*645Justice White

delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., makes it an unfair employment practice for an employer to discriminate against any individual with respect to hiring or the terms and condition of employment because of such individual’s race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees in ways that would adversely affect any employee because of the employee’s race, color, religion, sex, or national origin.1 §2000e-2(a). Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971), construed Title VII to proscribe “not only overt discrimination but also practices that are fair in form but discriminatory in practice.” Under this basis for liability, which is known as the “disparate-impact” theory and which is involved in this case, a facially neutral *646employment practice may be deemed violative of Title VII without evidence of the employer’s subjective intent to discriminate that is required in a “disparate-treatment” case.

I

The claims before us are disparate-impact claims, involving the employment practices of petitioners, two companies that operate salmon canneries in remote and widely separated areas of Alaska. The canneries operate only during the salmon runs in the summer months. They are inoperative and vacant for the rest of the year. In May or June of each year, a few weeks before the salmon runs begin, workers arrive and prepare the equipment and facilities for the canning operation. Most of these workers possess a variety of skills. When salmon runs are about to begin, the workers who will operate the cannery lines arrive, remain as long as there are fish to can, and then depart. The canneries are then closed down, winterized, and left vacant until the next spring. During the off-season, the companies employ only a small number of individuals at their headquarters in Seattle and Astoria, Oregon, plus some employees at the winter shipyard in Seattle.

The length and size of salmon runs vary from year to year, and hence the number of employees needed at each cannery also varies. Estimates are made as early in the winter as possible; the necessary employees are hired, and when the time comes, they are transported to the canneries. Salmon must be processed soon after they are caught, and the work during the canning season is therefore intense.2 For this *647reason, and because the canneries are located in remote regions, all workers are housed at the canneries and have their meals in company-owned mess halls.

Jobs at the canneries are of two general types: “cannery jobs” on the cannery line, which are unskilled positions; and “noncannery jobs,” which fall into a variety of classifications. Most noncannery jobs are classified as skilled positions.3 Cannery jobs are filled predominantly by nonwhites: Filipinos and Alaska Natives. The Filipinos are hired through, and dispatched by, Local 37 of the International Longshoremen’s and Warehousemen’s Union pursuant to a hiring hall agreement with the local. The Alaska Natives primarily reside in villages near the remote cannery locations. Non-cannery jobs are filled with predominantly white workers, who are hired during the winter months from the companies’ offices in Washington and Oregon. Virtually all of the non-cannery jobs pay more than cannery positions. The predominantly white noncannery workers and the predominantly nonwhite cannery employees live in separate dormitories and eat in separate mess halls.

In 1974, respondents, a class of nonwhite cannery workers who were (or had been) employed at the canneries, brought this Title VII action against petitioners. Respondents alleged that a variety of petitioners’ hiring/promotion practices— e. g., nepotism, a rehire preference, a lack of objective hiring criteria, separate hiring channels, a practice of not promoting from within — were responsible for the racial strati*648fication of the work force and had denied them and other nonwhites employment as noncannery workers on the basis of race. Respondents also complained of petitioners’ racially segregated housing and dining facilities. All of respondents’ claims were advanced under both the disparate-treatment and disparate-impact theories of Title VII liability.

The District Court held a bench trial, after which it entered 172 findings of fact. 34 EPD ¶34,437, pp. 33,822-33,836 (WD Wash. 1983). It then rejected all of respondents’ disparate-treatment claims. It also rejected the disparate-impact challenges involving the subjective employment criteria used by petitioners to fill these noncannery positions, on the ground that those criteria were not subject to attack under a disparate-impact theory. Id., p.33,840. Petitioners’ “objective” employment practices (e. g., an English language requirement, alleged nepotism in hiring, failure to post noncannery openings, the rehire preference, etc.) were found to be subject to challenge under the disparate-impact theory, but these claims were rejected for failure of proof. Judgment was entered for petitioners.

On appeal, a panel of the Ninth Circuit affirmed, 768 F. 2d 1120 (1985), but that decision was vacated when the Court of Appeals agreed to hear the case en banc, 787 F. 2d 462 (1985). The en banc hearing was ordered to settle an intracircuit conflict over the question whether subjective hiring practices could be analyzed under a disparate-impact model; the Court of Appeals held — as this Court subsequently ruled in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988)— that disparate-impact analysis could be applied to subjective hiring practices. 810 F. 2d 1477, 1482 (1987). The Ninth Circuit also concluded that in such a case, “[o]nce the plaintiff class has shown disparate impact caused by specific, identifiable employment practices or criteria, the burden shifts to the employer,” id., at 1485, to “prov[e the] business necessity” of the challenged practice, id., at 1486. Because the en banc holding on subjective employment practices reversed *649the District Court’s contrary ruling, the en banc Court of Appeals remanded the case to a panel for further proceedings.

On remand, the panel applied the en banc ruling to the facts of this case. 827 F. 2d 439 (1987). It held that respondents had made out a prima facie case of disparate impact in hiring for both skilled and unskilled noncannery positions. The panel remanded the case for further proceedings, instructing the District Court that it was the employer’s burden to prove that any disparate impact caused by its hiring and employment practices was justified by business necessity. Neither the en banc court nor the panel disturbed the District Court’s rejection of the disparate-treatment claims.4

Petitioners sought review of the Court of Appeals’ decision in this Court, challenging it on several grounds. Because some of the issues raised by the decision below were matters *650on which this Court was evenly divided in Watson v. Fort Worth Bank & Trust, supra, we granted certiorari, 487 U. S. 1264 (1988), for the purpose of addressing these disputed questions of the proper application of Title VII’s disparate-impact theory of liability.

II

In holding that respondents had made out a prima facie case of disparate impact, the Court of Appeals relied solely on respondents’ statistics showing a high percentage of nonwhite workers in the cannery jobs and a low percentage of such workers in the noncannery positions.5 Although statistical proof can alone make out a prima facie case, see Teamsters v. United States, 431 U. S. 324, 339 (1977); Hazelwood School Dist. v. United States, 433 U. S. 299, 307-308 (1977), the Court of Appeals’ ruling here misapprehends our precedents and the purposes of Title VII, and we therefore reverse.

“There can be no doubt,” as there was when a similar mistaken analysis had been undertaken by the courts below in Hazelwood, supra, at 308, “that the . . . comparison . . . fundamentally misconceived the role of statistics in employment discrimination cases.” The “proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market.” Ibid. It is such a comparison — between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs — that generally forms *651the proper basis for the initial inquiry in a disparate-impact case. Alternatively, in cases where such labor market statistics will be difficult if not impossible to ascertain, we have recognized that certain other statistics — such as measures indicating the racial composition of “otherwise-qualified applicants” for at-issue jobs — are equally probative for this purpose. See, e. g., New York City Transit Authority v. Beazer, 440 U. S. 568, 585 (1979).6

It is clear to us that the Court of Appeals’ acceptance of the comparison between the racial composition of the cannery work force and that of the noncannery work force, as probative of a prima facie case of disparate impact in the selection of the latter group of workers, was flawed for several reasons. Most obviously, with respect to the skilled non-cannery jobs at issue here, the cannery work force in no way reflected “the pool of qualified job applicants” or the “qualified population in the labor force.” Measuring alleged discrimination in the selection of accountants, managers, boat captains, electricians, doctors, and engineers — and the long list of other “skilled” noncannery positions found to exist by the District Court, see 34 EPD ¶ 34,437, p. 33,832 — by comparing the number of nonwhites occupying these jobs to the number of nonwhites filling cannery worker positions is nonsensical. If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners’ fault),7 petition*652ers’ selection methods or employment practices cannot be said to have had a “disparate impact” on nonwhites.

One example illustrates why this must be so. Respondents’ own statistics concerning the noncannery work force at one of the canneries at issue here indicate that approximately 17% of the new hires for medical jobs, and 15% of the new hires for officer worker positions, were nonwhite. See App. to Brief for Respondents B-l. If it were the case that less than 15 to 17% of the applicants for these jobs were nonwhite and that nonwhites made up a lower percentage of the relevant qualified labor market, it is hard to see how respondents, without more, cf. Connecticut v. Teal, 457 U. S. 440 (1982), would have made out a prima facie case of disparate impact. Yet, under the Court of Appeals’ theory, simply because nonwhites comprise 52% of the cannery workers at the cannery in question, see App. to Brief for Respondents B-l, respondents would be successful in establishing a prima facie case of racial discrimination under Title VII.

Such a result cannot be squared with our cases or with the goals behind the statute. The Court of Appeals’ theory, at the very least, would mean that any employer who had a segment of his work force that was — for some reason — racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the “business necessity” of the methods used to select the other members of his work force. The only practicable option for many employers would be to adopt racial quotas, insuring that no portion of their work forces deviated in racial composition from the other portions thereof; this is a result that Congress expressly rejected in drafting Title VII. See 42 U. S. C. §2000e-2(j); see also Watson v. Fort Worth Bank & Trust, 487 U. S. at 922-994, and n. 2 (opinion of O’Connor, J.). The Court of Appeals’ theory would “leave the employer little choice . . . but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.” Albemarle Paper Co. v. Moody, *653422 U. S. 405, 449 (1975) (Blackmun, J., concurring in judgment).

The Court of Appeals also erred with respect to the unskilled noncannery positions. Racial imbalance in one segment of an employer’s work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer’s other positions, even where workers for the different positions may have somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). As long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery positions, see n. 6, supra, if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, the employer’s selection mechanism probably does not operate with a disparate impact on minorities.8 Where this is the case, the percentage of nonwhite workers found in other positions in the employer’s labor force is irrelevant to the question of a prima facie statistical case of disparate impact. As noted above, a contrary ruling on this point would almost inexorably lead to the use of numerical quotas in the workplace, a result that Congress and this Court have rejected repeatedly in the past.

Moreover, isolating the cannery workers as the potential “labor force” for unskilled noncannery positions is at once both too broad and too narrow in its focus. It is too broad because the vast majority of these cannery workers did not *654seek jobs in unskilled noneannery positions; there is no showing that many of them would have done so even if none of the arguably “deterring” practices existed. Thus, the pool of cannery workers cannot be used as a surrogate for the class of qualified job applicants because it contains many persons who have not (and would not) be noncannery job applicants. Conversely, if respondents propose to use the cannery workers for comparison purposes because they represent the “qualified labor population” generally, the group is too narrow because there are obviously many qualified persons in the labor market for noncannery jobs who are not cannery workers.

The peculiar facts of this case further illustrate why a comparison between the percentage of nonwhite cannery workers and nonwhite noncannery workers is an improper basis for making out a claim of disparate impact. Here, the District Court found that nonwhites were “overrepresent[ed]” among cannery workers because petitioners had contracted with a predominantly nonwhite union (local 37) to fill these positions. See 34 EPD ¶33,437, p. 33,829. As a result, if petitioners (for some permissible reason) ceased using local 37 as its hiring channel for cannery positions, it appears (according to the District Court’s findings) that the racial stratification between the cannery and noncannery workers might diminish to statistical insignificance. Under the Court of Appeals’ approach, therefore, it is possible that with no change whatsoever in their hiring practices for noncannery workers — the jobs at issue in this lawsuit — petitioners could make respondents’ prima facie case of disparate impact “disappear. ” But ¿/‘there would be no prima facie case of disparate impact in the selection of noncannery workers absent petitioners’ use of local 37 to hire cannery workers, surely petitioners’ reliance on the union to fill the cannery jobs not at issue here (and its resulting “overrepresentation” of nonwhites in those positions) does not — standing alone — make out a prima facie case of disparate impact. Yet it is precisely *655such an ironic result that the Court of Appeals reached below.

Consequently, we reverse the Court of Appeals’ ruling that a comparison between the percentage of cannery workers who are nonwhite and the percentage of noncannery workers who are nonwhite makes out a prima facie case of disparate impact. Of course, this leaves unresolved whether the record made in the District Court will support a conclusion that a prima facie case of disparate impact has been established on some basis other than the racial disparity between cannery and noncannery workers. This is an issue that the Court of Appeals or the District Court should address in the first instance.

Ill

Since the statistical disparity relied on by the Court of Appeals did not suffice to make out a prima facie case, any inquiry by us into whether the specific challenged employment practices of petitioners caused that disparity is pretermitted, as is any inquiry into whether the disparate impact that any employment practice may have had was justified by business considerations.9 Because we remand for further proceedings, however, on whether a prima facie case of disparate impact has been made in defensible fashion in this case, we address two other challenges petitioners have made to the decision of the Court of Appeals.

*656A

First is the question of causation in a disparate-impact case. The law in this respect was correctly stated by Justice O’Connor’s opinion last Term in Watson v. Fort Worth Bank & Trust, 487 U. S., at 994:

“[W]e note that the plaintiff’s burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer’s work force. The plaintiff must begin by identifying the specific employment practice that is challenged. . . . Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”

Cf. also id., at 1000 (Blackmun, J., concurring in part and concurring in judgment).

Indeed, even the Court of Appeals — whose decision petitioners assault on this score — noted that “it is . . . essential that the practices identified by the cannery workers be linked causally with the demonstrated adverse impact.” 827 F. 2d, at 445. Notwithstanding the Court, of Appeals’ apparent adherence to the proper inquiry, petitioners contend that that court erred by permitting respondents to make out their case by offering “only [one] set of cumulative comparative statistics as evidence of the disparate impact of each and all of [petitioners’ hiring] practices.” Brief for Petitioners 31.

Our disparate-impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities. Just as an employer cannot escape liability under Title VII by demonstrating that, “at the bottom line,” his work force is racially balanced (where particular hiring practices may operate to deprive minorities of employment opportunities), see Connecticut v. Teal, 457 U. S., at *657450, a Title VII plaintiff does not make out a case of disparate impact simply by showing that, “at the bottom line,” there is racial imbalance in the work force. As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff’s prima facie case in a disparate-impact suit under Title VII.

Here, respondents have alleged that several “objective” employment practices (e. g., nepotism, separate hiring channels, rehire preferences), as well as the use of “subjective decision making” to select noncannery workers, have had a disparate impact on nonwhites. Respondents base this claim on statistics that allegedly show a disproportionately low percentage of nonwhites in the at-issue positions. However, even if on remand respondents can show that nonwhites are underrepresented in the at-issue jobs in a manner that is acceptable under the standards set forth in Part II, supra, this alone will not suffice to make out a prima facie case of disparate impact. Respondents will also have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites. To hold otherwise would result in employers being potentially liable for “the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces.” Watson v. Fort Worth Bank & Trust, supra, at 992.

