(concurring in part, dissenting in part):
On the basis of a district court finding that plaintiff Brown upon asking *1384defendant for employment as a welder was told “that it was premature to try to place a Negro in a job as a welder with the defendant” the majority opinion rules that defendant violated a century-old civil rights statute, 42 U.S.C. § 1981, and thereby became liable to the plaintiff as a matter of law for back pay from the time of his initial employment in 1960 until he was given a job as a welder-trainee in 1961. I believe this result is not commanded by this statute and that in any event the decision should not be made in this court. I therefore respectfully dissent from this part of the majority opinion and in view of the far-reaching consequences of the decision in this rapidly-developing area of the law, I feel that my opposing views should be recorded.
For purposes of discussion I will assume that the evidence supported and the district court made a positive finding of racial discrimination by defendant against the plaintiff prior to his employment as a welder-trainee in 1961.1 I agree with the majority that the evidence amply supported the district judge’s findings that thereafter defendant did not discriminate against the plaintiff and that plaintiff’s claims under Title YII of the Civil Rights Act of 1964 were properly rejected. But I seriously question whether the court-fashioned remedy of back pay should be inexorably employed in a Section 1981 case involving racial discrimination in employment which occurred prior to the enactment of Title VII. I think there are compelling reasons why it should not be so used.
Cited by the majority in support of the back pay award in this case are two cases from the Fifth Circuit and one from the Seventh.2 These cases hold that Section 1981 affords a right *1385to sue for “private” racial discrimination in employment and that this right was not repealed by the enactment of Title VII of the Civil Rights Act of 1964. Other courts have reached the same conclusion.3 None of these cases involved an award of back pay for a violation of Section 1981 which occurred prior to Title VII, however, and diligent research has failed to unearth such a case. Since Section 1981 for the first one hundred years of its existence was construed to apply only to state action and not to affect dealings between private individuals, this paucity of precedent is readily understandable.
The extension of Section 1981 to cover private employment contracts had its genesis in the celebrated case of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), a case decided over two years after this one was instituted and eight years after defendant’s alleged violation of Section 1981. In holding that Section 2 of the Civil Rights Act of 1866 (now 42 U.S.C. § 1982) barred racial discrimination by private individuals in the sale or rental of property the Supreme Court in Jones rejected as dictum its previous pronouncements which had led to the general understanding of the scope of these statutes and expressly overruled Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906), to the extent it suggested a contrary holding. With unerring logic the courts began treating this “quickening of the statutory Lazarus” (Section 1982) as necessarily reviving its companion, Section 1981, and making it applicable to racial discrimination in purely private contracts of employment. Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970).
As indicated, this court is the first one to apply the new rule retrospectively in a back pay claim. The result is that the defendant is required to pay damages for conduct which was not unlawful under the law as it existed at the time of the alleged wrong — a liability which the most learned attorneys would not have been able to counsel defendant against at the time. While the court undoubtedly has the power to give retroactive effect to an overruling decision4 (which Jones effectively was in this context), I think to do so in this case works an unnecessary injustice.
It must be remembered that the federal statutes prescribe no specific remedies for violations of the Civil Rights Act of 1866. Thus the courts in the exercise of their equitable powers are left to “fashion” their own remedies. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). But surely this power to order a defendant to pay wages for a job never performed includes the power to exempt from such liability an employer who was not in violation of any known law at the time the alleged liability was being incurred.
At the very least the case should be remanded to the district judge for the purpose of determining whether in his discretion the new law should be applied retroactively to award the plain*1386tiff in this case back pay.5 Authority for this position is to be found in a decision of this court just published, Tillman v. Wheaton-Haven Recreation Association, Inc., 451 F.2d 1211 (4th Cir. 1971). In that case Chief Judge Haynsworth, while recognizing that the Civil Rights Act of 1866 was not impliedly repealed by the enactment of the Civil Rights Act of 1964, applied the salutary principle of statutory construction that where two statutes relate to the same thing they must be read as together constituting one law and should be harmonized and effect given to each, if possible. The private club exception in the public accommodations section of the 1964 Act was held to operate as an exception to the Act of 1866 as well.
