under the Illinois statute. Majority Opinion at 1161. Nevertheless, the EEOC adduced absolutely no evidence that LOF never applied for such an exception to the Illinois Department of Labor, the agency charged by Ill.Rev. Stat. ch. 48, § 7 (1969), with the duty of enforcing the statute. Indeed, Lester Kramer, LOF’s Vice-President for Manufacturing Services, testified that LOF asked for an “exemption for a clerical female to work ten hours twice a month, and that was denied.” Tr. 3110-11; see also id. at 2862; Le Beau I, 727 F.2d at 145.2
Thus, the sum and substance of the EEOC’s evidence of LOF’s alleged bad faith is that women rarely worked overtime. Contrary to the majority, I believe that the merit of the EEOC’s suit must be judged in light of the evidence that the EEOC reasonably believed it could adduce at trial, not by what the EEOC “attempted to bring out” or “tried to show.” Majority Opinion at 1161. The EEOC’s complete absence of any reasonable evidence that would rebut LOF’s good faith defense raises a presumption that the EEOC could not reasonably have believed that it could rebut LOF’s defense. The EEOC has not explained its lack of evidence to rebut LOF’s evidence of good faith. In my view, it, therefore, was patently unreasonable for the EEOC to argue that LOF acted in bad faith on no other evidence than that women rarely worked overtime.3
B. Conformity with the EEOC’s Written Interpretation
The EEOC argued that its “guidelines specifically prohibit[ed] [LOF’s] sex-segre*1167gated job categories, seniority lists and layoff systems.” EEOC Merits Brief at 42-43. Indeed, it even maintained that LOF’s segregated workforce violated the EEOC’s regulation “even if the Illinois statute could be construed as requiring the defendant’s practices.” Id. The EEOC had advanced these arguments in an earlier suit against LOF involving identical employment practices under a similar state statute,4 and had lost. Raitz v. Libbey-Owens-Ford Co., No. 70-99 (N.D.Ohio Sept. 25, 1973). As the majority acknowledges, a suit is frivolous when “the plaintiff proceeds in the face of an unambiguous adverse previous ruling” or otherwise “is aware with some degree of certainty of the factual or legal infirmity of his claim.” Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1163-64 (7th Cir.1983). After Raitz, the handwriting was on the wall. The EEOC’s defeat put the Commission on notice of the legal infirmity of its claims as early as 1973 — two years before it intervened in the instant case. I, therefore, believe that the EEOC’s prosecution of this case was unreasonable as a matter of law, and, hence, frivolous.
The majority, however, seeks to discount the EEOC’s defeat in Raitz. Noting that summary judgment for LOF was granted by the Raitz court but denied by the court below, it reasons that the denial of summary judgment means that the EEOC’s suit must have been meritorious. See Majority Opinion at 1157-58. I respectfully disagree.
That a defendant’s motion for summary judgment is denied and a case is tried in no way suggests that the plaintiff’s suit is not frivolous. Summary judgment, of course, must be denied whenever there is a genuine issue of material fact. “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., — U.S. -, -, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The district court, therefore, simply identifies genuine issues of material fact — it does not decide them. See Stewart v. RCA Corp., 790 F.2d 624, 629-30 (7th Cir.1986). Thus, a district court’s determination that there is a genuine issue of material fact means only that the evidence is disputed. It does not mean that the evidence does not overwhelmingly favor the movant for the reason that the district court, in deciding whether to grant summary judgment, does not weigh the opposing evidence.5
