dissenting.
I.
In this Title VII case, the district court found that Jeffrey B. Ferguson, a black Greyhound employee, was discharged because of his failure to comply with Greyhound’s “no beard” policy applicable to employees in public contact positions; that he was unable to comply with Greyhound’s “no beard” policy because he had a severe case of pseudofolliculitis barbae (PFB); that this condition “is a skin disorder that primarily affects black males”; that the “no beard” policy has a discriminatory impact on black employees; that the EEOC established its prima facie case; and that Greyhound failed to establish its business necessity defense. The issue on appeal, therefore, is whether these findings can be affirmed under the “clearly erroneous” test which we are bound to follow. Fed.R.Civ.P. 52(a). Surely we must use no different standard and accord no less weight to the district court’s findings that an employer has violated Title VII than we have used in affirming the district court’s findings that an employer has not violated Title VII. See Scott v. University of Delaware, 601 F.2d 76, 81 (3d Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979); Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 (3d Cir. 1979) (per curiam); Walton v. Eaton Corp., 563 F.2d 66, 74 & n.9 (3d Cir. 1977) (en banc).
The majority’s holding that plaintiff in this case did not even establish a prima facie case of discrimination is inconsistent with our frequent representation that we are not “overly demanding in the proof required for a prima facie [Title VII] case.” Jackson v. U.S. Steel Corp., 624 F.2d 436, 440-41 (3d Cir. 1980); Whack v. Peabody & Wind Engineering Co., 595 F.2d at 193 n.11. Moreover, the new rules it enunciates unnecessarily restrict the disparate impact theory and may thereby hamper the effectiveness of such litigation as an enforcement mechanism under Title VII.
II.
Some additional detail regarding the nature of PFB may be useful to an understanding of the issues. As the district court explained, PFB
is caused by sharp tips of recently shaved facial hairs penetrating the skin and causing an inflammatory reaction. The disease occurs in persons with curly or kinky hair follicles. After shaving, the curved hair follicles cause the already curly hair to curve back into contact with the skin surface, pierce and reenter the skin, causing a pseudofollicle.
The inflammatory reaction may result in papules, pustules or abscesses. An individual with PFB may induce remission by growing a beard. Remission in such cases is nearly total and complete. An individual can, however, redevelop the disease by resuming shaving.
The court’s finding that Ferguson was unable to comply with Greyhound’s “no beard” policy is supported by evidence on the record that Ferguson began to develop PFB symptoms in 1976; that he tried chemical depilatories in both powder and cream form in order to avoid shaving while complying with the “no beard” policy, but the depilatories “burned” his face and aggravated his skin inflammations; that he tried alternative shaving techniques without success; and that he found the only effective method to avoid the condition was to abstain from shaving.
The court found that Ferguson was advised by his doctors to grow a beard as a curative and preventative measure. At Greyhound’s instructions, Ferguson visited a free medical clinic where, after examina*196tion, Dr. Michael LeWitt diagnosed his condition as PFB and concluded that it was “medically indicated for Mr. Ferguson to retain his beard.” Thereafter, Ferguson was examined by Greyhound’s company doctor, Dr. Richard Baker, who noted Ferguson’s scars, and wrote “shaving seems to produce abscesses ... I hereby do allow him to grow a beard.” Yet a third doctor, Dr. John Covington, also recommended after examining Ferguson that he avoid shaving. Nevertheless, Greyhound refused to make a medical exception for Ferguson so that he could be promoted to the public contact job for which he was qualified.
Based on the evidence introduced at trial, the court made the critical finding that the “ ‘no beard’ policy, while racially neutral on the surface, in fact has a discriminatory impact on black employees. Black males who are otherwise qualified, are barred from higher paying positions solely because of a condition peculiar to their race.”
Initially, some comment is required about the majority’s reluctance to acknowledge that a policy against beards can constitute a Title VII violation. At 190, n.3. Its reluctance demonstrates the fundamental difference between my view and what appears to be the majority’s view as to the scope and function of that statute. I assume, as have almost all of the judges who have previously considered the issue, that the purpose of Title VII, inter alia, was to prohibit practices and policies that have a discriminatory impact on members of one of the groups within its protection. If a “no beard” policy falls more heavily on blacks, it is no less within the ambit of Title VII than the requirement that an applicant have a diploma or pass a test, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), meet minimum height and weight standards, Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), or demonstrate certain lifting ability, Mitchell v. Mid-Continent Spring Co., 583 F.2d 275 (6th Cir. 1978), cert. denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 396 (1979). Any employment policy shown to fall more heavily on a protected group than on those not within the group can be maintained, if at all, only if it is functionally related to the employment in question (an issue the majority does not reach). A “no beard” policy is to be treated no differently than any other employment policy, and indeed should be subjected to exacting inquiry since the skin condition it affects results from an immutable physical characteristic.