And so it is here. The 1964 Act makes an award of back pay discretionary with the trial court.6 In order to harmonize this provision with the con-struetion now being placed on Section 1981 it should be held to operate as a limitation on that statute and to vest in the district court the power to award or withhold back pay in its sound discretion. In this view it may fairly be said that the district judge has already exercised his discretion to deny this plaintiff back pay under Section 1981, and his judgment in this respect should be affirmed.
Additionally, if Section 1981 is to be given retroactive effect, then in fairness it seems to me that the defendant should be allowed to move for leave to amend its answer to plead the statute of limitations, and this motion, too, would be addressed to the discretion of the district judge.7
Finally, if the result reached by the majority is permitted but not required by the law as now construed, I think this is not a case in which this court or the district court should exercise a *1387discretion to award this plaintiff back pay. In the few short years the Civil Rights Act of 1964 has been in effect much progress has been made in achieving its laudatory objectives. Some of this is the result of coercive court orders, but voluntary action of employers acting in good faith to eradicate the longstanding evils which existed prior to the statute have played a tremendous part in this progress. Here, for instance, we have an employer who was voluntarily taking steps to eliminate racially-discriminatory employment practices long before the Civil Rights Act of 1964 was passed. But in spite of this forward-looking action, defendant is told that it must respond in damages for something which was not even against the law at the time it was done. It may be that this approach will encourage voluntary action and a softening of the racial prejudices responsible for preexisting inequities in employment. With all deference I suggest the contrary as being more accordant with reality. The concept of conciliation which pervades Title VII should also be engrafted on Section 1981. See Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3rd Cir. 1971). Courts should be slow to employ harshly coercive remedies in cases where, as here, there has been an honest effort on the part of an employer to eliminate discriminatory employment practices and no current violation of any law has been found.
I concur in the majority opinion insofar as it rejects plaintiff’s Title YII claims and directs retention of jurisdiction of the class action claim for a reasonable time.8 I respectfully dissent from that part of it which awards plaintiff back pay under 42 U.S.C. § 1981.
. Actually, the evidence was not all one way on this point. The plaintiff, Marvin Brown, son of a long-time Negro employee of the defendant company, began working for defendant during vacation time while he was still in high school. Hubert Craig, Sr., the company’s president and owner, took a special interest in the plaintiff, encouraged him to go to college and helped finance a two-year welding course for him at A & T College in Greensboro, North Carolina. Upon completion of this course plaintiff returned to Gastonia and went to work full-time for defendant in June, 1960. He asked for employment as a welder, a job which paid more money, but the record is not clear as to whether there were any such jobs open at the time. Plaintiff also asked to be allowed to take a basic welding course offered by the company, and he complained when defendant’s plant manager failed to make room for him to take the course. The manager explained that only elementary welding and shop math were taught in the course and that plaintiff had already successfully completed these courses in his college training.
Later the defendant’s president again intervened on his behalf and instructed the plant manager to give plaintiff the first welder-fabricator trainee job that came open. This was done and arrangements were made for defendant’s best instructor in welder-fabricating to teach plaintiff this highly-skilled work. Defendant’s personnel director was instructed to follow plaintiff’s progress and to make sure he was given opportunity to improve and receive merit raises as he became qualified.
Brown worked for defendant about four and one-half years during which time he progressed “at least as good as average among the welders in the plant” and qualified for thirteen pay raises. His work was not always of acceptable quality, however, and there was evidence of friction between him and defendant’s supervisory personnel from time to time. Finally he quit his job voluntarily in January, 1966 and he instituted this suit on May 31, 1966.