Some will complain that this specific causation requirement is unduly burdensome on Title VII plaintiffs. But liberal civil discovery rules give plaintiffs broad access to employers’ records in an effort to document their claims. Also, employers falling within the scope of the Uniform Guidelines on Employee Selection Procedures, 29 CFR §1607.1 et seq. (1988), *658are required to “maintain . . . records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group[s].” See § 1607.4(A). This includes records concerning “the individual components of the selection process” where there is a significant disparity in the selection rates of whites and nonwhites. See § 1607.4(C). Plaintiffs as a general matter will have the benefit of these tools to meet their burden of showing a causal link between challenged employment practices and racial imbalances in the work force; respondents presumably took full advantage of these opportunities to build their case before the trial in the District Court was held.10

Consequently, on remand, the courts below are instructed to require, as part of respondents’ prima facie case, a demonstration that specific elements of the petitioners’ hiring process have a significantly disparate impact on non whites.

B

If, on remand, respondents meet the proof burdens outlined above, and establish a prima facie case of disparate impact with respect to any of petitioners’ employment practices, the case will shift to any business justification petitioners offer for their use of these practices. This phase of the disparate-impact case contains two components: first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact. See, e. g., Albemarle Paper Co. v. Moody, 422 U. S., at 425. We consider these two components in turn.

*659(1)

Though we have phrased the query differently in different cases, it is generally well established that at the justification stage of such a disparate-impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. See, e. g., Watson v. Fort Worth Bank & Trust, 487 U. S., at 997-999; New York City Transit Authority v. Beazer, 440 U. S., at 587, n. 31; Griggs v. Duke Power Co., 401 U. S., at 432. The touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be “essential” or “indispensable” to the employer’s business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above. See supra, at 652-653.

In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff. To the extent that the Ninth Circuit held otherwise in its en banc decision in this case, see 810 F. 2d, at 1485-1486, or in the panel’s decision on remand, see 827 F. 2d, at 445, 447 — suggesting that the persuasion burden should shift to petitioners once respondents established a prima facie case of disparate impact — its decisions were erroneous. “[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.'” Watson, supra, at 997 (O’Con-nor, J.) (emphasis added). This rule conforms with the usual method for allocating persuasion and production bur*660dens in the federal courts, see Fed. Rule Evid. 301, and more specifically, it conforms to the rule in disparate-treatment cases that the plaintiff bears the burden of disproving an employer’s assertion that the adverse employment action or practice was based solely on a legitimate neutral consideration. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 256-258 (1981). We acknowledge that some of our earlier decisions can be read as suggesting otherwise. See Watson, supra, at 1006-1008 (Blackmun, J., concurring in part and concurring in judgment). But to the extent that those cases speak of an employer’s “burden of proof” with respect to a legitimate business justification defense, see, e. g., Dothard v. Rawlinson, 433 U. S. 321, 329 (1977), they should have been understood to mean an employer’s production— but not persuasion — burden. Cf., e. g., NLRB v. Transportation Management Corp., 462 U. S. 393, 404, n. 7 (1983). The persuasion burden here must remain with the plaintiff, for it is he who must prove that it was “because of such individual’s race, color,” etc., that he was denied a desired employment opportunity. See 42 U. S. C. §2000e-2(a).

(2)

Finally, if on remand the case reaches this point, and respondents cannot persuade the trier of fact on the question of petitioners’ business necessity defense, respondents may still be able to prevail. To do so, respondents will have to persuade the factfinder that “other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate [hiring] interest[s]”; by so demonstrating, respondents would prove that “[petitioners were] using [their] tests merely as a ‘pretext’ for discrimination.” Albemarle Paper Co., supra, at 425; see also Watson, 487 U. S., at 998 (O’Connor, J.); id., at 1005-1006 (Blackmun, J., concurring in part and concurring in judgment). If respondents, having established a prima facie case, come forward with alternatives to petitioners’ hiring practices that *661reduce the racially disparate impact of practices currently being used, and petitioners refuse to adopt these alternatives, such a refusal would belie a claim by petitioners that their incumbent practices are being employed for nondiscriminatory reasons.

Of course, any alternative practices which respondents offer up in this respect must be equally effective as petitioners’ chosen hiring procedures in achieving petitioners’ legitimate employment goals. Moreover, “[fjactors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer’s legitimate business goals.” Watson, supra, at 998 (O’Connor, J.). “Courts are generally less competent than employers to restructure business practices,” Furnco Construction Corp. v. Waters, 438 U. S. 567, 578 (1978); consequently, the judiciary should proceed with care before mandating that an employer must adopt a plaintiff’s alternative selection or hiring practice in response to a Title VII suit.

IV

For the reasons given above, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join,

dissenting.

I fully concur in Justice Stevens’ analysis of this case. Today a bare majority of the Court takes three major strides backwards in the battle against race discrimination. It reaches out to make last Term’s plurality opinion in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988), the law, thereby upsetting the longstanding distribution of burdens of proof in Title VII disparate-impact cases. It bars the use of internal work force comparisons in the making of a prima *662facie case of discrimination, even where the structure of the industry in question renders any other statistical comparison meaningless. And it requires practice-by-practice statistical proof of causation, even where, as here, such proof would be impossible.

The harshness of these results is well demonstrated by the facts of this case. The salmon industry as described by this record takes us back to a kind of overt and. institutionalized discrimination we have not dealt with in years: a total residential and work environment organized on principles of racial stratification and segregation, which, as Justice Stevens points out, resembles a plantation economy. Post, at 664, n. 4. This industry long has been characterized by a taste for discrimination of the old-fashioned sort: a preference for hiring nonwhites to fill its lowest level positions, on the condition that they stay there. The majority’s legal rulings essentially immunize these practices from attack under a Title VII disparate-impact analysis.

Sadly, this comes as no surprise. One wonders whether the majority still believes that race discrimination — or, more accurately, race discrimination against nonwhites — is a problem in our society, or even remembers that it ever was. Cf. Richmond v. J. A. Croson Co., 488 U. S. 469 (1989).

Justice Stevens,

with whom Justice Brennan, Justice Marshall, and Justice Blackmun join,

dissenting.

Fully 18 years ago, this Court unanimously held that Title VII of the Civil Rights Act of 19641 prohibits employment practices that have discriminatory effects as well as those that are intended to discriminate. Griggs v. Duke Power Co., 401 U. S. 424 (1971). Federal courts and agencies consistently have enforced that interpretation, thus promoting our national goal of eliminating barriers that define economic opportunity not by aptitude and ability but by race, color, na*663tional origin, and other traits that are easily identified but utterly irrelevant to one’s qualification for a particular job.2 Regrettably, the Court retreats from these efforts in its review of an interlocutory judgment respecting the “peculiar facts” of this lawsuit.3 Turning a blind eye to the meaning and purpose of Title VII, the majority’s opinion perfunctorily rejects a longstanding rule of law and underestimates the probative value of evidence of a racially stratified work force.4 I cannot join this latest sojourn into judicial activism.

*664I

I would have thought it superfluous to recount at this late date the development of our Title VII jurisprudence, but the majority’s facile treatment of settled law necessitates such a primer. This Court initially considered the meaning of Title VII in Griggs v. Duke Power Co., 401 U. S. 424 (1971), in which a class of utility company employees challenged the conditioning of entry into higher paying jobs upon a high school education or passage of two written tests. Despite evidence that “these two requirements operated to render ineligible a markedly disproportionate number of Negroes,””5 the Court of Appeals had held that be*665cause there was no showing of an intent to discriminate on account of race, there was no Title VII violation. Id., at 429. Chief Justice Burger’s landmark opinion established that an employer may violate the statute even when acting in complete good faith without any invidious intent.6 Focusing on § 703(a)(2),7 he explained:

“The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” 401 U. S., at 429-430.

The opinion in Griggs made it clear that a neutral practice that operates to exclude minorities is nevertheless lawful if it serves a valid business purpose. “The touchstone is business necessity,” the Court stressed. Id., at 431. Because “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation!,] . . . Congress has placed on the employer the burden of showing *666that any given requirement must have a manifest relationship to the employment in question.”'8 Id., at 432 (emphasis in original). Congress has declined to act — as the Court now sees fit — to limit the reach of this “disparate-impact” theory, see Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977); indeed it has extended its application.9 This approval lends added force to the Griggs holding.

The Griggs framework, with its focus on ostensibly neutral qualification standards, proved inapposite for analyzing an individual employee’s claim, brought under § 703(a)(1),10 that an employer intentionally discriminated on account of race.11 *667The means for determining intent absent direct evidence was outlined in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), two opinions written by Justice Powell for unanimous Courts. In such a “disparate-treatment” case, see Teamsters, 431 U. S., at 335, n. 15, the plaintiff’s initial burden, which is “not onerous,” 450 U. S., at 253, is to establish “a prima facie case of racial discrimination,” 411 U. S., at 802; that is, to create a presumption of unlawful discrimination by “eliminat[ing] the most common nondiscriminatory reasons for the plaintiff’s rejection.”12 450 U. S., at 254. “The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” 411 U. S., at 802; see 450 U. S., at 254. Fi*668nally, because “Title VII does not. . . permit [the employer] to use [the employee’s] conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1),” the employee “must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.” 411 U. S., at 804-805; see 450 U. S., at 256. While the burdens of producing evidence thus shift, the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”13 450 U. S.-, at 253.

Decisions of this Court and other federal courts repeatedly have recognized that while the employer’s burden in a disparate-treatment case is simply one of coming forward with evidence of legitimate business purpose, its burden in a disparate-impact case is proof of an affirmative defense of business necessity.14 Although the majority’s opinion blurs *669that distinction, thoughtful reflection on common-law pleading principles clarifies the fundamental differences between the two types of “burdens of proof.”15 In the ordinary civil trial, the plaintiff bears the burden of persuading the trier of fact that the defendant has harmed her. See, e. g., 2 Restatement (Second) of Torts §§328 A, 433 B (1965) (hereinafter Restatement). The defendant may undercut plaintiff’s efforts both by confronting plaintiff’s evidence during her case in chief and by submitting countervailing evidence during its own case.16 But if the plaintiff proves the existence of the harmful act, the defendant can escape liability only by persuading the factfinder that the act was justified or excusable. See, e. g., Restatement §§454-461, 463-467. The plaintiff in turn may try to refute this affirmative defense. Although the burdens of producing evidence regarding the existence of harm or excuse thus shift between the plaintiff *670and the defendant, the burden of proving either proposition remains throughout on the party asserting it.

In a disparate-treatment case there is no “discrimination” within the meaning of Title VII unless the employer intentionally treated the employee unfairly because of race. Therefore, the employee retains the burden of proving the existence of intent at all times. If there is direct evidence of intent, the employee may have little difficulty persuading the factfinder that discrimination has occurred. But in the likelier event that intent has to be established by inference, the employee may resort to the McDonnell!Burdine inquiry. In either instance, the employer may undermine the employee’s evidence but has no independent burden of persuasion.

In contrast, intent plays no role in the disparate-impact inquiry. The question, rather, is whether an employment practice has a significant, adverse effect on an identifiable class of workers — regardless of the cause or motive for the practice. The employer may attempt to contradict the factual basis for this effect; that is, to prevent the employee from establishing a prima facie case. But when an employer is faced with sufficient proof of disparate impact, its only recourse is to justify the practice by explaining why it is necessary to the operation of business. Such a justification is a classic example of an affirmative defense.17

*671Failing to explore the interplay between these distinct orders of proof, the Court announces that our frequent statements that the employer shoulders the burden of proof respecting business necessity “should have been understood to mean an employer’s production — but not persuasion — burden.”18 Ante, at 660. Our opinions always have emphasized that in a disparate-impact case the employer’s burden is weighty. “The touchstone,” the Court said in Griggs, “is business necessity.” 401 U. S., at 431. Later, we held that prison administrators had failed to “rebu[t] the prima facie case of discrimination by showing that the height and weight requirements are . . . essential to effective job performance,” Dothard v. Rawlinson, 433 U. S. 321, 331 (1977). Cf. n. 14, supra. I am thus astonished to read that the “touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. . . . [TJhere is no requirement that the challenged practice be . . . ‘essential,’” ante, at 659. This casual — almost summary — rejec*672tion of the statutory construction that developed in the wake of Griggs is most disturbing. I have always believed that the Griggs opinion correctly reflected the intent of the Congress that enacted Title VII. Even if I were not so persuaded, I could not join a rejection of a consistent interpretation of a federal statute. Congress frequently revisits this statutory scheme and can readily correct our mistakes if we misread its meaning. Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 644 (1987) (Stevens, J., concurring); Runyon v. McCrary, 427 U. S. 160, 190-192 (1976) (Stevens, J., concurring). See McNally v. United States, 483 U. S. 350, 376 (1987) (Stevens, J., dissenting); Commissioner v. Fink, 483 U. S. 89, 102-105 (1987) (Stevens, J., dissenting); see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 486 (1989) (Stevens, J., dissenting).

Also troubling is the Court’s apparent redefinition of the employees’ burden of proof in a disparate-impact case. No prima facie case will be made, it declares, unless the employees “‘isolat[e] and identify] the specific employment practices that are allegedly responsible for any observed statistical disparities.’” Ante, at 656 (quoting Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 994 (1988) (plurality opinion)). This additional proof requirement is unwarranted.19 It is elementary that a plaintiff cannot recover upon proof of injury alone; rather, the plaintiff must connect the injury to an act of the defendant in order to establish prima facie that the defendant is liable. E. g., Restatement § 430. Although the causal link must have substance, the act *673need not constitute the sole or primary cause of the harm. §§431-433; cf. Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). Thus in a disparate-impact case, proof of numerous questionable employment practices ought to fortify an employee’s assertion that the practices caused racial disparities.20 Ordinary principles of fairness require that Title VII actions be tried like “any lawsuit.” Cf. U. S. Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 714, n. 3 (1983). The changes the majority makes today, tipping the scales in favor of employers, are not faithful to those principles.