I, therefore, disagree with the majority when it “say[s] that when a trial judge rules that there are facts under which a plaintiff can prevail, it is highly inconsistent for him to later find the suit frivolous because it is foreclosed as a matter of law.” Majority Opinion at 1158. To the contrary, it is perfectly consistent for a district court to deny summary judgment and, after trying the case, hold that the *1168plaintiffs suit is frivolous.6 Indeed, any number of courts have permitted cases to go to trial that they later have found to be frivolous. See, e.g., Lewis v. Brown & Root, Inc., 711 F.2d 1287 (5th Cir.1983) (finding suit frivolous after dismissing suit at close of plaintiffs case); Coleman v. General Motors Corp., 667 F.2d 704 (8th Cir.1981) (finding suit frivolous after 11-day bench trial); Harris v. Plastics Manufacturing Co., 617 F.2d 438 (5th Cir.1980) (finding suit frivolous after granting motion to dismiss under Fed.R.Civ.P. 41(b) at close of plaintiffs case); Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir.1976) (finding suit frivolous after dismissing it at close of plaintiffs case); Piljan v. Michigan Department of Social Services, 585 F.Supp. 1579 (E.D.Mich.1984) (finding suit frivolous after 8 years of litigation and dismissal at close of plaintiffs case pursuant to Fed.R.Civ.P. 41(b)); Steinberg v. St. Regis/Sheraton Hotel, 583 F.Supp. 421 (S.D.N.Y.1984) (finding suit frivolous after trial); Lacy v. General Electric Co., 558 F.Supp. 277 (E.D.Pa.1982) (finding suit frivolous after trial), aff'd, 786 F.2d 1147 (3d Cir.1986); Brisbane v. Port Authority of New York & New Jersey, 550 F.Supp. 222 (S.D.N.Y.1982) (finding suit frivolous after 6-day trial); Hill v. BASF Wyandotte Corp., 547 F.Supp. 348 (E.D.Mich.1982) (finding suit frivolous after 9-day bench trial); Colucci v. New York Times Co., 533 F.Supp. 1011 (S.D.N.Y.1982) (finding suit frivolous after trial); Dailey v. District 65, UAW, 505 F.Supp. 1109 (S.D.N.Y.1981) (finding suit frivolous after bench trial); Flora v. Moore, 461 F.Supp. 1104 (N.D.Miss.1978) (finding suit frivolous after 5-day trial), aff'd, 40 Fair Empl. Prac.Cas. (BNA) 856, 24 Empl.Prac.Dec. (CCH) ¶ 31,481 (5th Cir.1980); Sierra v. Datapoint Corp., 459 F.Supp. 668 (W.D.Tex.1978) (finding suit frivolous after trial); Reed v. Sisters of Charity of the Incarnate Word of Louisiana, Inc., 447 F.Supp. 309 (W.D.La.1978) (finding suit frivolous after granting dismissal at close of plaintiff’s case pursuant to Fed.R.Civ.P. 41(b)); Equal Employment Opportunity Commission v. Kip’s Big Boy, 424 F.Supp. 500 (N.D.Tex. 1977) (finding EEOC’s suit frivolous after trial); Sek v. Bethlehem Steel Corp., 421 F.Supp. 983 (E.D.Pa.1976) (finding suit frivolous after trial), aff'd, 565 F.2d 153 (3d Cir.1977), cert. denied, 436 U.S. 920, 98 S.Ct. 2268, 56 L.Ed.2d 761 (1978); Equal Employment Opportunity Commission v. Service Container Corp., 418 F.Supp. 898 (W.D.Okla.1976) (finding EEOC’s suit frivolous after trial).7
In this case, the district court’s opinion denying the defendant’s motions for summary judgment, upon which the majority relies, is simply a 2-page transcript of the *1169court’s decision from the bench.8 As an examination of the court’s oral opinion makes clear,9 the district court merely ruled that the issue of LOF’s good faith is a question of fact, rather than one of law. Because it did not consider the parties’ evidence, the district court’s opinion does not suggest that the EEOC’s suit was not frivolous. As another district court explained in a similar case:
This was clearly one of the most frivolous employment discrimination actions ever brought. The fact that it survived a summary judgment motion merely indicates that at the time that motion was brought, though the case seemed very weak, there did appear to, be genuine issues of fact sufficient, under the strict standards of this circuit, to warrant denial of the motion.
Steinberg, 583 F.Supp. at 424.