After leaving defendant’s employment plaintiff took a welding job with another company, but was later fired because of poor quality work, refusal to follow instructions, and disobedience of instructions. The picture emerges of a malcontent who experienced difficulty in adjusting to the requirements of employment quite apart from any racially-discriminatory policies of his employer. The district court so found. 325 F.Supp. 541, 543 (1971).
. Boudreaux v. Baton Rouge Marine Contracting Company, 437 F.2d 1011 (5th Cir. 1971) ; Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970) ; cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 *1385L.Ed.2d 231 (1971) ; find Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).
. See, for instance, Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3rd Cir. 1971) ; Tolbert v. Daniel Construction Company, 332 F.Supp. 772 (D. S.C.1971) ; Jamison v. Olga Coal Co., 335 F.Supp. 454 (S.D.W.Va.1971).
. See Legg’s Estate v. Commissioner of Internal Revenue, 114 F.2d 760, 764 (4th Cir. 1940). The rule is subject to several exceptions. It has been held not to apply in cases where there has been justifiable reliance on decisions which are subsequently overruled and those who have so relied may be substantially harmed if retroactive effect is given to the overruling decision; where the purpose of the overruling decision can be achieved without giving it retroactive operation; or where retroactive operation might greatly burden the administration of justice. Annot., 10 A.D.R.3d 1371. I think all of these exceptions are applicable here.
. There is nothing in the opinion of the district judge to indicate that he considered the possible applicability of Section 1981 to this case. It is not likely that the question was even raised, for at the time the case was tried, only the Waters case from the Seventh Circuit had been decided, and it was then pending in the Supreme Court on petition for cer-tiorari. The Fifth Circuit cases of Boud-reaux and Banders had not been decided. The question seems to have been raised for the first time in plaintiff-appellant’s brief filed in this court and defendant apparently did not deem the point of sufficient merit to warrant a response in its brief.
. 42 U.S.C. § 2000e-5(g) reads in part as follows:
“If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without hack pay ...” (Emphasis added.)
In addition, Title VII contains provisions for conciliation through EEOC and certain time limitations. An award of attorneys fees is made discretionary. One court has already held that the provisions of Title VII may be intentionally bypassed by a Section 1981 plaintiff. Caldwell v. National Brewing Company, 443 F.2d 1044 (5th Cir. 1971). If this be the law, one wonders if any future plaintiff will bother to comply with the ritual prescribed by Title VII where limitless relief is available under Section 1981.
. In view of the state of the law at the time the action was instituted defendant’s failure to plead the statute initially is excusable. Plaintiff’s claims under Title VII were clearly not barred, and Jones v. Alfred II. Mayer Co. which gave rise to the change in the law with respect to Section 1981 claims had not been decided.
Since there is no federal statute of limitations prescribed for claims under Section 1981, the law of North Carolina would apply. 42 U.S.C. § 1988. Whether this would be the three-year statute, N.C.G.S. 1-52(2), or the ten-year statute, N.C.G.S. 1-56, poses an interesting question as to which I express no opinion. See Lazard v. Boeing Co., 322 F.Supp. 343 (E.D.La.1971). The claim would be barred under the three-year statute, but if the ten-year statute applies, the floodgates will be open to suits under Section 1981 in North Carolina on claims some of which may antedate Title VII by as much as three years.
. I should say that with respect to the class action aspect of the case I question whether this plaintiff who voluntarily terminated his employment with defendant over six years ago is qualified to represent the class under Rule 23(a) F.R.C.P., but this court has previously found similar changes in a plaintiff’s employment status not to moot the case for the class. Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971). Other courts have ruled similarly. Tipler v. E. I. duPont de Nemours & Co., 443 F.2d 125 (6th Cir. 1971) ; Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969).
In view of the express language of 42 U.S.C. § 2000e-5(k) authorizing the award of attorneys fees in the discretion of the court I likewise have some reservations about the court’s holding that plaintiff is entitled to attorneys fees as a matter of law. But here again this court seems to have construed the statute to make the award of attorneys fees mandatory. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971).