II

Petitioners seek reversal of the Court of Appeals and dismissal of this suit on the ground that respondents’ statistical evidence failed to prove a prima facie case of discrimination. Brief for Petitioners 48. The District Court concluded “there were ‘significant disparities’ ” between the racial composition of the cannery workers and the noncannery workers, but it “made no precise numerical findings” on this and other critical points. See ante, at 650, n. 5. Given this dearth of findings and the Court’s newly articulated preference for individualized proof of causation, it would be manifestly unfair to consider respondents’ evidence in the aggregate and deem it insufficient. Thus the Court properly rejects petitioners’ request for a final judgment and remands for further determination of the strength of respondents’ prima facie case. See ante, at 655. Even at this juncture, however, I believe that respondents’ evidence deserves greater credit than the majority allows.

*674Statistical evidence of discrimination should compare the racial composition of employees in disputed jobs to that ‘“of the qualified . . . population in the relevant labor market.’” Ante, at 650 (quoting Hazelwood School Dist. v. United States, 433 U. S. 299, 308 (1977)). That statement leaves open the definition of the qualified population and the relevant labor market. Our previous opinions, e. g., New York City Transit Authority v. Beazer, 440 U. S. 568, 584-586 (1979); Dothard v. Rawlinson, 433 U. S., at 329-330; Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975); Griggs, 401 U. S., at 426, 430, n. 6, demonstrate that in reviewing statistical evidence, a court should not strive for numerical exactitude at the expense of the needs of the particular case.

The District Court’s findings of fact depict a unique industry. Canneries often are located in remote, sparsely populated areas of Alaska. 34 EPD ¶ 34,437, p. 38,825 (WD Wash. 1983). Most jobs are seasonal, with the season’s length and the canneries’ personnel needs varying not just year to year but day to day. Ibid. To fill their employment requirements, petitioners must recruit and transport many cannery workers and noncannery workers from States in the Pacific Northwest. Id., at 33,828. Most cannery workers come from a union local based outside Alaska or from Native villages near the canneries. Ibid. Employees in the non-cannery positions — the positions that are “at issue” — learn of openings by word of mouth; the jobs seldom are posted or advertised, and there is no promotion to noncannery jobs from within the cannery workers’ ranks. Id., at 33,827-33,828.

In general, the District Court found the at-issue jobs to require “skills,” ranging from English literacy, typing, and “ability to use seam micrometers, gauges, and mechanic’s hand tools” to “good health” and a driver’s license.21 Id., at *67533,833-33,834. All cannery workers’ jobs, like a handful of at-issue positions, are unskilled, and the court found that the intensity of the work during canning season precludes on-the-job training for skilled noncannery positions. Id., at 33,825. It made no findings regarding the extent to which the cannery workers already are qualified for at-issue jobs: individual plaintiffs testified persuasively that they were fully qualified for such jobs,22 but the court neither credited nor discredited this testimony. Although there are no findings concerning wage differentials, the parties seem to agree that wages for cannery workers are lower than those for non-cannery workers, skilled or unskilled. The District Court found that “nearly all” cannery workers are non white, while the percentage of nonwhites employed in the entire Alaska salmon canning industry “has stabilized at about 47% to 50%.” Id., at 33,829. The precise stratification of the work force is not described in the findings, but the parties seem to agree that the noncannery jobs are predominantly held by whites.

Petitioners contend that the relevant labor market in this case is the general population of the “ ‘external’ labor market for the jobs at issue.” Brief for Petitioners 17. While they would rely on the District Court’s findings in this regard, those findings are ambiguous. At one point the District Court specifies “Alaska, the Pacific Northwest, and California” as “the geographical region from which [petitioners] draw their employees,” but its next finding refers to “this relevant geographical area for cannery worker, laborer, and other nonskilled jobs,” 34 EPD ¶ 34,437, p. 33,828. There *676is no express finding of the relevant labor market for non-cannery jobs.

Even assuming that the District Court properly defined the relevant geographical area, its apparent assumption that the population in that area constituted the “available labor supply,” ibid., is not adequately founded. An undisputed requirement for employment either as a cannery or noncannery worker is availability for seasonal employment in the far reaches of Alaska. Many noncannery workers, furthermore, must be available for preseason work. Id., at 33,829, 33,833-33,834. Yet the record does not identify the portion of the general population in Alaska, California, and the Pacific Northwest that would accept this type of employment.23 This deficiency respecting a crucial job qualification diminishes the usefulness of petitioners’ statistical evidence. In contrast, respondents’ evidence, comparing racial compositions within the work force, identifies a pool of workers willing to work during the relevant times and familiar with the workings of the industry. Surely this is more probative than the untailored general population statistics on which petitioners focus. Cf. Hazelwood, 433 U. S., at 308, n. 13; Teamsters, 431 U. S., at 339-340, n. 20.

*677Evidence that virtually all the employees in the major categories of at-issue jobs were white,24 whereas about two-thirds of the cannery workers were nonwhite,25 may not by itself suffice to establish a prima facie case of discrimination.26 But such evidence of racial stratification puts the specific employment practices challenged by respondents into perspective. Petitioners recruit employees for at-issue jobs from outside the work force rather than from lower paying, overwhelmingly nonwhite, cannery worker positions. 34 EPD ¶34,437, p. 33,828-33,829. Information about availability of at-issue positions is conducted by word of mouth;27 therefore, *678the maintenance of housing and mess halls that separate the largely white noncannery work force from the cannery workers, id., at 33,836, 33,843-33,844, coupled with the tendency toward nepotistic hiring,28 are obvious barriers to employment opportunities for nonwhites. Putting to one side the issue of business justifications, it would be quite wrong to conclude that these practices have no discriminatory consequence.29 Thus I agree with the Court of-Appeals, 827 F. 2d 439, 444-445 (CA9 1987), that when the District Court makes the additional findings prescribed today, it should treat the evidence of racial stratification in the work force as a significant element of respondents’ prima facie case.

Ill

The majority’s opinion begins with recognition of the settled rule that that “a facially neutral employment practice may be deemed violative of Title VII without evidence of the employer’s subjective intent to discriminate that is required in a‘disparate-treatment’case.” Ante, at 645-646. It then departs from the body of law engendered by this disparate-*679impact theory, reformulating the order of proof and the weight of the parties’ burdens. Why the Court undertakes these unwise changes in elementary and eminently fair rules is a mystery to me.

I respectfully dissent.

*1483O’SCANNLAIN, Circuit Judge:

We are called upon to decide whether an employer violates Title VII of the Civil Rights Act of 1964 in requiring its bilingual workers to speak only English while working on the job.

I

Spun Steak Company (“Spun Steak”) is a California corporation that produces poultry and meat products in South San Francisco for wholesale distribution. Spun Steak employs thirty-three .workers, twenty-four of whom are Spanish-speaking. Virtually all of the Spanish-speaking employees are Hispanic. While two employees speak no English, the others have varying degrees of proficiency in English. Spun Steak has never required job applicants to speak or to understand English as a condition of employment.

Approximately two-thirds of Spun Steak’s employees are production line workers or otherwise involved in the production process. Appellees Garcia and Buitrago are production line workers; they stand before a conveyor belt, remove poultry or other meat products from the belt and place the product into cases or trays for resale. Their work is done individually. Both Garcia and Buitrago are fully bilingual, speaking both English and Spanish.

Appellee Local 115, United Food and Commercial Workers International Union, AFL-CIO (“Local 115”), is the collective bargaining agent representing the employees at Spun Steak.,

Prior to September 1990, these Spun Steak employees spoke Spanish freely to their coworkers during work hours. After receiving complaints that some workers were using their bilingual capabilities to harass and to insult other workers in a language they could not understand, Spun Steak began to investigate the possibility of requiring its employees to speak only English in the workplace. Specifically, Spun Steak received complaints that Garcia and Buitrago made derogatory, racist comments in Spanish about two coworkers, one of whom is African-American and the other Chinese-American.

The company’s president, Kenneth Bertel-son, concluded that an English-only rule would promote racial harmony in the workplace. In addition, he concluded that the English-only rule would enhance worker safety because some employees who did not understand Spanish claimed that the use of Spanish distracted them while they were operating machinery, and would enhance product quality because the U.S.D.A. inspector in the plant spoke only English and thus could not understand if a product-related concern was raised in Spanish. Accordingly, the following rule was adopted:

[I]t is hereafter the policy of this Company that only English will be spoken in connection with work. During lunch, breaks, and employees’ own time, they are obviously free to speak Spanish if they wish. However, wé urge all of you not to use your fluency in Spanish in a fashion which may lead other employees to suffer humiliation.

In addition to the English-only policy, Spun Steak adopted a rule forbidding offensive racial, sexual, or personal remarks of any kind.

It is unclear from the record whether Spun Steak strictly enforced the English-only rule. According to the plaintiffs-appellees, some workers continued to speak Spanish without incident. Spun Steak issued written exceptions to the-policy allowing its clean-up crew-to speak Spanish, allowing its foreman to speak Spanish, and authorizing certain workers to speak Spanish to the foreman at the foreman’s discretion. One of the two employees who speak only Spanish is a member of the clean-up crew and thus is unaffected by the policy.

In November 1990, Garcia and Buitrago received warning letters for speaking Spanish during working hours. For approximately two months thereafter, they were not permitted to work next to each other. Local 115 protested the English-only policy and requested that it be rescinded but to no avail.

On May 6, 1991, Garcia, Buitrago, and Local 115 filed charges of discrimination against Spun Steak with the U.S. Equal Employment Opportunity Commission (“EEOC”). The EEOC conducted an investigation and determined that “there is rea*1484sonable cause to believe [Spun Steak] violated Title VII of the Civil Rights Act of 1964, as amended, with respect to its adoption of an English-only rule and with respect to retaliation when [Garcia, Buitrago, arid Local 115] complained."

Garcia, Buitrago, and Local 115, on behalf of all Spanish-speaking employees of Spun Steak, (collectively, "the' Spanish-speaking employees") filed suit, alleging that' the English-only policy violated Title VII. On September 6, 1991, the parties filed cross-motions for summary judgment. The district court denied Spun Steak's motion and granted the Spanish-speaking employees' motion for summary judgment, con~luding that the English-only policy disparately impacted Hispanic workers without sufficient business justification, and thus violated Title VII. Spun Steak filed this timely appeal and the EEOC filed a brief amicus curiae and participated in oral argument.

II

As a preliminary matter, we `must consider whether Local 115 has standing to sue on behalf of the Spanish-speaking employees at SpunSteak. If Local 115 does not have standing, we will consider the application of the policy only to Garcia and Buitrago, both of whom speak English fluently.

"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c)' neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).

Here, it is clear that the Spanish-speaking employees would have standing to sue in their own right because they gould claim injury from the application of the policy to them. Further, it is clear that the employees' interest in the conditions of the workplace is germane to Local 115's purpose as the collective bargaining agent of the employees. Finally, the claim asserted and the relief requested do not require the participation of individual members. Local 115 claims that the policy has a per se discriminatory impact on all Spanish-speaking employees. Further; the union is seeking only injunctive relief on behalf of its members, not damages.

In short, Local 115 has standing.

III

Sections 703(a)(1) and (2) of Title VII provide:

(a) It shall be an unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a). It is well-settled that Title VII is concerned not only with intentional discrimination, but also with employment practices and policies that lead to disparities in the treatment of classes of workers. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 430-31, 91 S.Ct. 849, 853-54, 28 L.Ed.2d 158 (1970). Thus, a plaintiff alleging discrimination under Title VII may proceed under two theories of liability: disparate treatment or disparate impact. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986-87, 108 S.Ct. 2777, 2784-85, 101 L.Ed.2d 827 (1987). While the disparate treatment theory requires proof of discriminatory ilitent, intent is irrelevant to a disparate impact theory. Id. at 988, 108 S.Ct. at 2785. "[I]mpact analysis is designed to implement Congressional concern with `the consequences of employment practices, not simply the motivation.'" Rose v. Wells Fargo & *1485 Co., 902 F.2d 1417, 1424 (9th Cir.1990) (citations omitted).

A

The Spanish-speaking employees do not contend that Spun Steak intentionally discriminated against them in enacting the English-only policy. Rather, they contend that the policy had a discriminatory impact on them because it imposes a burdensome term or condition of employment exclusively upon Hispanic workers and denies them a privilege of employment that non-Spanish-speaking workers enjoy. Because their claim focuses on disparities in'the terms, conditions, and privileges of employment, and not on-barriers to hiring or promotion, it is outside the mainstream of disparate impact cases decided thus far. As a threshold matter, therefore, we must determine whether the disparate impact theory can be made applicable at all.

The disparate impact cause of action developed out of the language in section 703(a)(2) prohibiting discrimination based on deprivation of employment opportunities, such as the opportunity to be hired or promoted. See, e.g., Connecticut v. Teal, 457 U.S. 440, 448-50, 102 S.Ct. 2525, 2531-32, 73 L.Ed.2d 130 (1981). Our court’s disparate impact cases fall squarely within the language of section 703(a)(2). The cases in which we have concluded that the plaintiff has proved discrimination based on a disparate impact theory have all involved plaintiffs who claimed that they were denied employment opportunities as the result of artificial, arbitrary, and unnecessary barriers that excluded members of a protected group from being hired or promoted, see, e.g., Bouman v. Block, 940 F.2d 1211, 1224-26 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 640, 116 L.Ed.2d 658 (1991), not plaintiffs contending that they were subjected to harsher working conditions than the general employee population.

This case, by contrast, does not fall within the language of section 703(a)(2). While policies that serve as barriers to hiring or promotion clearly deprive applicants of employment opportunities, we cannot conclude that a burdensome term or condition of employment or the denial of a privilege would “limit, segregate, or classify” employees in a way that would “deprive any individual of employment opportunities” or “otherwise adversely affect his status as an employee” in violation of section 703(a)(2). See Nashville Gas Co. v. Satty, 434 U.S. 136, 144, 98 S.Ct. 347, 352, 54 L.Ed.2d 356 (1977) (deprivation of benefits does not fall under § 703(a)(2)). Such claims, therefore, must be brought directly under section 703(a)(1). We have never expressly considered, however, whether disparate impact theory applies to claims under section 703(a)(1), and the Supreme Court has explicitly reserved the issue. Id.