The majority, in the holding represented by Part II of the opinion, does not take issue with the underlying factual findings that PFB primarily affects black males, and that the “no beard” policy bars otherwise qualified black males from higher paying positions solely because of this condition. Instead it enunciates a concededly tautological rule, new to this court and without any support in the holdings or reasoning of any Supreme Court case, that “no violation of Title VII can be grounded on the disparate impact theory without proof that the questioned policy or practice has had a disproportionate impact on the employer’s workforce." At 192 (emphasis added). The majority holds that the district court’s finding of disparate impact cannot be sustained because “the percentage of black male employees to total male employees in jobs at the Philadelphia terminal covered by the no- beard policy has exceeded substantially the comparable percentage of black males in the labor force and in the general population in the Philadelphia Standard Metropolitan Statistical Area (SMSA).” At 191.
This deceptively subtle transformation of the disparate impact method of proving discrimination can have a devastatingly deleterious effect on enforcement of Title VII. Although the majority does not discuss the implications of its rule, it is apparent that it will mean that an employment policy which excludes applicants as a result of a race-linked characteristic will, nonetheless, not be considered to have a disparate impact upon members of that race if the percentage of that racial minority in the employer’s workforce is equal to the percentage of that minority in the general population. This rule would establish by judicial fiat an *197invidious quota defense since a black' applicant, excluded solely because of inability to comply with the employment policy, will be deprived of his or her employment opportunity because the employer has already hired the required percentage of blacks.
The majority thus inverts the use of population statistics heretofore recognized in Title VII eases by treating the percentage of that minority in the labor force or in the general population as the outer limit to which an employer is obliged to extend its hiring. Population statistics have been considered relevant in Title VII cases because gross underrepresentation of minorities in the employer’s workforce may reflect discrimination unless some other factor, such as unavailability of qualified minorities, can be shown to exist. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 n.20, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977); Dothard v. Rawlin-son, 433 U.S. at 329-30, 97 S.Ct. at 2726-2727. Even under the majority’s view holding workforce percentages relevant in determining impact, it would be necessary, at a minimum, to consider whether, in the absence of the disputed policy, there might be an even higher percentage of black employees. It is more than likely that jobs at Greyhound and at other bus companies might have particular attraction to blacks who are still deprived of equal employment opportunities in certain other industries or who may still suffer from earlier educational deprivations in their quest for employment in certain other fields.
The majority’s hypothesis, that proportionate representation of minorities in the employer’s workforce negates a finding of discrimination, has been rejected in the one Supreme Court case to present a similar factual situation. In Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (per curiam), the Court considered an employer’s policy of rejecting applications from women who had preschool-age children. Although the representation of females in the employer’s relevant workforce (75-80% of the workforce) was higher than the percentage of female applicants (70-75% of applicants were female), the Court held plaintiff had established a prima facie case under Title VII. Significantly, for our purpose, the Court did not use those statistics to negate discrimination but merely found the percentage of women in the employer’s workforce to be relevant to show the absence of bias against women as such. Id. at 543, 91 S.Ct. at 497. Similarly, in this case, the EEOC does not contend that Greyhound adopted its “no beard” policy with the purpose or intent to discriminate against black employees. Although the percentage of black representation in the workforce may negate an intent to discriminate, it still cannot relieve an employer from the necessity of justifying adoption of a policy which falls more heavily on one race than on others.
The majority, I believe mistakenly, considers impact by focusing on statistics of the employer’s workforce. Title VII creates a right to an individual not to be subjected to practices that disqualify members of the protected groups at a disproportionate rate. It protects members of minorities knocking at the door to come in or to move up. For them, it is immaterial that others of their group are already there. Title VII’s valuable contribution to a more just society is its promise of equal opportunity of employment without regard to race, sex, religion, or national origin. It is that opportunity which Ferguson was denied by Greyhound’s “no beard” policy.