In addition to relying on the district court’s denial of summary judgment, the majority points to three pieces of evidence that it believes support the EEOC’s argument that LOF’s employment practices were not in conformity with the EEOC’s regulation: first, the EEOC “attempted to bring out that LOF had exported to Ottawa the same employment classifications developed in Toledo, Tr. 3065-3100, although these classifications had been created to comply with a stricter Ohio protective statute”; second, the EEOC “also sought to establish that some of the ‘male’ jobs at Ottawa did not require overtime that would have been illegal for women, Tr. 3106-3110”; and third, the EEOC sought to demonstrate “that alternative ways of organizing the workforce would have allowed women to work in jobs that did require overtime, Tr. 3143-46.” Majority Opinion at 1161. My review of the record persuades me, however, that, whatever the EEOC hoped to prove, it adduced no evidence that a single job from which women were excluded did not require overtime in violation of Illinois law.10 Moreover, the EEOC introduced no evidence that alternative methods of organizing the workforce would have been possible or feasible given the recurrent overtime imposed by the *1170glass manufacturing process.11 The absence of any such evidence is fatal to the EEOC’s claim that LOF’s segregated workforce was not in conformity with the EEOC’s guideline. I thus believe that it was unreasonable for the EEOC to argue that LOF did not conform to the Commission’s regulation given its lack of evidence essential to rebut LOF’s defense of compliance with the EEOC’s regulation.
C. Reliance on the EEOC’s Regulation
The majority states that the EEOC “sought to demonstrate that LOF did not actually rely on EEOC pronouncements in formulating its employment practices— suggesting that LOF did not conscientiously inquire into the relationship between Title VII and state law until 1968, when Nancy Raitz brought an EEOC charge against LOF, Tr. 3058-61.” Majority Opinion at 1161. That portion of the record to which the majority refers, however, establishes only that LOF did not perform an internal review of the contracts in effect at its plants prior to July 2, 1965, and that LOF did not have occasion again to consider LOF’s practices with regard to the EEOC’s guidelines until Nancy Raitz brought a charge before the EEOC in March 1968. Against this must be weighed evidence that we and the district court characterized as “overwhelming” evidence that LOF relied upon the EEOC’s regulation.12 Le Beau I, 727 F.2d at 148-49. Given the weight of evidence that LOF was aware of and sought to comply with the EEOC’s regulation, I find the EEOC’s argument that LOF did not rely on its guidelines unreasonable on the facts.13
*1171The majority also states that “[s]ince an award of attorneys’ fees is committed to the discretion of the district court, ... it would be improper to introduce a practice of affirming the exercise of that discretion on grounds that do not appear in the district court’s decision.” Majority Opinion at 1161 n. 12. With minor qualifications,14 I concur. The majority further states that we should not affirm the fee award because “[tjhe district court did not assess the quantity or quality of the EEOC’s evidence.” Id. If I thought that this were the case, I would agree; however, I believe that the district judge clearly took into account the EEOC’s evidence, or rather the lack of evidence, when he awarded fees. It should be remembered that the district judge presided over this case since it was assigned to him in 1974, and that he was intimately familiar with the facts. He already had discussed the parties’ evidence in detail in his opinion on the merits. See Le Beau v. Libbey-Owens-Ford Co., No. 71 C 1902 (N.D.Ill. Mar. 31, 1982). It is evident from the district judge’s reference in his opinion awarding fees to his opinion on the merits that he was well aware of the relevant considerations. To the extent that the majority suggests that the district judge should have repeated findings of fact that he already had made or should have made more detailed findings than were contained in his thorough opinion on the merits, they invite district courts to engage in rituals that exalt form over substance. See Kirchoffv. Flynn, 786 F.2d 320, 331 (7th Cir.1986) (Eschbach, J., dissenting from reversal of fee award).
With all due respect for my colleagues, if my brethren believe that the district judge has not assessed the quality or quantity of the EEOC’s evidence, then they should remand this case to the district court for further consideration of the merit or frivolity of the EEOC’s suit. See, e.g., Kirchoff, 786 F.2d at 328 (majority opinion). By declining to remand this case, they make themselves a discretionary decision which should be made in the first instance by the judge most familiar with this litigation.