Nevertheless, we are called upon to decide the issue in this case" notwithstanding the parties’ failure to brief it. Our decision is simple: we see no reason to restrict the application of the disparate impact theory to the denial of employment opportunities under section 703(a)(2). The Supreme Court has instructed that the language of section 703(a)(1) is to be interpreted broadly. “[T]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment,” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1985) (internal quotations and citations omitted), even when the differences in treatment are not the result of intentional discrimination. See also Lynch v. Freeman, 817 F.2d 380, 387 (6th Cir.1987) (“The language of section 703(a)(2) is ... broad enough to include working conditions that have an adverse impact on a protected group of employees.”). Regardless whether a company’s decisions about whom to hire or to promote are infected with discrimination, policies or practices that impose significantly harsher burdens on a protected group than on the employee population in general may operate as barriers to equality in the workplace and, if unsupported by a business justification, may be considered “discriminatory.” Id.; cf. Meritor Sav. Bank, 477 U.S. at 57, 106 S.Ct. at 2399 (sexual harassment can be arbitrary barrier to equality in the marketplace). We are satisfied that a disparate impact claim may be based upon a challenge to a practice or policy that has a significant *1486adverse impact on the “terms, conditions, or privileges” of the employment of a protected group under section 703(a)(1).

B

To make out a prima facie case of discriminatory impact, a plaintiff must identify a specific, seemingly neutral practice or policy that has a significantly adverse impact on persons of a protected class. Teal, 457 U.S. at 446, 102 S.Ct. at 2530. If the prima facie ease is established, the burden shifts to the employer to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C.A. § 2000e-2(k)(1)(A) (Supp.1992). In this case, the district court granted summary judgment in favor of the Spanish-speaking employees, concluding that, as a matter of law, the employees had made out the prima facie case and the justifications offered by the employer were inadequate.

1

We first consider whether the Spanish-speaking employees have made out the prima facie ease. “[T]he requirements of a prima facie disparate impact case ... are in some respects more exacting than those of a disparate treatment case.”. Spaulding v. University of Washington, 740 F.2d 686, 705 (9th Cir.) (citation omitted), cert. denied, 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). In the disparate treatment context, a plaintiff can make out a prima facie case merely by presenting evidence sufficient to give rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973). In a disparate impact case, by contrast, plaintiffs must do more than merely raise an inference of discrimination before the burden shifts; they “must actually prove the discriminatory impact at issue.” Rose, 902 F.2d at 1421. In the typical disparate impact case, in which the plaintiff argues that a selection criterion excludes protected applicants from jobs or promotions, the plaintiff proves discriminatory impact by showing, statistical disparities between the number of protected class members in the qualified applicant group and those in the relevant segment of the workforce. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650, 109 S.Ct. 2115, 2121, 104 L.Ed.2d 733 (1988). While such statistics are often difficult to compile, whether the protected group has been disadvantaged turns on quantifiable data. When the alleged disparate impact is on the conditions, terms, or privileges of employment, however, determining whether the protected group has been adversely affected may depend on subjective factors not easily quantified. The fact that the alleged effects are subjective, however, does not relieve the plaintiff: of the burden of proving disparate impact. The plaintiff may not merely assert that the policy has harmed members of the group to which he or she belongs. Instead, the plaintiff must prove the existence of adverse effects of the policy, must prove that the impact of the policy is on terms, conditions, or privileges of employment of the protected class, must prove that the adverse effects are significant, and must prove that the employee population in general is not affected by the policy to the same degree.

It is beyond dispute that, in this case, if the English-only policy causes any adverse effects, those effects will be suffered disproportionately by those of Hispanic origin. The vast majority of those workers at Spun Steak who speak.a language other than English — and virtually all those employees for whom English is not a first language — are Hispanic. It is of no consequence that not all Hispanic employees of Spun Steak speak Spanish; nor is it relevant that some non-Hispanic workers may speak Spanish. If the adverse effects are proved, it is enough under Title VII that Hispanics are disproportionately impacted.

The crux of the dispute between Spun Steak and the Spanish-speaking employees, however, is not over whether Hispanic workers will disproportionately bear any adverse effects of the policy; rather, the dispute centers on whether the policy causes any adverse effects at all, and if it does, whether the effects are significant. The Spanish-speaking employees argue that the policy adversely affects them in the following ways: (1) it denies them the ability to ex*1487press their cultural heritage on the job; (2) it denies them a privilege of employment that is enjoyed by monolingual speakers of English; and (3) it creates an atmosphere of inferiority, isolation, and intimidation. We discuss each of these contentions in turn.1

a

The employees argue that denying them the ability to speak Spanish on the job denies them the right to cultural expression. It cannot be gainsaid that an individual’s primary language can be an important link to his ethnic culture and identity. Title VII, however, does not protect the ability of workers to express their cultural heritage at the workplace. Title VII is concerned only with disparities in the treatment of workers; it does not confer substantive privileges. See, e.g., Garcia v. Gloor, 618 F.2d 264, 269 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). It is axiomatic that an employee must often sacrifice individual self-expression during working hours. Just as a private employer is not required to allow other types of self-expression, there is nothing in Title VII which requires an employer to allow employees to express their cultural identity.

b

Next, the Spanish-speaking employees argue that the English-only policy has a disparate impact on them because it deprives them of a privilege given by the employer to native-English speakers: the ability to converse on the job in the language with which they feel most comfortable. It is undisputed that Spun Steak allows its employees to converse on the job. The ability to converse— especially to make small talk — is a privilege of employment, and may in fact be a significant privilege of employment in an assembly-line job. It is inaccurate, however, to describe the privilege as broadly as the Spanish-speaking employees urge us to do.

The employees have attempted to define the privilege as the ability to speak in the language of their choice. A privilege, however, is by definition given at the employer’s discretion; an employer has the right to define its contours. Thus, an employer may allow employees to converse on the job, but only during certain times of the day or during the performance of certain tasks. The employer may proscribe certain topics as inappropriate during working hours or may even forbid the use of certain words, such as profanity.

Here, as is its prerogative, the employer has defined the privilege narrowly. When the privilege is defined at its narrowest (as merely the ability to speak on the job), we cannot conclude that those employees fluent in both English and Spanish are adversely impacted by the policy. Because they are able,to speak English, bilingual employees can engage in conversation on the job. It is axiomatic that “the language a person who is multi-lingual elects to speak at a particular time is ... a matter of choice.” Garcia, 618 F.2d at 270. The bilingual employee can readily comply with the English-only rule and still enjoy the privilege of speaking on the job. “There is no disparate impact” with respect to a privilege of employment “if the rule is one that the affected employee can readily observe and nonobservance is a matter'of individual preference.” Id.

This analysis is consistent with our decision in Jurado v. Eleven-Fifty Corporation, 813 F.2d 1406, 1412 (9th Cir.1987). In Jura-do, a bilingual disc jockey was fired for disobeying a rule forbidding him from using an occasional Spanish word or phrase on the air. We concluded that Jurado’s disparate impact claim failed “because Jurado was fluently bilingual and could easily comply with the order” and thus could not have been adversely affected. Id.

The Spanish-speaking employees argue that fully bilingual employees are hampered in the enjoyment of the privilege be*1488cause for them, switching from one language to another is not fully volitional. Whether a bilingual speaker can control which language is used in.a given circumstance is a factual issue that cannot be resolved at the summary judgment stage. However, we fail to see the relevance of the assertion, even assuming that it can be proved. Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class. Rather, Title VII protects against only those policies that have a significant impact. The fact that an employee may have to catch himself or herself from occasionally slipping into Spanish does not impose a burden significant enough to amount to the denial of equal opportunity. This is not a case in which the employees have alleged that the company is enforcing the policy in such a wáy as to impose penalties for minor slips of the tongue. The fact that a bilingual employee may, on occasion, unconsciously substitute a Spanish word in the place of an English one does not override our conclusion that the bilingual employee can easily comply with the rule. In short, we conclude that a bilingual employee is not'denied a privilege of employment by the English-only policy.

By contrast, non-English speakers cannot enjoy the privilege of conversing on the job if conversation is limited to a language they cannot speak. As applied “[t]o a person who speaks only one tongue or to a person who has' difficulty using another language than the one spoken in his home,” an English-only rule might well have an adverse impact. Garcia, 618 F.2d at 270. Indeed, counsel for Spun Steak conceded at oral argument that the policy would have an adverse impact on an employee unable to speak English. There is only one employee at Spun Steak affected by the policy who is unable to speak any English. Even with regard to her, however, summary judgment-was improper because a genuine issue of material fact exists as to whether she has been adversely affected by the policy. She stated in her deposition that she was not bothered by the rule because she preferred not to make small talk on the job, but rather preferred to work in peace. Furthermore, there is some evidence suggesting that she is not required to comply -with the policy when she chooses to speak. For example, she is allowed to speak Spanish to her supervisor. Remand is necessary to determine whether she has suffered adverse effects from the policy. It is unclear from the record whether there are any other employees who have such limited proficiency in English that they are effectively denied the privilege of speaking on the job. Whether an employee speaks such little English as to be effectively denied the privilege is a question of fact for which summary judgment is improper.

c

Finally, the Spanish-speaking employees argue that the policy creates an atmosphere of inferiority, isolation, and intimidation. Under this theory, the employees do not assert that the policy directly affects a term, condition, or privilege of employment. Instead, the argument must be that the policy causes the work environment to become infused with ethnic tensions. The tense environment, the argument goes, itself amounts to a condition of employment.

i

The Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. at 66, 106 S.Ct. at 2405, held that an abusive work environment may, in some circumstances, amount to a condition of employment giving rise to a violation of Title VII. The Court quoted with approval the decision in Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972):

[T]he phrase ‘terms, conditions or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.... One can readily envision working environments so heavily polluted -with discrimination as to destroy completely the emotional and psychological stability of minority group workers.

Although Vinson is a sexual harassment case in which the individual incidents involved behavior that was arguably intentionally discriminatory, its rationale applies equally to *1489eases in which seemingly neutral policies of a company infuse the atmosphere of the workplace with discrimination. The Vinson Court emphasized, however, that discriminatory practices must be pervasive before an employee has a Title VII claim under a hostile environment theory.

Here, the employees urge us to adopt a per se rule that English-only policies always infect the working environment to such a degree as to amount to a hostile or abusive work environment. This we cannot do. Whether a working environment is infused with discrimination is a factual question, one for which a per se rule is particularly inappropriate. The dynamics of an individual workplace are enormously complex; we cannot conclude, as a matter of law, that the introduction of an English-only policy, in every workplace, will always have the same effect.

The Spanish-speaking employees in this ease have presented no evidence other than conclusory statements that the policy has contributed to an atmosphere of “isolation, inferiority or intimidation.” The bilingual employees are able to comply with the rule, and there is no evidence to show that the atmosphere at Spun Steak in general is infused with hostility toward Hispanic workers. Indeed, there is substantial evidence in the record demonstrating that the policy was enacted to prevent the employees from intentionally using their fluency in Spanish to isolate and to intimidate members of other ethnic groups. In light of the specific factual context of this case, we conclude that the bilingual employees have not raised a genuine issue of material fact that the effect is so pronounced as to amount to a hostile environment. See generally Anderson v. Liberty Lobby, 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

ii

We do not foreclose the prospect that in some circumstances English-only rules can exacerbate existing tensions, or, when combined with other discriminatory behavior, contribute to an overall environment of discrimination. Likewise, we can envision a ease in which such rules are enforced in such a draconian manner that the enforcement itself amounts to harassment. In evaluating such a claim, however, a court must look to the totality of the circumstances‘in the particular factual context in which the claim arises.

In holding that the enactment of an English-only while working policy does not inexorably lead to an abusive. environment for those whose primary language is not English, we reach a conclusion opposite to the EEOC’s long standing position. The EEOC Guidelines provide that an employee meets the prima facie ease in a disparate impact cause of action merely by proving the existence of the English-only policy. See 29 C.F.R. § 1606.7(a) & (b) (1991). Under the EEOC’s scheme, an employer must always provide a business justification for such a rule. Id. The EEOC enacted this scheme in part because of its conclusion that English-only rules may “create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment.” 29 C.F.R. § 1606.7(a).

We do not reject the English-only rule Guideline lightly. We recognize that “as an administrative interpretation of the Act by the enforcing agency, these Guidelines ... constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank, 477 U.S. 57 at 65, 106 S.Ct. 2399 at 2404 (internal quotations and citations omitted). But we -are not bound by the Guidelines. See Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.Ed.2d 287 (1973). We will not defer to “an administrative construction of a statute where there are ‘compelling indications that it is wrong.’ ” Id.

We have been impressed by Judge Rubin’s pre-Guidelines analysis for the Fifth Circuit in Garcia, which we follow today. Garcia, 618 F.2d 264. Nothing in the plain language of section 703(a)(1) supports EEOC’s English-only rule Guideline. “Title VII could not have -been enacted into law without substantial support from legislators in both Houses who traditionally resisted federal regulation of private business.” United Steelworkers of America, AFL-CIO v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). “Those legislators demanded as a price for their support that,” id.,

*1490management prerogatives, and union freedoms are to be left undisturbed to the greatest extent possible. Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices. . .

Statement of William M. McCulloch, et al., H.R.Rep. No. 914, 88 Cong., 2d Sess (1964), reprinted in 1964 U.S.C.C.A.N. 2356, 2516 (quoted in part in Steelworkers, 443 U.S. at 206, 99 S.Ct. at 2728). It is clear that Congress intended a balance to be struck in preventing discrimination and preserving the independence of the employer. In striking that balance, the Supreme Court has held that a plaintiff in a disparate impact case must prove the alleged discriminatory effect before the burden shifts- to the employer. The EEOC Guideline at issue here contravenes that policy by presuming that an English-only policy has a disparate impact in the absence of proof. We are not aware of, nor has counsel shown us, anything in the legislative history to Title VII that indicates that English-only policies are to be presumed discriminatory. Indeed, nowhere in the legislative history is there a discussion of English-only policies at all.

2

Because the bilingual employees have failed to make out a prima facie case, we need not consider the business justifications offered for the policy as applied to them. On remand, if Local 115 is able to make out a prima facie case with regard to employees with limited proficiency in English, the district court could then consider any business justification offered by Spun Steak.

IV

In sum, we conclude that the bilingual employees have not made out a prima facie case and that Spun Steak has not violated Title VII in adopting an English-only rule as to them. Thus, we reverse the grant of summary judgment in favor of Garcia, Buitrago, and Local 115 to the extent it represents the bilingual employees, and remand with instructions to grant summary judgment in favor of Spun Steak on their claims. A genuine issue of material fact exists as to whether there are one or more employees represented by Local 115 with limited proficiency in English who were adversely impacted by the policy. As to such employee or employees, we reverse the grant of summary judgment in favor of Local 115, and remand for further proceedings.

REVERSED and REMANDED.