The majority’s rule would completely ignore the effect of the employer’s policy on the individual members of the minority group who will be adversely affected in their opportunity for employment or promotion. The language of the Supreme Court, acknowledged but disregarded by the majority, in Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), is directly on point: “It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant’s race are already proportionately represented in the work force.” *198Id. at 579, 98 S.Ct. at 2950 (emphasis of “each” in original, remainder of emphasis added). The majority’s attempt to distinguish Furnco on the ground it was a case of disparate treatment rather than disparate impact is makeshift; these are alternative methods of proving discrimination under Title VII. The employer’s basic obligation not to discriminate does not change because the discrimination is accomplished by a facially neutral policy instead of by intentional discriminatory treatment. We cannot allow so basic a public policy to be undermined by such a facile distinction.
The Fifth Circuit decisively rejected a similar attempt by an employer to contrive a new defense to Title VII based on its employment statistics. In Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974), plaintiff challenged the employer’s requirement of a diploma and of passing a standardized test which disqualified black applicants at more than three times the rate for white applicants. In rejecting the employer’s suggestion that workforce statistics showing that blacks were employed at a rate equivalent to the percentage of the general population constituted a defense, the court stated that such statistics were irrelevant since they did not negate the effect of a specific hiring practice that disqualified blacks at a disproportionately high rate:
[The employer’s] reliance on such data misinterprets the significance of Johnson’s proof. Such evidence does not disprove the essential finding that the tests have a detrimental impact on black applicants. It merely discloses that Goodyear has attempted by other practices to remove the taint of the tests’ consequences. The fact still remains that for those potential black hirees and black labor department transferors, these unvalidated testing devices have a substantial invidious effect.
Id. at 1372-73 (footnote omitted).
In light of the history of Title VII as interpreted by the Court (“the basic policy of [Title VII] requires that we focus on fairness to individuals rather than fairness to classes.” City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 709, 98 S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978)), I would hold the Fifth Circuit’s approach much more persuasive than that of the Tenth Circuit in EEOC v. Navajo Refining Co., 593 F.2d 988 (10th Cir. 1979), which the majority has chosen to follow.
III.
In Part III of its opinion, the majority has fashioned yet another rule that will further erode the discriminatory impact method of proving discrimination. Without citation of any authority, it now proclaims that, “To establish a prima facie case of employment discrimination under the disparate impact theory, the plaintiff must demonstrate a causal connection between the challenged policy or regulation and a racially unequal result. In other words, a policy does not have a disparate impact unless it is the cause of that impact.” At 193. The majority’s imposition of the requirement of showing causation may, at first reading, appear as appropriate in a Title VII case as in a negligence case. However, it must be stressed that such a requirement has not previously been imposed in Title VII cases because it would impose on Title VII plaintiffs the almost insurmountable burden of proving what would have happened in a hypothetical factual situation.
One may interpret the requirement of showing causation articulated by the majority as necessitating proof that the minority population within the employer’s workforce would have been higher but for the challenged employment policy. But a Title VII plaintiff, such as an unsuccessful applicant, has never previously been required to show that s/he would have been hired but for the discrimination. In fact, in disparate treatment cases, the now accepted mode of proof includes no such requirement, permitting a prima facie case to be established merely by plaintiff’s proof that s/he is a member of the protected group, was qualified for the job, was rejected, and that the position remained open. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). There is no justifica*199tion for any higher requirement of causation in disparate impact cases than in disparate treatment cases.
One of the difficulties which plaintiffs will face if the majority’s causation rule is accepted can be seen in considering how a plaintiff could successfully meet this new burden. Presumably, employers will claim, as they have in the past, that the minority representation in the workforce is low because there were no or an insufficient number of minority applicants who satisfied the employment policy. Although this may be a legitimate defense, the majority’s new causation requirement would convert the converse into part of plaintiff’s prima facie case. Now, the employer will argue, it is plaintiff who must show that there were actual minority applicants (and their number or proportion) who were disqualified. This burden must be met because, the argument will continue, without such evidence plaintiff has not established the required causal nexus between the challenged policy and the impact on the workforce. Yet this is precisely the evidence which the Supreme Court has held would not be required of a Title VII plaintiff.
In Dothard v. Rawlinson, 433 U.S. at 330, 97 S.Ct. at 2727, the Court held that generalized national statistics showing that the statutory weight and height requirements would exclude proportionately more women than men were sufficient to establish a prima facie case; it specifically rejected the employer’s contention that a statistical showing of disproportionate impact must be based on analysis of the characteristics of actual applicants. The Court refused to impose on Title VII plaintiffs the difficult evidentiary burden regarding actual applicants in part because the Court recognized that the actual applicant pool might not adequately reflect the full number of persons affected by the policy. Others, unnamed and unknown, may have been dissuaded from ever applying. Id. The Supreme Court’s decision in Dothard is difficult to reconcile with the majority’s causation rule since data regarding actual applicants, deemed unnecessary by the Supreme Court, would, under the majority’s rule, be needed to show the cause of the disparate result.