Ill
When the EEOC intervened in this case in 1975, four years after suit was filed, it had no reasonable evidence that LOF and Local 19 had violated Title VII. After six years of discovery and a lengthy trial, it still has no reasonable evidence that the defendants violated Title VII. The EEOC has offered no explanation of its lack of any reasonable evidence in support of its theory of the case. This absence of evidence at trial is the best indication that the EEOC could not reasonably have believed that it could rebut LOF’s and Local 19’s defense of good faith reliance on and conformity with the EEOC’s guideline, and, therefore, that its suit was frivolous. The Commission’s intervention in and continued prosecution of this case was not only frivolous, unreasonable, and without foundation, but also approaches bad faith.15 I therefore would, affirm the district court’s *1172award of attorney’s fees to LOF and Local 19.
. The exact questions and answers were:
Q: And if I told you, sir, that Libbey-Owens-Ford’s records reflected on April 10, 1956 a woman named Ms. Clark worked 9'/2 hours, ... [w]ould you have been aware of that?
A: I probably heard about it.
Q: And if Libbey-Owens-Ford’s records reflected that Helen Dougherty on August 7,
1966 worked that pay period two 81A hour days, would you have known about that?
A: I may have heard about that also.
Q: And if Libbey-Owens-Ford’s records reflected that in the pay period ending June 26, 1966 a Ms. Eastman worked a 16-hour day, double, would you have known about it?
*1166A: I probably heard about that one because that was unusual.
Tr. 3875-78. The probative value of these three alleged incidents, one of which dates to 1956— nine years before the issue of LOF’s compliance with Title VII could have arisen — to establish that the EEOC’s suit was not frivolous is not apparent to me.
. The portion of the transcript to which the majority refers simply consists of Kramer’s testimony that as of 1965 Illinois law allowed exceptions only for emergencies or during wartime. Tr. 3056-57; see also Ill.Rev.Stat. ch. 48, §§ 5.1 (exceptions), 8.1 (emergency wartime permits) (1969).
. The majority seems to suggest that the merit of the EEOC’s suit should not be judged in light of the evidence the EEOC reasonably believed that it could introduce at trial. For example, it criticizes the district court for placing "too much reliance ... on the facts as found at trial to support a finding that the suit should not have been brought.” Majority Opinion at 1160. Furthermore, the majority’s conclusion that the EEOC’s suit was meritorious rests upon its view of what the EEOC "sought to establish” at trial. Majority Opinion at 1161.
I agree with the majority that we should not adjudge the EEOC’s suit frivolous simply because it lost at trial. See Majority Opinion at 1160 (quoting Christiansburg Garment Co., 434 U.S. at 422, 98 S.Ct. at 700). I nevertheless believe that the merit of the EEOC’s suit cannot be measured by the Commission’s unfounded expectations of what it hoped to prove, but must be based upon the evidence that the EEOC reasonably believed it could establish at trial. Absent any other explanation (such as the unexpected unavailability of a witness), the absence at trial of any reasonable evidence as to an essential element of a case indicates that the plaintiff could not reasonably have believed that it could establish that element at trial. Since the EEOC has offered no explanation of the discrepancy between what it attempted to show at trial and what it actually established at trial, the absence at trial of any reasonable evidence to support the EEOC’s contentions indicates that it could not reasonably have believed that it could establish that LOF violated Title VII.
. As the majority notes, Majority Opinion at 1161, the Ohio statute at issue in Raitz was stricter than that of Illinois in that the Ohio statute not only prohibited the employment of women for more than 8 hours a day and 48 hours a week, but also barred women from any job that required lifting over 25 pounds, that did not receive at least a half-hour lunch break, or that involved the use of an electric truck. Tr. 3071. The EEOC, however, did not demonstrate that LOF’s job classifications were any more restrictive than required under Illinois’ less exacting statute.