BOOCHEVER, Circuit Judge,

dissenting in part:

I agree with most of the majority’s carefully crafted opinion. I dissent, however, from the majority’s rejection of the EEOC guidelines. The guidelines provide that an employee establishes a prima facie case in a disparate impact claim by proving the existence of an English-only policy, thereby shifting the burden to the employer to show a business necessity for the rule. See 29 C.F.R. § 1606.7(b) (1991) (“An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.”). I would defer to the Commission’s expertise in construing the Act, by virtue of which it concluded that English-only rules may “create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment.” Id. § 1606.7(a).

As the majority indicates, proof of such an effect of English-only rules requires analysis of subjective factors. It is hard to envision how the burden of proving such an effect would be met other than by conclusory self-serving statements of the Spanish-speaking employees or possibly by expert testimony of psychologists. The difficulty of meeting such a burden may well have been one of the reasons for the promulgation of the guideline. On the other hand, it should not be difficult for an employer to give specific reasons for the policy, such as the safety reasons advanced in this case.

It is true that EEOC regulations are entitled to somewhat less weight than those promulgated by an agency with Congressionally delegated rulemaking authority. General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 97 S.Ct. 401, 410, 50 L.Ed.2d 343 (1976). Nevertheless, the EEOC guideline is entitled to “great deference” in the absence of “compelling indications that it is wrong.” Espinoza *1491 v. Farah Mfg. Co., 414 U.S. 86, 94-95, 94 S.Ct. 334, 339-340, 38 L.Ed.2d 287 (1973). While one may reasonably differ with the EEOC’s position as a matter of policy, I can find no such “compelling indications” in this ease. The lack of directly supporting language in § 703(a)(1) or the legislative history of Title VII, relied on by the majority, does not in my- opinion make the guideline “inconsistent with an obvious congressional intent not to reach the employment practice in question.” Id. at 94, 94 S.Ct. at 339.

I conclude that if appropriate deference is given to the administrative interpretation of the Act, we should follow the guideline and uphold the district court’s decision that a prima facie case was established. I believe, however, that triable issues were presented whether Spun Steak established a business justification for the rule, and I would remand for trial of that issue.

TROTT, Circuit Judge:

Manuel Fragante applied for a clerk’s job with the City and County of Honolulu (Defendants). Although he placed high enough on a civil service eligible list to be chosen for the position, he was not selected because of a perceived deficiency in relevant oral communication skills caused by his “heavy Filipino accent.” Fragante brought suit, alleging that the defendants discriminated against him on the basis of his national origin, in violation of Title VII of the Civil Rights Act. At the conclusion of a trial, the district court found that the oral ability to communicate effectively and clearly was a legitimate occupational qualification for the job in question. This finding was based on the court’s understanding that an important aspect of defendant’s business — for which a clerk would be responsible — involved the providing of services and assistance to the general public. The court also found that defendant’s failure to hire Fragante was explained by his deficiencies in the area of oral communication, not because of his national origin, Finding no proof of a discriminatory intent or motive by the defendant, the court dismissed Fragante’s complaint, 699 F.Supp. 1429, and he appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

FACTS

In April 1981, at the age of sixty, Fra-gante emigrated from the Philippines to Hawaii. In response to a newspaper ad, he applied in November of 1981 for the job at issue in this appeal — an entry level Civil Service Clerk SR-8 job for the City of Honolulu’s Division of Motor Vehicles and Licensing. The SR-8 clerk position involved such tasks as filing, processing mail, cashiering, orally providing routine information to the “sometimes contentious” public over the telephone and at an information counter, and obtaining supplies. Fragante scored the highest of 721 test takers on the written SR-8 Civil Service Examination which tested, among other things, word usage, grammar and spelling. Accordingly, he was ranked first on a certified list of eligibles for two SR-8 clerk positions, an achievement of which he is understandably quite proud.

Fragante then was interviewed in the normal course of the selection process — as were other applicants — by George Kuwa-hara, the assistant licensing administrator, and Kalani McCandless, the division secretary. Both Kuwahara and McCandless were personally familiar with the demands of the position at issue, and both had extensive experience interviewing applicants to the division. During the interview, Kuwa-hara stressed that the position involved constant public contact and that the ability to speak clearly was one of the most important skills required for the position.

Both Kuwahara and McCandless had difficulty understanding Fragante due to his pronounced Filipino accent, and they determined on the basis of the oral interview that he would be difficult to understand *594both at the information counter and over the telephone. Accordingly, both interviewers gave Fragante a negative recommendation. They noted he had a very pronounced accent and was difficult to understand. It was their judgment that this would interfere with his performance of certain aspects of the job. As a consequence, Mr. Fragante dropped from number one to number three on the list of eligibles for the position.

Under the city’s civil service rules, the Department of Motor Vehicles and Licensing, as the appointing authority, is allowed discretion in selecting applicants for the clerk vacancies. City Civil Service Rule 4.2(d) allows the defendants to select any of the top five eligibles without regard to their rank order.1 The essence of this rule was clearly stated in the employment announcement posted for the SR-8 position:

The names of the “top five’’ qualified applicants with the highest examination grades will be referred to the employing agency in the order of their examination grade and availability for employment according to Civil Service Rules. The employing agency may select any one of the eligibles referred. Those not selected will remain on the list for at least one year for future referrals.

In accord with this process, the two other applicants who were judged more qualified than Fragante and who therefore placed higher than he on the final list got the two available jobs, and he was so notified by mail.

After exhausting administrative remedies, Fragante filed a claim under Title VII of the Civil Rights Act against the City and County of Honolulu, alleging he was discriminated against because of his accent. The district court relied on the results of the oral interview and found that Fra-gante’s oral skills were “hampered by his accent or manner of speaking.” The court found no evidence of unlawful discrimination in violation of Title VII, concluding that Fragante lacked the “bona fide occupational requirement”2 of being able to communicate effectively with the public, and dismissed his claim.

II

DISCUSSION

The ultimate question of discrimination is generally considered a finding of fact subject on review to the clearly erroneous standard. United States Postal Service v. Aiken, 460 U.S. 711, 715-16, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983); Alaniz v. California Processors, Inc., 785 F.2d 1412, 1416 (9th Cir.1986). However, such findings based on an erroneous application of law are reviewable as questions of law. Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Alaniz, 785 F.2d at 1416.

Title VII prohibits employment discrimination on the basis of race, color, sex, religion and national origin. 42 U.S.C. § 2000e-2(a)(l) (1982). A plaintiff may bring an action against an employer under a disparate treatment and/or disparate impact theory. Fragante’s action was brought under the disparate treatment theory.

In disparate treatment eases, the employer is normally alleged to have “treat[ed] a person less favorably than others because of the person’s race, color, religion, sex, or national origin....” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The plaintiff has the initial burden in such a case of proving by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas Corp. *595 v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

To establish a prima facie case of disparate treatment, the plaintiff must offer evidence that “give[s] rise to an inference of unlawful discrimination.” Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir.1987) (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)). Plaintiffs commonly prove a prima facie case by showing that the four factors set forth in McDonnell Douglas are present. To accomplish this, a plaintiff such as Fragante must show: (1) that he has an identifiable national origin; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that he was rejected despite his qualifications; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id. “Title VII’s nature and purpose require that the McDonnell Douglas test be flexible.” Spaulding v. University of Washington, 740 F.2d 686, 700 (9th Cir.), cert. denied 469 U.S. 1036, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). The burden of establishing a prima facie case for disparate treatment is not onerous. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. A determination of whether a plaintiff establishes a prima facie ease will depend on the facts of each case. Id.

Once the plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by “articulating some legitimate, nondiscriminatory reason” for the adverse action. Id. at 254, 101 S.Ct. at 1094. After the employer presents legitimate reasons for plaintiffs non-selection, the burden shifts to the plaintiff, and he must show — if he can — that the employer’s purported reason for non-selection was “a pretext for invidious discrimination”. Id. at 252-53, 101 S.Ct. at 1093. To succeed in carrying the ultimate burden of proving intentional discrimination, a plaintiff may establish a pretext either directly, by showing that the employer was more likely motivated by a discriminatory reason, or indirectly, by showing the employer’s proffered reason is unworthy of credence. Id. at 256, 101 S.Ct. at 1095.

A. Prima Facie Case

Defendants first argue Fragante failed to meet his burden of proving a prima facie case because he failed to show he was actually qualified for the SR-8 clerk position, a position which requires the applicant to be able to communicate clearly and effectively. Fragante, on the other hand, contends he was qualified for the position. As proof he points to his exceptional score on the objective written examination, and he argues that his speech, though heavily accented, was deemed comprehensible by two expert witnesses at trial. Fragante’s position is supported by the approach taken by the Equal Employment Opportunity Commission which submits that a plaintiff who proves he has been discriminated against solely because of his accent does establish a prima facie case of national origin discrimination. Bell v. Home Life Insurance Co., 596 F.Supp. 1549, 1554-55 (M.D.N.C.1984); Carino v. University of Oklahoma, 25 FEP Cases 1332, 1336-37 (W.D.Okla.1981), aff'd, 750 F.2d 815 (10th Cir.1984). See also Berke v. Ohio Dept. of Public Welfare, 628 F.2d 980, 981 (6th Cir.1980) (per curiam) (court upheld determination that discrimination on the basis of foreign accent was a sufficient basis for finding national origin discrimination). This contention is further supported by EEOC guidelines which define discrimination to include “the denial of equal employment opportunity ... because an individual has the ... linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1 (1988). Furthermore, Fragante was never advised that he was not qualified for the job: he was only told that he was less-qualified than his competition.

Because we find that Fragante did not carry the ultimate burden of proving national origin discrimination, however, the issue of whether Fragante established a prima facie case of discrimination is not *596significant, and we assume without deciding that he did.

B. The Statute and its Purpose

Preliminarily, we do well to remember that this country was founded and has been built in large measure by people from other lands, many of whom came here — especially after our early beginnings — with a limited knowledge of English. This flow of immigrants has continued and has been encouraged over the years. From its inception, the United States of America has been a dream to many around the world. We hold out promises of freedom, equality, and economic opportunity to many who only know these words as concepts. It would be more than ironic if we followed up our invitation to people such as Manuel Fragante with a closed economic door based on national origin discrimination. It is no surprise that Title VII speaks to this issue and clearly articulates the policy of our nation: unlawful discrimination based on national origin shall not be permitted to exist in the workplace. But, it is also true that there is another important aspect of Title VII: the “preservation of an employer’s remaining freedom of choice.” Price Waterhouse v. Ann B. Hopkins, — U.S. -, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In that regard, the court said:

To begin with, the existence of the BFOQ exception shows Congress’ unwillingness to require employers to change the very nature of their operations in response to the statute. And our emphasis on “business necessity” in disparate-impact cases, see Watson and Griggs, and on “legitimate, nondiscriminatory reason[s]” in disparate-treatment cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), results from our awareness of Title VII’s balance between employee rights and employer prerogatives.

When an employer ignored the attributes enumerated in the statute, Congress hoped, it naturally would focus on the qualifications of the applicant or employee. The intent to drive employers to focus on qualifications rather than on race, religion, sex, or national origin is the theme of a good deal of the statute’s legislative history.

Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, ....

Id. 109 S.Ct. at 1786-87.

With this guidance in mind, and particularly its focus on employment qualifications, we proceed to the task at hand.

C. Proof of an Ultimate Case of Discrimination

We turn our discussion to whether defendants articulated a legitimate, nondiscriminatory reason for Fragante’s nonselection. We find that they did, but to this finding we add a note of caution to the trial courts. Accent and national origin are obviously inextricably intertwined in many cases. It would therefore be an easy refuge in this context for an employer unlawfully discriminating against someone based on national origin to state falsely that it was not the person’s national origin that caused the employment or promotion problem, but the candidate’s inability to measure up to the communications skills demanded by the job. We encourage a very searching look by the district courts at such a claim.3

An adverse employment decision may be predicated upon an individual’s accent when — but only when — it interferes materially with job performance. There is nothing improper about an employer mak*597ing an honest assessment of the oral communications skills of a candidate for a job when such skills are reasonably related to job performance. EEOC Compliance Manual (CCH) 114035 at 3877-78 (1986); see also Mejia v. New York Sheraton Hotel, 459 F.Supp. 375, 377 (S.D.N.Y.1978) (Dominican chambermaid properly denied promotion to front desk because of her “inability to articulate clearly or coherently and to make herself adequately understood in ... English”); Carino v. University of Oklahoma Board of Regents, 750 F.2d 815, 819 (10th Cir.1984) (plaintiff with a “noticeable” Filipino accent was improperly denied a position as supervisor of a dental laboratory where his accent did not interfere with his ability to perform supervisory tasks); Berke, 628 F.2d at 981 (employee with “pronounced” Polish accent whose command of English was “well above that of the average adult American” was improperly denied two positions because of her accent).

The defendants advertised for applicants to fill SR-8 vacancies. The initial job announcement listed the ability 'to “deal tactfully and effectively with the public” as one of the areas to be tested. There is no doubt from the record that the oral ability to communicate effectively in English is reasonably related to the normal operation of the clerk’s office. A clerk must be able to respond to the public’s questions in a manner which the public can understand. In this regard, the district court in its Findings of Fact and Conclusions of Law and Order made the following significant observations:

The job is a difficult one because it involves dealing with a great number of disgruntled members of the public. The clerk must deal with 200-300 people a day, many of whom are angry or complaining and who do not want to hear what the clerk may have to explain concerning their applications or an answer to their questions. It is a high turnover position where people leave quickly because of the high stress involving daily contact with contentious people.

(Clerk’s Record 30 at 7).

What must next be determined is whether defendants established a factual basis for believing that Fragante would be hampered in performing this requirement. Defendants submit that because his accent made Fragante difficult to understand as determined by the interview, he would be less able to perform the job than other applicants. Fragante, on the other hand, contends he is able to communicate effectively in English as established by two expert witnesses at trial and by his responses in open court. In essence, he argues his non-selection was effectively based upon national origin discrimination.

After the interview, Kuwahara and McCandless scored Fragante on a rating sheet that was used for all applicants. Applicants were scored in the categories of appearance, speech, self-confidence, emotional control, alertness, initiative, personality, attitude, work experience, and overall fitness for the job. A scale of 1-10 was used. Kuwahara gave Fragante a score of 3 for speech, and noted: “very pronounced accent, difficult to understand.” Although McCandless did not enter a score in the speech category, she noted: “Heavy Filipino accent. Would be difficult to understand over the telephone.”