IV.
The majority’s application of its causation requirement in this case is illustrative of the nature of the high burden it places on Title VII plaintiffs. Here, the majority is unwilling to label as “clearly erroneous” the district court’s findings that PFB is a disorder which predominantly affects blacks, that it “overwhelmingly affects black men who shave” and that it is an immutable characteristic peculiar to members of the black race.1 It nonetheless finds that plaintiff has not established its prima facie case because plaintiff failed to negate the possibility that non-blacks, although rarely affected by PFB, may nonetheless be affected by some hypothetical, unknown, and unnamed skin disorder in the same high proportion as PFB affects blacks. Although a more pointless burden would be difficult to imagine,2 plaintiff’s experts did testify, without objection by defendant, about an article in the medical literature to the effect that blacks tend to be more prone to the difficulties associated with shaving from skin disorders than non-blacks.3
More significantly, no case has been called to our attention requiring a Title VII plaintiff to disprove the existence of a com*200parable impact on whites from some other cause which might equalize the adverse impact on the protected class. Indeed, the majority does not even remand the case to the district court to permit reopening of this non-jury trial so that plaintiff may attempt to produce evidence to meet the heretofore unknown burden which the majority imposes on it.4 Instead it directs entry of judgment in favor of the defendant.
Perhaps the effect of the majority’s new rule can be understood best by applying it in a hypothetical situation. If an employer were to disqualify all applicants with sickle-cell trait, I assume we would agree that evidence that approximately 10% of all blacks but almost no whites have that trait suffices to establish plaintiff’s prima facie case under the disparate impact theory. If, however, the employer frames its policy to exclude all applicants with a potential blood disorder, and plaintiff produces the same evidence, the majority’s rule would compel a holding that plaintiff has not established a prima facie case unless it also produces evidence negating the possibility that whites have other potential blood disorders that cumulatively affect 10% of the white population.
In my view, the evidence introduced by plaintiff in this case was sufficient to support the finding that plaintiff established a prima facie case under Title VII because the evidence showed (1) that Ferguson has a condition which disproportionately affects a protected class of which he is a member; and (2) that this condition precludes him from meeting the employer’s facially neutral employment policy. He need not make the additional showing that there is no condition affecting whites which poses a similar obstacle to employment under the challenged policy. Of course, Greyhound had the opportunity to show that its policy does not in fact disproportionately affect blacks by demonstrating that other conditions preclude a like percentage of whites from meeting the employment requirement, but it did not do so. In other words, plaintiff’s statistics showing that PFB predominantly affects blacks were sufficient to permit the district court to draw the inference that the “no beard” policy predominantly affects blacks. Greyhound was,free to challenge this inference by showing that the “no beard” policy has an equal effect on whites. In Dothard, the Court made a similar observation:
The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement’s grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own.
433 U.S. at 331, 97 S.Ct. at 2727.
Because I am concerned that the majority’s opinion imposes unwarranted obstacles to the effective use of the discriminatory impact method of proving a Title VII case, I dissent.
. Dr. Alexander, a dermatologist conceded by defendant to be an expert on PFB, testified that PFB is overwhelmingly a problem of blacks. In the course of his practice he encountered only one white person with PFB.
. The higher number of advertisements directed at the black community relating to ways to alleviate skin disorders caused by shaving and to shaving devices which may tend to minimize skin disorders suggests the significance of the problem to blacks. One can assume that comparable advertisements would be directed to the white community if there were comparable problems.
. The article to which Dr. Alexander referred was “Shaving/A Cause of Skin Disorders” written by Dr. Gibson E. Craig which appeared in “Clinical Symposia”. The district court refused to permit this article, as well as other articles referred to by Dr. Alexander, to be introduced in evidence as exhibits, holding that Fed.R.Evid. 803(18) only permitted the expert witness to read the relevant portions of the articles into the record.
. It would not impose a great burden on Greyhound to permit beards to be worn by those employees who can show medical justification. The EEOC produced evidence showing that both the District of Columbia Police Department and the United States Army permit beards to be worn on appropriate medical documentation.