. For example, the critical issue in employment discrimination suits often is the defendant’s intent. See Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 513 (7th Cir.1986). "Thus, the credibility of witnesses is often decisive." Id. Because the credibility of witnesses is crucial, a plaintiff can make out a genuine issue of material fact simply by offering proof that “casts doubt upon the veracity of the employer’s stated reason for its action.” Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 98 (7th Cir.1985) (citing Herman v. National Broadcasting Co., 744 F.2d 604, 610 (7th Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985)). Thus, whenever a case turns on the credibility of a witness’s testimony as to the defendant’s intent, the suit will survive summary judgment and go to trial, regardless of the weight of the evidence in the defendant’s favor.
. By way of illustration, a plaintiff in an employment discrimination case might prevail if his testimony as to the defendant’s discriminatory intent is credited, while the defendant’s testimony as to its lack of any discriminatory intent is discredited. However, the evidence may overwhelmingly indicate that the plaintiffs testimony is not to be believed. In such a case, the trial judge can rule that there are facts under which the plaintiff could prevail at trial, i.e,, the plaintiffs story might be believed, and consistently find that the suit was frivolous.
. In Soderbeck v. Burnett County, 752 F.2d 285, 295 (7th Cir.), cert. denied, — U.S. -, 105 S.Ct. 2360, 86 L.Ed.2d 261 (1985), cited by the majority, we stated that “[s]ince the plaintiff succeeded in making out a prima facie case against these defendants, that is, a case strong enough to withstand a motion for directed verdict (incorrectly granted by the district judge), the case against them was not frivolous.” In that case, the district court directed verdicts at the close of plaintiffs case in favor of three of the five defendants. The jury then returned verdicts against the two remaining defendants. On appeal, we affirmed the judgment against one of the defendants and reversed the directed verdicts in favor of the three defendants. (We also reversed the judgment against the other defendant for a reason not relevant to this case). We reversed the award of attorney’s fees to the three defendants because, having lost on appeal, they were not prevailing parties. In addition, the plaintiffs case, which was strong enough to win judgment against one of the defendants, clearly was not frivolous. Our passing statement that the plaintiffs case was not frivolous because it was strong enough to withstand a motion for directed verdict thus was unnecessary to our decision, and cannot dictate the disposition of this appeal.
. In contrast, the trial transcript consists of 4493 pages.
. The district court’s complete discussion of defendants’ motions for summary judgment consists of the following:
Defendants argue also, assuming arguendo liability on their part, that plaintiffs are entitled to no remedy under Title VII as a matter of law due to the defendants’ good faith reliance on the Illinois Female Protection Statute. Specifically, the defendants refer to the tension that existed between the federal law, which aimed at insuring equality of sexes in employment opportunities, and the state law which was designed to prohibit the employment of women beyond a specified number of hours per day and per week.
The question of whether the defendant Lib-bey-Owens-Ford’s — whether that defendant's good faith reliance on the state protective statute is a bar to damages is a question of fact and cannot be decided as a matter of law. While Section 713(b) of Title VII does exempt a defendant employer who was acting in good faith from liability for monetary damages, it requires that the defendant employer "plead and prove that the act or omission complained of was done or omitted in good faith.” 42 USC Section 2000(e)(12)(b).
In other words, the defendants need to show that they actually acted in good faith. It is not sufficient to establish the existence of the state protective statute to invoke the good faith defense; rather, the defendants would need to show that they in fact knew of and adhered to the requirements of the state protective statute and that any violation of Title VII was unavoidable and a direct result of their adherence to the state protective statute.
Wherefore, for the foregoing reasons, the companion motions for summary judgment of the defendant Libbey-Owens-Ford and of the defendant Local 19 should be, and the same hereby are, denied.
Tr. of Hearing on Motion for Summary Judgment 254-55 (May 23, 1979).
. That portion of the transcript to which the majority refers, Tr. 3065-3100, 3106-3110, establishes that women were excluded from certain jobs at the Toledo plant that required lifting of more than 25 pounds of materials and from certain jobs in the Plastic and Assembly Departments at the Ottawa plant that required daily overtime for clean-up. The record, however, does not establish that any of the jobs from which women were excluded did not require overtime in violation of Illinois law. See Tr. 3104.