After the interviews were scored, Kuwa-hara and McCandless reviewed the scores, discussed the applicants, and decided on their hiring recommendation to finance director Peter Leong. In making the recommendation, written examination scores were given no consideration. Kuwahara prepared the written recommendation to Leong, dated April 13, 1982, recommending two others for selection. Fragante in his position as Number 3 on the final list was described as follows:

3. Manuel Fragante — Retired Phillip-pine (sic) army officer. Speaks with very pronounced accent which is difficult to understand. He has 37 years of experience in management administration and appears more qualified for professional rather than clerical work. However, because of his accent, I would not recommend him for this position.

(P.Ex. A at 9; P.Ex. N).

McCandless then notified Fragante that he was not selected for either of the clerk *598position vacancies. Pursuant to a request from Fragante, Kuwahara then reduced the matter to writing. In a letter, dated June 28, 1982, the reasons why he was not selected were articulated as follows:

As to the reason for your non-selection, we felt the two selected applicants were both superior in their verbal communication ability. As we indicated in your interview, our clerks are constantly dealing with the public and the ability to speak clearly is one of the most important skills required for the position. Therefore, while we were impressed with your educational and employment history, we felt the applicants selected would be better able to work in our office because of their communication skills.

(P.Ex. A at 10; P.Ex. Q).

Thus, the interviewers’ record discloses Fragante’s third place ranking was based on his “pronounced accent which is difficult to understand.” Indeed, Fragante can point to no facts which indicate that his ranking was based on factors other than his inability to communicate effectively with the public. This view was shared by the district court.

Although the district court determined that the interview lacked some formality as to standards, instructions, guidelines, or criteria for its conduct and that the rating sheet was inadequate, the court also found that these “insufficiencies” were irrelevant with respect to plaintiff’s complaint of unlawful discrimination. A review of the record reveals nothing that would impeach this assessment. Kuwahara and McCandless recorded their evaluation of Fragante’s problem in separate written remarks on their rating sheets. As such, a legitimate factual basis for this conclusion that Fra-gante would be less able than his competition to perform the required duties was established.

Fragante argues the district court erred in considering “listener prejudice” as a legitimate, nondiscriminatory reason for failure to hire. We find, however, that the district court did not determine defendants refused to hire Fragante on the basis that some listeners would “turn off” a Filipino accent. The district court after trial noted that: “Fragante, in fact, has a difficult manner of pronunciation and the Court further finds as a fact from his general testimony that he would often not respond directly to the questions as propounded. He maintains much of his military bearing.” We regard the last sentence of the court’s comment to be little more than a stray remark of no moment.

We do not find the court's conclusion clearly erroneous. We find support for our view in Fernandez v. Wynn Oil., 653 F.2d 1273, 1275 (9th Cir.1981), where this court held inability to communicate effectively to be one valid ground for finding a job applicant not qualified.

Having established that defendants articulated a legitimate reason for Fragante’s non-selection, our next inquiry is whether the reason was a mere pretext for discrimination. Fragante essentially argues that defendant’s selection and evaluation procedures were so deficient as to render the proffered reason for non-selection nothing more than a pretext for national origin discrimination. The problem with this argument, however, is that on examination it is only a charge without substance. The process may not have been perfect, but it reveals no discriminatory motive or intent. Search as we have, we have not been able to find even a hint of a mixed motive such as existed in Price Waterhouse. Instead, it appears that defendants were motivated exclusively by reasonable business necessity-

Fragante’s counsel attempts to cast this case as one in which his client was denied a job simply because he had a difficult accent. This materially alters what actually happened. Fragante failed to get the job because two competitors had superior qualifications with respect to a relevant task performed by a government clerk. Insofar as this implicates “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees ...,” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968), it is not something we are permitted to ignore. Title VII does not stand for the proposition that a person in a protected *599class — or a person with a foreign accent— shall enjoy a position of advantage thereby when competing for a job against others not similarly protected. Cf Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977). And, the record does not show that the jobs went to persons less qualified than Fragante: to the contrary.

Under our holding in Ward v. Westland Plastics, Inc., 651 F. 1266, 1269 (9th Cir.1980), “[a]n employer’s decision may be justified by the hired employee’s superior qualifications unless the purported justification is a pretext for invidious discrimination." Fernandez, 653 F.2d at 1276. In this case, there is simply no proof whatsoever of pretext, and we do not find the district court’s finding of “no discrimination” to be clearly erroneous.

In sum, the record conclusively shows that Fragante was passed over because of the deleterious effect of his Filipino accent on his ability to communicate orally, not merely because he had such an accent.

The district court is

AFFIRMED.

*645Justice White

delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., makes it an unfair employment practice for an employer to discriminate against any individual with respect to hiring or the terms and condition of employment because of such individual’s race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees in ways that would adversely affect any employee because of the employee’s race, color, religion, sex, or national origin.1 §2000e-2(a). Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971), construed Title VII to proscribe “not only overt discrimination but also practices that are fair in form but discriminatory in practice.” Under this basis for liability, which is known as the “disparate-impact” theory and which is involved in this case, a facially neutral *646employment practice may be deemed violative of Title VII without evidence of the employer’s subjective intent to discriminate that is required in a “disparate-treatment” case.

I

The claims before us are disparate-impact claims, involving the employment practices of petitioners, two companies that operate salmon canneries in remote and widely separated areas of Alaska. The canneries operate only during the salmon runs in the summer months. They are inoperative and vacant for the rest of the year. In May or June of each year, a few weeks before the salmon runs begin, workers arrive and prepare the equipment and facilities for the canning operation. Most of these workers possess a variety of skills. When salmon runs are about to begin, the workers who will operate the cannery lines arrive, remain as long as there are fish to can, and then depart. The canneries are then closed down, winterized, and left vacant until the next spring. During the off-season, the companies employ only a small number of individuals at their headquarters in Seattle and Astoria, Oregon, plus some employees at the winter shipyard in Seattle.

The length and size of salmon runs vary from year to year, and hence the number of employees needed at each cannery also varies. Estimates are made as early in the winter as possible; the necessary employees are hired, and when the time comes, they are transported to the canneries. Salmon must be processed soon after they are caught, and the work during the canning season is therefore intense.2 For this *647reason, and because the canneries are located in remote regions, all workers are housed at the canneries and have their meals in company-owned mess halls.

Jobs at the canneries are of two general types: “cannery jobs” on the cannery line, which are unskilled positions; and “noncannery jobs,” which fall into a variety of classifications. Most noncannery jobs are classified as skilled positions.3 Cannery jobs are filled predominantly by nonwhites: Filipinos and Alaska Natives. The Filipinos are hired through, and dispatched by, Local 37 of the International Longshoremen’s and Warehousemen’s Union pursuant to a hiring hall agreement with the local. The Alaska Natives primarily reside in villages near the remote cannery locations. Non-cannery jobs are filled with predominantly white workers, who are hired during the winter months from the companies’ offices in Washington and Oregon. Virtually all of the non-cannery jobs pay more than cannery positions. The predominantly white noncannery workers and the predominantly nonwhite cannery employees live in separate dormitories and eat in separate mess halls.

In 1974, respondents, a class of nonwhite cannery workers who were (or had been) employed at the canneries, brought this Title VII action against petitioners. Respondents alleged that a variety of petitioners’ hiring/promotion practices— e. g., nepotism, a rehire preference, a lack of objective hiring criteria, separate hiring channels, a practice of not promoting from within — were responsible for the racial strati*648fication of the work force and had denied them and other nonwhites employment as noncannery workers on the basis of race. Respondents also complained of petitioners’ racially segregated housing and dining facilities. All of respondents’ claims were advanced under both the disparate-treatment and disparate-impact theories of Title VII liability.

The District Court held a bench trial, after which it entered 172 findings of fact. 34 EPD ¶34,437, pp. 33,822-33,836 (WD Wash. 1983). It then rejected all of respondents’ disparate-treatment claims. It also rejected the disparate-impact challenges involving the subjective employment criteria used by petitioners to fill these noncannery positions, on the ground that those criteria were not subject to attack under a disparate-impact theory. Id., p.33,840. Petitioners’ “objective” employment practices (e. g., an English language requirement, alleged nepotism in hiring, failure to post noncannery openings, the rehire preference, etc.) were found to be subject to challenge under the disparate-impact theory, but these claims were rejected for failure of proof. Judgment was entered for petitioners.

On appeal, a panel of the Ninth Circuit affirmed, 768 F. 2d 1120 (1985), but that decision was vacated when the Court of Appeals agreed to hear the case en banc, 787 F. 2d 462 (1985). The en banc hearing was ordered to settle an intracircuit conflict over the question whether subjective hiring practices could be analyzed under a disparate-impact model; the Court of Appeals held — as this Court subsequently ruled in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988)— that disparate-impact analysis could be applied to subjective hiring practices. 810 F. 2d 1477, 1482 (1987). The Ninth Circuit also concluded that in such a case, “[o]nce the plaintiff class has shown disparate impact caused by specific, identifiable employment practices or criteria, the burden shifts to the employer,” id., at 1485, to “prov[e the] business necessity” of the challenged practice, id., at 1486. Because the en banc holding on subjective employment practices reversed *649the District Court’s contrary ruling, the en banc Court of Appeals remanded the case to a panel for further proceedings.

On remand, the panel applied the en banc ruling to the facts of this case. 827 F. 2d 439 (1987). It held that respondents had made out a prima facie case of disparate impact in hiring for both skilled and unskilled noncannery positions. The panel remanded the case for further proceedings, instructing the District Court that it was the employer’s burden to prove that any disparate impact caused by its hiring and employment practices was justified by business necessity. Neither the en banc court nor the panel disturbed the District Court’s rejection of the disparate-treatment claims.4

Petitioners sought review of the Court of Appeals’ decision in this Court, challenging it on several grounds. Because some of the issues raised by the decision below were matters *650on which this Court was evenly divided in Watson v. Fort Worth Bank & Trust, supra, we granted certiorari, 487 U. S. 1264 (1988), for the purpose of addressing these disputed questions of the proper application of Title VII’s disparate-impact theory of liability.

II

In holding that respondents had made out a prima facie case of disparate impact, the Court of Appeals relied solely on respondents’ statistics showing a high percentage of nonwhite workers in the cannery jobs and a low percentage of such workers in the noncannery positions.5 Although statistical proof can alone make out a prima facie case, see Teamsters v. United States, 431 U. S. 324, 339 (1977); Hazelwood School Dist. v. United States, 433 U. S. 299, 307-308 (1977), the Court of Appeals’ ruling here misapprehends our precedents and the purposes of Title VII, and we therefore reverse.

“There can be no doubt,” as there was when a similar mistaken analysis had been undertaken by the courts below in Hazelwood, supra, at 308, “that the . . . comparison . . . fundamentally misconceived the role of statistics in employment discrimination cases.” The “proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market.” Ibid. It is such a comparison — between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs — that generally forms *651the proper basis for the initial inquiry in a disparate-impact case. Alternatively, in cases where such labor market statistics will be difficult if not impossible to ascertain, we have recognized that certain other statistics — such as measures indicating the racial composition of “otherwise-qualified applicants” for at-issue jobs — are equally probative for this purpose. See, e. g., New York City Transit Authority v. Beazer, 440 U. S. 568, 585 (1979).6

It is clear to us that the Court of Appeals’ acceptance of the comparison between the racial composition of the cannery work force and that of the noncannery work force, as probative of a prima facie case of disparate impact in the selection of the latter group of workers, was flawed for several reasons. Most obviously, with respect to the skilled non-cannery jobs at issue here, the cannery work force in no way reflected “the pool of qualified job applicants” or the “qualified population in the labor force.” Measuring alleged discrimination in the selection of accountants, managers, boat captains, electricians, doctors, and engineers — and the long list of other “skilled” noncannery positions found to exist by the District Court, see 34 EPD ¶ 34,437, p. 33,832 — by comparing the number of nonwhites occupying these jobs to the number of nonwhites filling cannery worker positions is nonsensical. If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners’ fault),7 petition*652ers’ selection methods or employment practices cannot be said to have had a “disparate impact” on nonwhites.

One example illustrates why this must be so. Respondents’ own statistics concerning the noncannery work force at one of the canneries at issue here indicate that approximately 17% of the new hires for medical jobs, and 15% of the new hires for officer worker positions, were nonwhite. See App. to Brief for Respondents B-l. If it were the case that less than 15 to 17% of the applicants for these jobs were nonwhite and that nonwhites made up a lower percentage of the relevant qualified labor market, it is hard to see how respondents, without more, cf. Connecticut v. Teal, 457 U. S. 440 (1982), would have made out a prima facie case of disparate impact. Yet, under the Court of Appeals’ theory, simply because nonwhites comprise 52% of the cannery workers at the cannery in question, see App. to Brief for Respondents B-l, respondents would be successful in establishing a prima facie case of racial discrimination under Title VII.

Such a result cannot be squared with our cases or with the goals behind the statute. The Court of Appeals’ theory, at the very least, would mean that any employer who had a segment of his work force that was — for some reason — racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the “business necessity” of the methods used to select the other members of his work force. The only practicable option for many employers would be to adopt racial quotas, insuring that no portion of their work forces deviated in racial composition from the other portions thereof; this is a result that Congress expressly rejected in drafting Title VII. See 42 U. S. C. §2000e-2(j); see also Watson v. Fort Worth Bank & Trust, 487 U. S. at 922-994, and n. 2 (opinion of O’Connor, J.). The Court of Appeals’ theory would “leave the employer little choice . . . but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.” Albemarle Paper Co. v. Moody, *653422 U. S. 405, 449 (1975) (Blackmun, J., concurring in judgment).

The Court of Appeals also erred with respect to the unskilled noncannery positions. Racial imbalance in one segment of an employer’s work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer’s other positions, even where workers for the different positions may have somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). As long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery positions, see n. 6, supra, if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, the employer’s selection mechanism probably does not operate with a disparate impact on minorities.8 Where this is the case, the percentage of nonwhite workers found in other positions in the employer’s labor force is irrelevant to the question of a prima facie statistical case of disparate impact. As noted above, a contrary ruling on this point would almost inexorably lead to the use of numerical quotas in the workplace, a result that Congress and this Court have rejected repeatedly in the past.

