dissenting. I respectfully dissent.
The trial judge held, and the majority agrees, that the plaintiff failed to establish a prima facie case of sex discrimination in that she failed to prove that she was qualified for any employment position for which she applied. Because I am of the opinion that the plaintiff has shown that she possessed the qualifications required by the employer, I would hold that the plaintiff has made a prima facie showing of employment discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The district court did not consider whether the defendant met its burden of rebutting plaintiff’s showing by proving a legitimate business reason for preferring to hire the male applicants instead of plaintiff. Therefore, I would remand the case so that this determination could be made.
The distinction between job qualifications and legitimate employer preferences is crucial under Title VII and bears clarification in the light of the majority decision today. Qualifications must be distinguished from legitimate preferences because unless a Title VII plaintiff can prove initially that he is qualified for the position sought, the burden does not shift to the employer to explain why that applicant was not hired. McDonnell Douglas Corp. v. Green, supra. It is settled that asserted qualifications must be scrutinized for job-relatedness, for, otherwise, “qualifications” can be devised which screen out applicants solely on the basis of sex or race. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
Similarly, qualifications, however job-related, must be uniform for all applicants in any particular job category, or else so-called qualifications can be required or not depending on illegitimate criteria such as the sex or race of the applicant. If the courts permit a job applicant to be called “unqualified” for not possessing a quality that is not required of all applicants, no prima facie case can be made and the burden will not shift to the employer to explain what may be a discriminatory application of even a job-related criterion. Therefore, employment criteria which are shown to be preferred rather than required must not be termed qualifications for purposes of a plaintiff’s prima facie case.
In Davis v. Weidner, 596 F.2d 726 (7th Cir. 1979), an employer argued that the plaintiff there was not as qualified as other applicants for the position. It was contended that an additional element for establishing a prima facie case of employment discrimination be that the plaintiff’s rejection did not result from a “relative lack of qualifications.” 596 F.2d at 730 (emphasis in original). In holding that the plaintiff had made a prima facie showing of discrimination, we stated that the showing of a relative lack of qualifications was not properly a prerequisite of a prima facie case but was instead part of the employer’s response. In Davis v. Califano, 198 U.S.App.D.C. 224, 613 F.2d 957 (D.C.Cir.1979), the court held that a showing of “the minimum objective qualifications” for a job is all that is necessary in order to make out a prima facie case. The court stated that other qualifications such as experience, unless a minimum *1204job criterion, did not have to be asserted by a plaintiff to make a prima facie case.
In the case at bar, plaintiff met the minimum qualifications for the job. The two jobs, general laborer and truck driver, for which plaintiff applied were labeled “unskilled.” The Company announced no requirements or qualifications for the job. The Company’s contract with the union stated no qualifications for unskilled jobs although explicitly listing qualifications for skilled jobs. Further, in the personal interview and many telephone conversations plaintiff had over a period of years concerning her desire for employment, she was never told that she was not qualified for the work for which she applied.
The trial judge erroneously relied on plaintiff’s physical size and her lack of mining experience to prove her lack of qualification for an unskilled job. The Company’s Personnel Administrator testified that the plaintiff’s physical size was of no consequence in its decision and that the requirement of mining experience applied to skilled, not unskilled, jobs. Experience with heavy machinery, apparently found by the majority of this court to be the “qualification” for an unskilled position which plaintiff lacked, was conceded by the Personnel Administrator to be a basis for selection only “if it was available” when a vacancy occurred. If no applicant with experience in heavy machinery was available, an applicant without such experience was hired. Therefore, experience with heavy machinery was not a minimum requirement for the job. Plaintiff should not have been required to prove she had that experience in order to show that she was qualified.
The plaintiff is a woman who applied for a job for which she was qualified and for which the employer was seeking applicants. Despite her qualifications she was rejected, although subsequent to her application male applicants were hired in the job category for which she applied. It is stipulated that defendant employed no female applicants in union positions in its Indiana mines until July 1976. I would therefore hold that the plaintiff met her burden of proving a prima facie case under McDonnell Douglas.
The burden then shifted to the defendant to show a legitimate business reason for hiring those male applicants instead of the plaintiff. The crucial issue that emerged was whether the Company met that burden. That issue was never addressed by the trial judge because he erroneously found that the plaintiff had not made a prima facie case. Thus, an essential finding is absent, namely, whether the Company proved that in each instance it had a legitimate business reason for hiring a male applicant over the plaintiff, a woman. Because the trial judge misconceived the respective burdens, I think, in the interest of fairness to both parties, the judgment should be vacated and the case remanded for further proceedings. The district judge should make the essential finding on this issue, either on the present record or an extended record if additional evidence seems justified.