. That portion of the transcript that the majority cites, Tr. 3143-46, establishes only that from July 1965 until March 1970 LOF did not consider alternative methods of organizing its workforce. As the district judge noted, Tr. 3145, the evidence does not establish that any alternative was possible or economical. Indeed, LOF adduced testimony that the alternatives proposed by the EEOC were uneconomical or unworkable. See Tr. 3186-87.
. For example, LOF officers became familiar with Title VII "almost as soon as it was passed." Tr. 2890. On June 25, 1965, before the EEOC even issued its guidelines, LOF circulated a memorandum to its plant managers declaring that the company would comply with Title VII, but would have to proceed cautiously until some guidelines were established. See Le Beau I, 727 F.2d at 148; see also Tr. 3195-97. In November, 1965, after the EEOC issued its guidelines, LOF distributed copies of the regulations to its officers. Tr. 2896-97.
. In a footnote, the majority states that the EEOC "put in some evidence tending to show that the asserted 'reliance' was merely pretext." Majority Opinion at 1161 n. 12 (emphasis in original). The evidence to which the majority refers is testimony that LOF imported the “extra board” system from its Ohio plant and that LOF did not consider permitting women to work overtime in departments other than the plastics and assembly departments. I have already addressed the former point. See Dissent at 1167 n. 4.
As for the latter point, I respectfully believe that the majority misunderstands the testimony as to how overtime was scheduled. There were two types of overtime at LOF’s Ottawa plant: the first was daily overtime, Le., working over 8 hours in one day, and the second was weekend overtime, that is, working on Saturday or Sunday. Tr. 2835. Weekend overtime, which was required to "balance” production, Tr. 2838, 4341-42, 4409-10, was voluntary. Tr. 3114, 4333-34, 4424-25. In addition to weekend overtime, however, particular jobs also required daily overtime. Rather than being voluntary, daily overtime was involuntary in the sense that men who “took certain jobs ... knew when they took the job that the overtime was required, [and] that they would have to work overtime.” Tr. 2851; see abo Tr. 2836, 3084, 3142-44.
Moreover, there would be occasions — perhaps one to six times a year — when LOF, in response to high demand, would schedule the plant to work six days in one week. See Tr. 4420-23. In contrast to weekend overtime required to balance production, overtime on these scheduled days was not voluntary. See Tr. 4421. Furthermore, the system of "split shifts” (in which two employees would split the shift of an absent worker so that the employee on the earlier shift would work 4 hours longer and the employee on the later shift would come in 4 hours earlier) was used extensively in three-shift departments when the labor pool could not supply replacements for absent workers. See Tr. 2816-17, 3187.
The evidence thus establishes that LOF did not employ women in departments other than plastics and assembly because overtime was required for particular jobs, scheduled days, and split shifts. These reasons clearly were proper reasons under Illinois law and the EEOC guidelines for excluding women from jobs outside the plastics and assembly departments. Thus, that the EEOC adduced evidence that LOF did not consider employing women in the other depart*1171ments for only 8 hours a day does not change my conclusion that the EEOC could not reasonably have believed that it could rebut LOF’s defense.
. It surely would be proper to affirm a discretionary decision on a ground that did not appear in the district court’s opinion if we conclude, on the basis of the overwhelming evidence in the record before us, that the contrary decision would have been an abuse of discretion. Moreover, the record as a whole often makes clear that the district judge implicitly considered matters that might not appear expressly in the district court’s opinion. See Kirchoff v. Flynn, 786 F.2d 320, 328-31 (7th Cir.1986) (Eschbach, J., dissenting). It is proper to affirm the district court’s decision so long as we conclude that the district court relied upon the ground on which we affirm.
. For example, until it was finally forced to abandon its claim in 1978, the EEOC alleged that LOF continued to discriminate against women. Moreover, as late as early 1981 — only 9 months before trial — the EEOC maintained that, since state law conflicted with Title VII, the Illinois Female Employment Act was "void and not enforceable since July 2, 1965." Plaintiff-Intervenor’s Response to Request for Admission of Fact, at 7 (Jan. 8, 1981). Assertions such as these that are clearly contrary to the facts and the law suggest that the EEOC acted in subjective bad faith.