Moreover, isolating the cannery workers as the potential “labor force” for unskilled noncannery positions is at once both too broad and too narrow in its focus. It is too broad because the vast majority of these cannery workers did not *654seek jobs in unskilled noneannery positions; there is no showing that many of them would have done so even if none of the arguably “deterring” practices existed. Thus, the pool of cannery workers cannot be used as a surrogate for the class of qualified job applicants because it contains many persons who have not (and would not) be noncannery job applicants. Conversely, if respondents propose to use the cannery workers for comparison purposes because they represent the “qualified labor population” generally, the group is too narrow because there are obviously many qualified persons in the labor market for noncannery jobs who are not cannery workers.

The peculiar facts of this case further illustrate why a comparison between the percentage of nonwhite cannery workers and nonwhite noncannery workers is an improper basis for making out a claim of disparate impact. Here, the District Court found that nonwhites were “overrepresent[ed]” among cannery workers because petitioners had contracted with a predominantly nonwhite union (local 37) to fill these positions. See 34 EPD ¶33,437, p. 33,829. As a result, if petitioners (for some permissible reason) ceased using local 37 as its hiring channel for cannery positions, it appears (according to the District Court’s findings) that the racial stratification between the cannery and noncannery workers might diminish to statistical insignificance. Under the Court of Appeals’ approach, therefore, it is possible that with no change whatsoever in their hiring practices for noncannery workers — the jobs at issue in this lawsuit — petitioners could make respondents’ prima facie case of disparate impact “disappear. ” But ¿/‘there would be no prima facie case of disparate impact in the selection of noncannery workers absent petitioners’ use of local 37 to hire cannery workers, surely petitioners’ reliance on the union to fill the cannery jobs not at issue here (and its resulting “overrepresentation” of nonwhites in those positions) does not — standing alone — make out a prima facie case of disparate impact. Yet it is precisely *655such an ironic result that the Court of Appeals reached below.

Consequently, we reverse the Court of Appeals’ ruling that a comparison between the percentage of cannery workers who are nonwhite and the percentage of noncannery workers who are nonwhite makes out a prima facie case of disparate impact. Of course, this leaves unresolved whether the record made in the District Court will support a conclusion that a prima facie case of disparate impact has been established on some basis other than the racial disparity between cannery and noncannery workers. This is an issue that the Court of Appeals or the District Court should address in the first instance.

Ill

Since the statistical disparity relied on by the Court of Appeals did not suffice to make out a prima facie case, any inquiry by us into whether the specific challenged employment practices of petitioners caused that disparity is pretermitted, as is any inquiry into whether the disparate impact that any employment practice may have had was justified by business considerations.9 Because we remand for further proceedings, however, on whether a prima facie case of disparate impact has been made in defensible fashion in this case, we address two other challenges petitioners have made to the decision of the Court of Appeals.

*656A

First is the question of causation in a disparate-impact case. The law in this respect was correctly stated by Justice O’Connor’s opinion last Term in Watson v. Fort Worth Bank & Trust, 487 U. S., at 994:

“[W]e note that the plaintiff’s burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer’s work force. The plaintiff must begin by identifying the specific employment practice that is challenged. . . . Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”

Cf. also id., at 1000 (Blackmun, J., concurring in part and concurring in judgment).

Indeed, even the Court of Appeals — whose decision petitioners assault on this score — noted that “it is . . . essential that the practices identified by the cannery workers be linked causally with the demonstrated adverse impact.” 827 F. 2d, at 445. Notwithstanding the Court, of Appeals’ apparent adherence to the proper inquiry, petitioners contend that that court erred by permitting respondents to make out their case by offering “only [one] set of cumulative comparative statistics as evidence of the disparate impact of each and all of [petitioners’ hiring] practices.” Brief for Petitioners 31.

Our disparate-impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities. Just as an employer cannot escape liability under Title VII by demonstrating that, “at the bottom line,” his work force is racially balanced (where particular hiring practices may operate to deprive minorities of employment opportunities), see Connecticut v. Teal, 457 U. S., at *657450, a Title VII plaintiff does not make out a case of disparate impact simply by showing that, “at the bottom line,” there is racial imbalance in the work force. As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff’s prima facie case in a disparate-impact suit under Title VII.

Here, respondents have alleged that several “objective” employment practices (e. g., nepotism, separate hiring channels, rehire preferences), as well as the use of “subjective decision making” to select noncannery workers, have had a disparate impact on nonwhites. Respondents base this claim on statistics that allegedly show a disproportionately low percentage of nonwhites in the at-issue positions. However, even if on remand respondents can show that nonwhites are underrepresented in the at-issue jobs in a manner that is acceptable under the standards set forth in Part II, supra, this alone will not suffice to make out a prima facie case of disparate impact. Respondents will also have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites. To hold otherwise would result in employers being potentially liable for “the myriad of innocent causes that may lead to statistical imbalances in the composition of their work forces.” Watson v. Fort Worth Bank & Trust, supra, at 992.

Some will complain that this specific causation requirement is unduly burdensome on Title VII plaintiffs. But liberal civil discovery rules give plaintiffs broad access to employers’ records in an effort to document their claims. Also, employers falling within the scope of the Uniform Guidelines on Employee Selection Procedures, 29 CFR §1607.1 et seq. (1988), *658are required to “maintain . . . records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group[s].” See § 1607.4(A). This includes records concerning “the individual components of the selection process” where there is a significant disparity in the selection rates of whites and nonwhites. See § 1607.4(C). Plaintiffs as a general matter will have the benefit of these tools to meet their burden of showing a causal link between challenged employment practices and racial imbalances in the work force; respondents presumably took full advantage of these opportunities to build their case before the trial in the District Court was held.10

Consequently, on remand, the courts below are instructed to require, as part of respondents’ prima facie case, a demonstration that specific elements of the petitioners’ hiring process have a significantly disparate impact on non whites.

B

If, on remand, respondents meet the proof burdens outlined above, and establish a prima facie case of disparate impact with respect to any of petitioners’ employment practices, the case will shift to any business justification petitioners offer for their use of these practices. This phase of the disparate-impact case contains two components: first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact. See, e. g., Albemarle Paper Co. v. Moody, 422 U. S., at 425. We consider these two components in turn.

*659(1)

Though we have phrased the query differently in different cases, it is generally well established that at the justification stage of such a disparate-impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. See, e. g., Watson v. Fort Worth Bank & Trust, 487 U. S., at 997-999; New York City Transit Authority v. Beazer, 440 U. S., at 587, n. 31; Griggs v. Duke Power Co., 401 U. S., at 432. The touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be “essential” or “indispensable” to the employer’s business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above. See supra, at 652-653.

In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff. To the extent that the Ninth Circuit held otherwise in its en banc decision in this case, see 810 F. 2d, at 1485-1486, or in the panel’s decision on remand, see 827 F. 2d, at 445, 447 — suggesting that the persuasion burden should shift to petitioners once respondents established a prima facie case of disparate impact — its decisions were erroneous. “[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.'” Watson, supra, at 997 (O’Con-nor, J.) (emphasis added). This rule conforms with the usual method for allocating persuasion and production bur*660dens in the federal courts, see Fed. Rule Evid. 301, and more specifically, it conforms to the rule in disparate-treatment cases that the plaintiff bears the burden of disproving an employer’s assertion that the adverse employment action or practice was based solely on a legitimate neutral consideration. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 256-258 (1981). We acknowledge that some of our earlier decisions can be read as suggesting otherwise. See Watson, supra, at 1006-1008 (Blackmun, J., concurring in part and concurring in judgment). But to the extent that those cases speak of an employer’s “burden of proof” with respect to a legitimate business justification defense, see, e. g., Dothard v. Rawlinson, 433 U. S. 321, 329 (1977), they should have been understood to mean an employer’s production— but not persuasion — burden. Cf., e. g., NLRB v. Transportation Management Corp., 462 U. S. 393, 404, n. 7 (1983). The persuasion burden here must remain with the plaintiff, for it is he who must prove that it was “because of such individual’s race, color,” etc., that he was denied a desired employment opportunity. See 42 U. S. C. §2000e-2(a).

(2)

Finally, if on remand the case reaches this point, and respondents cannot persuade the trier of fact on the question of petitioners’ business necessity defense, respondents may still be able to prevail. To do so, respondents will have to persuade the factfinder that “other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate [hiring] interest[s]”; by so demonstrating, respondents would prove that “[petitioners were] using [their] tests merely as a ‘pretext’ for discrimination.” Albemarle Paper Co., supra, at 425; see also Watson, 487 U. S., at 998 (O’Connor, J.); id., at 1005-1006 (Blackmun, J., concurring in part and concurring in judgment). If respondents, having established a prima facie case, come forward with alternatives to petitioners’ hiring practices that *661reduce the racially disparate impact of practices currently being used, and petitioners refuse to adopt these alternatives, such a refusal would belie a claim by petitioners that their incumbent practices are being employed for nondiscriminatory reasons.

Of course, any alternative practices which respondents offer up in this respect must be equally effective as petitioners’ chosen hiring procedures in achieving petitioners’ legitimate employment goals. Moreover, “[fjactors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer’s legitimate business goals.” Watson, supra, at 998 (O’Connor, J.). “Courts are generally less competent than employers to restructure business practices,” Furnco Construction Corp. v. Waters, 438 U. S. 567, 578 (1978); consequently, the judiciary should proceed with care before mandating that an employer must adopt a plaintiff’s alternative selection or hiring practice in response to a Title VII suit.

IV

For the reasons given above, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun,

dissenting.

I fully concur in Justice Stevens’ analysis of this case. Today a bare majority of the Court takes three major strides backwards in the battle against race discrimination. It reaches out to make last Term’s plurality opinion in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988), the law, thereby upsetting the longstanding distribution of burdens of proof in Title VII disparate-impact cases. It bars the use of internal work force comparisons in the making of a prima *662facie case of discrimination, even where the structure of the industry in question renders any other statistical comparison meaningless. And it requires practice-by-practice statistical proof of causation, even where, as here, such proof would be impossible.

The harshness of these results is well demonstrated by the facts of this case. The salmon industry as described by this record takes us back to a kind of overt and. institutionalized discrimination we have not dealt with in years: a total residential and work environment organized on principles of racial stratification and segregation, which, as Justice Stevens points out, resembles a plantation economy. Post, at 664, n. 4. This industry long has been characterized by a taste for discrimination of the old-fashioned sort: a preference for hiring nonwhites to fill its lowest level positions, on the condition that they stay there. The majority’s legal rulings essentially immunize these practices from attack under a Title VII disparate-impact analysis.

Sadly, this comes as no surprise. One wonders whether the majority still believes that race discrimination — or, more accurately, race discrimination against nonwhites — is a problem in our society, or even remembers that it ever was. Cf. Richmond v. J. A. Croson Co., 488 U. S. 469 (1989).

Justice Stevens,

dissenting.

Fully 18 years ago, this Court unanimously held that Title VII of the Civil Rights Act of 19641 prohibits employment practices that have discriminatory effects as well as those that are intended to discriminate. Griggs v. Duke Power Co., 401 U. S. 424 (1971). Federal courts and agencies consistently have enforced that interpretation, thus promoting our national goal of eliminating barriers that define economic opportunity not by aptitude and ability but by race, color, na*663tional origin, and other traits that are easily identified but utterly irrelevant to one’s qualification for a particular job.2 Regrettably, the Court retreats from these efforts in its review of an interlocutory judgment respecting the “peculiar facts” of this lawsuit.3 Turning a blind eye to the meaning and purpose of Title VII, the majority’s opinion perfunctorily rejects a longstanding rule of law and underestimates the probative value of evidence of a racially stratified work force.4 I cannot join this latest sojourn into judicial activism.

*664I

I would have thought it superfluous to recount at this late date the development of our Title VII jurisprudence, but the majority’s facile treatment of settled law necessitates such a primer. This Court initially considered the meaning of Title VII in Griggs v. Duke Power Co., 401 U. S. 424 (1971), in which a class of utility company employees challenged the conditioning of entry into higher paying jobs upon a high school education or passage of two written tests. Despite evidence that “these two requirements operated to render ineligible a markedly disproportionate number of Negroes,””5 the Court of Appeals had held that be*665cause there was no showing of an intent to discriminate on account of race, there was no Title VII violation. Id., at 429. Chief Justice Burger’s landmark opinion established that an employer may violate the statute even when acting in complete good faith without any invidious intent.6 Focusing on § 703(a)(2),7 he explained:

“The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” 401 U. S., at 429-430.

The opinion in Griggs made it clear that a neutral practice that operates to exclude minorities is nevertheless lawful if it serves a valid business purpose. “The touchstone is business necessity,” the Court stressed. Id., at 431. Because “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation!,] . . . Congress has placed on the employer the burden of showing *666that any given requirement must have a manifest relationship to the employment in question.”'8 Id., at 432 (emphasis in original). Congress has declined to act — as the Court now sees fit — to limit the reach of this “disparate-impact” theory, see Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977); indeed it has extended its application.9 This approval lends added force to the Griggs holding.

The Griggs framework, with its focus on ostensibly neutral qualification standards, proved inapposite for analyzing an individual employee’s claim, brought under § 703(a)(1),10 that an employer intentionally discriminated on account of race.11 *667The means for determining intent absent direct evidence was outlined in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), two opinions written by Justice Powell for unanimous Courts. In such a “disparate-treatment” case, see Teamsters, 431 U. S., at 335, n. 15, the plaintiff’s initial burden, which is “not onerous,” 450 U. S., at 253, is to establish “a prima facie case of racial discrimination,” 411 U. S., at 802; that is, to create a presumption of unlawful discrimination by “eliminat[ing] the most common nondiscriminatory reasons for the plaintiff’s rejection.”12 450 U. S., at 254. “The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” 411 U. S., at 802; see 450 U. S., at 254. Fi*668nally, because “Title VII does not. . . permit [the employer] to use [the employee’s] conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1),” the employee “must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.” 411 U. S., at 804-805; see 450 U. S., at 256. While the burdens of producing evidence thus shift, the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”13 450 U. S.-, at 253.

Decisions of this Court and other federal courts repeatedly have recognized that while the employer’s burden in a disparate-treatment case is simply one of coming forward with evidence of legitimate business purpose, its burden in a disparate-impact case is proof of an affirmative defense of business necessity.14 Although the majority’s opinion blurs *669that distinction, thoughtful reflection on common-law pleading principles clarifies the fundamental differences between the two types of “burdens of proof.”15 In the ordinary civil trial, the plaintiff bears the burden of persuading the trier of fact that the defendant has harmed her. See, e. g., 2 Restatement (Second) of Torts §§328 A, 433 B (1965) (hereinafter Restatement). The defendant may undercut plaintiff’s efforts both by confronting plaintiff’s evidence during her case in chief and by submitting countervailing evidence during its own case.16 But if the plaintiff proves the existence of the harmful act, the defendant can escape liability only by persuading the factfinder that the act was justified or excusable. See, e. g., Restatement §§454-461, 463-467. The plaintiff in turn may try to refute this affirmative defense. Although the burdens of producing evidence regarding the existence of harm or excuse thus shift between the plaintiff *670and the defendant, the burden of proving either proposition remains throughout on the party asserting it.

In a disparate-treatment case there is no “discrimination” within the meaning of Title VII unless the employer intentionally treated the employee unfairly because of race. Therefore, the employee retains the burden of proving the existence of intent at all times. If there is direct evidence of intent, the employee may have little difficulty persuading the factfinder that discrimination has occurred. But in the likelier event that intent has to be established by inference, the employee may resort to the McDonnell!Burdine inquiry. In either instance, the employer may undermine the employee’s evidence but has no independent burden of persuasion.

In contrast, intent plays no role in the disparate-impact inquiry. The question, rather, is whether an employment practice has a significant, adverse effect on an identifiable class of workers — regardless of the cause or motive for the practice. The employer may attempt to contradict the factual basis for this effect; that is, to prevent the employee from establishing a prima facie case. But when an employer is faced with sufficient proof of disparate impact, its only recourse is to justify the practice by explaining why it is necessary to the operation of business. Such a justification is a classic example of an affirmative defense.17

*671Failing to explore the interplay between these distinct orders of proof, the Court announces that our frequent statements that the employer shoulders the burden of proof respecting business necessity “should have been understood to mean an employer’s production — but not persuasion — burden.”18 Ante, at 660. Our opinions always have emphasized that in a disparate-impact case the employer’s burden is weighty. “The touchstone,” the Court said in Griggs, “is business necessity.” 401 U. S., at 431. Later, we held that prison administrators had failed to “rebu[t] the prima facie case of discrimination by showing that the height and weight requirements are . . . essential to effective job performance,” Dothard v. Rawlinson, 433 U. S. 321, 331 (1977). Cf. n. 14, supra. I am thus astonished to read that the “touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. . . . [TJhere is no requirement that the challenged practice be . . . ‘essential,’” ante, at 659. This casual — almost summary — rejec*672tion of the statutory construction that developed in the wake of Griggs is most disturbing. I have always believed that the Griggs opinion correctly reflected the intent of the Congress that enacted Title VII. Even if I were not so persuaded, I could not join a rejection of a consistent interpretation of a federal statute. Congress frequently revisits this statutory scheme and can readily correct our mistakes if we misread its meaning. Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 644 (1987) (Stevens, J., concurring); Runyon v. McCrary, 427 U. S. 160, 190-192 (1976) (Stevens, J., concurring). See McNally v. United States, 483 U. S. 350, 376 (1987) (Stevens, J., dissenting); Commissioner v. Fink, 483 U. S. 89, 102-105 (1987) (Stevens, J., dissenting); see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 486 (1989) (Stevens, J., dissenting).

Also troubling is the Court’s apparent redefinition of the employees’ burden of proof in a disparate-impact case. No prima facie case will be made, it declares, unless the employees “‘isolat[e] and identify] the specific employment practices that are allegedly responsible for any observed statistical disparities.’” Ante, at 656 (quoting Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 994 (1988) (plurality opinion)). This additional proof requirement is unwarranted.19 It is elementary that a plaintiff cannot recover upon proof of injury alone; rather, the plaintiff must connect the injury to an act of the defendant in order to establish prima facie that the defendant is liable. E. g., Restatement § 430. Although the causal link must have substance, the act *673need not constitute the sole or primary cause of the harm. §§431-433; cf. Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). Thus in a disparate-impact case, proof of numerous questionable employment practices ought to fortify an employee’s assertion that the practices caused racial disparities.20 Ordinary principles of fairness require that Title VII actions be tried like “any lawsuit.” Cf. U. S. Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 714, n. 3 (1983). The changes the majority makes today, tipping the scales in favor of employers, are not faithful to those principles.

II

Petitioners seek reversal of the Court of Appeals and dismissal of this suit on the ground that respondents’ statistical evidence failed to prove a prima facie case of discrimination. Brief for Petitioners 48. The District Court concluded “there were ‘significant disparities’ ” between the racial composition of the cannery workers and the noncannery workers, but it “made no precise numerical findings” on this and other critical points. See ante, at 650, n. 5. Given this dearth of findings and the Court’s newly articulated preference for individualized proof of causation, it would be manifestly unfair to consider respondents’ evidence in the aggregate and deem it insufficient. Thus the Court properly rejects petitioners’ request for a final judgment and remands for further determination of the strength of respondents’ prima facie case. See ante, at 655. Even at this juncture, however, I believe that respondents’ evidence deserves greater credit than the majority allows.

*674Statistical evidence of discrimination should compare the racial composition of employees in disputed jobs to that ‘“of the qualified . . . population in the relevant labor market.’” Ante, at 650 (quoting Hazelwood School Dist. v. United States, 433 U. S. 299, 308 (1977)). That statement leaves open the definition of the qualified population and the relevant labor market. Our previous opinions, e. g., New York City Transit Authority v. Beazer, 440 U. S. 568, 584-586 (1979); Dothard v. Rawlinson, 433 U. S., at 329-330; Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975); Griggs, 401 U. S., at 426, 430, n. 6, demonstrate that in reviewing statistical evidence, a court should not strive for numerical exactitude at the expense of the needs of the particular case.

The District Court’s findings of fact depict a unique industry. Canneries often are located in remote, sparsely populated areas of Alaska. 34 EPD ¶ 34,437, p. 38,825 (WD Wash. 1983). Most jobs are seasonal, with the season’s length and the canneries’ personnel needs varying not just year to year but day to day. Ibid. To fill their employment requirements, petitioners must recruit and transport many cannery workers and noncannery workers from States in the Pacific Northwest. Id., at 33,828. Most cannery workers come from a union local based outside Alaska or from Native villages near the canneries. Ibid. Employees in the non-cannery positions — the positions that are “at issue” — learn of openings by word of mouth; the jobs seldom are posted or advertised, and there is no promotion to noncannery jobs from within the cannery workers’ ranks. Id., at 33,827-33,828.

In general, the District Court found the at-issue jobs to require “skills,” ranging from English literacy, typing, and “ability to use seam micrometers, gauges, and mechanic’s hand tools” to “good health” and a driver’s license.21 Id., at *67533,833-33,834. All cannery workers’ jobs, like a handful of at-issue positions, are unskilled, and the court found that the intensity of the work during canning season precludes on-the-job training for skilled noncannery positions. Id., at 33,825. It made no findings regarding the extent to which the cannery workers already are qualified for at-issue jobs: individual plaintiffs testified persuasively that they were fully qualified for such jobs,22 but the court neither credited nor discredited this testimony. Although there are no findings concerning wage differentials, the parties seem to agree that wages for cannery workers are lower than those for non-cannery workers, skilled or unskilled. The District Court found that “nearly all” cannery workers are non white, while the percentage of nonwhites employed in the entire Alaska salmon canning industry “has stabilized at about 47% to 50%.” Id., at 33,829. The precise stratification of the work force is not described in the findings, but the parties seem to agree that the noncannery jobs are predominantly held by whites.

Petitioners contend that the relevant labor market in this case is the general population of the “ ‘external’ labor market for the jobs at issue.” Brief for Petitioners 17. While they would rely on the District Court’s findings in this regard, those findings are ambiguous. At one point the District Court specifies “Alaska, the Pacific Northwest, and California” as “the geographical region from which [petitioners] draw their employees,” but its next finding refers to “this relevant geographical area for cannery worker, laborer, and other nonskilled jobs,” 34 EPD ¶ 34,437, p. 33,828. There *676is no express finding of the relevant labor market for non-cannery jobs.

Even assuming that the District Court properly defined the relevant geographical area, its apparent assumption that the population in that area constituted the “available labor supply,” ibid., is not adequately founded. An undisputed requirement for employment either as a cannery or noncannery worker is availability for seasonal employment in the far reaches of Alaska. Many noncannery workers, furthermore, must be available for preseason work. Id., at 33,829, 33,833-33,834. Yet the record does not identify the portion of the general population in Alaska, California, and the Pacific Northwest that would accept this type of employment.23 This deficiency respecting a crucial job qualification diminishes the usefulness of petitioners’ statistical evidence. In contrast, respondents’ evidence, comparing racial compositions within the work force, identifies a pool of workers willing to work during the relevant times and familiar with the workings of the industry. Surely this is more probative than the untailored general population statistics on which petitioners focus. Cf. Hazelwood, 433 U. S., at 308, n. 13; Teamsters, 431 U. S., at 339-340, n. 20.

*677Evidence that virtually all the employees in the major categories of at-issue jobs were white,24 whereas about two-thirds of the cannery workers were nonwhite,25 may not by itself suffice to establish a prima facie case of discrimination.26 But such evidence of racial stratification puts the specific employment practices challenged by respondents into perspective. Petitioners recruit employees for at-issue jobs from outside the work force rather than from lower paying, overwhelmingly nonwhite, cannery worker positions. 34 EPD ¶34,437, p. 33,828-33,829. Information about availability of at-issue positions is conducted by word of mouth;27 therefore, *678the maintenance of housing and mess halls that separate the largely white noncannery work force from the cannery workers, id., at 33,836, 33,843-33,844, coupled with the tendency toward nepotistic hiring,28 are obvious barriers to employment opportunities for nonwhites. Putting to one side the issue of business justifications, it would be quite wrong to conclude that these practices have no discriminatory consequence.29 Thus I agree with the Court of-Appeals, 827 F. 2d 439, 444-445 (CA9 1987), that when the District Court makes the additional findings prescribed today, it should treat the evidence of racial stratification in the work force as a significant element of respondents’ prima facie case.

Ill

The majority’s opinion begins with recognition of the settled rule that that “a facially neutral employment practice may be deemed violative of Title VII without evidence of the employer’s subjective intent to discriminate that is required in a‘disparate-treatment’case.” Ante, at 645-646. It then departs from the body of law engendered by this disparate-*679impact theory, reformulating the order of proof and the weight of the parties’ burdens. Why the Court undertakes these unwise changes in elementary and eminently fair rules is a mystery to me.

I respectfully dissent.

POPE, Circuit Judge.

Appellant was convicted of treason against the United States. The indictment charged that she adhered to the enemies *348of the United States giving them aid and comfort by working as a radio speaker, announcer, script writer and broadcaster for the Imperial Japanese Government and the Broadcasting Corporation of Japan, between November 1, 1943, and August 13, 1945; that such activities were in connection with the broadcasting of programs specially beamed and directed to the American Armed Forces in the Pacific Ocean area; and, that appellant’s activities were intended to destroy the confidence of the members of the Armed Forces of the United States and their allies in the war effort, to undermine and lower American and Allied military morale, to create nostalgia in their minds, to create war weariness among the members of such armed forces, to discourage them, and to impair the capacity of the United States to wage war against its enemies. The indictment alleged the commission of eight overt acts. Appellant was found guilty of the commission of overt act No. 6 only, which in the language of the indictment, was: “That on a day during October, 1944, the exact date being to the Grand Jurors unknown, said defendant, at Tokyo, Japan, in a broadcasting studio of the Broadcasting Corporation of Japan, did speak into a microphone concerning the loss of ships.”

- Upon this appeal counsel for appellant have filed briefs asserting the commission of numerous errors on the part of the trial court. Their briefs, however, have overlooked this Court’s Rule 20d relating to the requirement of a specification of errors and the manner in which the same shall be stated. The failure to comply with this rule has added materially to the task of the court in attempting to evolve from very lengthy briefs the precise contentions made by the appellant, and we take this occasion tó call the attention of the members of the Bar of this Court to the fact that the rule is designed to clarify counsel’s presentation of an appeal as well as to lighten the labors of the court.

Appellant’s contentions fall into two categories: the first, it is asserted, call for a judgment that the defendant-appellant must be discharged; the second relate to alleged errors which would require a new trial.

1. Whether the applicable clause of the Act relating to treason was unconstitutional as applied to appellant.

At the outset appellant contends that those provisions of the treason statute, 18 U.S.C.A. § 1, 1946 Ed.1 under which she was convicted were void and wanting in due process under the Fifth Amendment by reason of the co-existence of those provisions of the Nationality Act of 1940, 8 U.S. C.A. § 501 et seq,,. which repealed the former expressed prohibition against expatriation in time of war. In consequence of this, says appellant, the law provided that a person in like position as appellant, might lawfully have been naturalized to an enemy belligerent, and that under the Government’s naturalization policy the appellant could, as many other persons of Japanese ancestry did, have transferred allegiance to Japan. Appellant says that a person desiring to adhere to the enemy and give it aid and comfort, and wishing 'to do a thorough-going job of it, could shed his allegiance to the United States under existing law and thus engage in adherence, aid and comfort to the enemy with impunity. On the other hand, says appellant, she is charged with treason for having done no differently than the person who transferred allegiance. It is said that this constitutes an unreasonable and arbitrary discrimination; that it operates as a denial of equal protection of the law to such a degree as to be a denial of due process under the Fifth Amendment.

Putting the argument in a slightly different form, appellant says that in permitting wartime naturalization to an enemy belligerent, the United States authorized adherence, aid and comfort to the enemy under certain circumstances. It is said that by permitting adherence to Japan after naturalization, the Japanese naturalization order is treated as the equivalent of a license.

In other words, it is said one person adheres to the enemy giving it aid and comfort without any consequences under the *349treason act because he has a Japanese naturalization order which is in effect a license to adhere to the enemy. Another person, without such an order, is therefore engaged in no more than an unlicensed adherence to the enemy. It is said that punishment of treason cannot be limited merely to unlicensed adherence, aid and comfort because Article III, Section 3, of the Constitution, defining treason provides that it “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” This clause, it is said, means that treason shall consist only of adherence, aid and comfort, as such. Limiting punishment for treason to unlicensed adherence, aid and comfort, means adding limitations and qualifications not contemplated by the Constitutional definition of treason.

We are unable to perceive any sound basis for such an argument. The reference to licensed and unlicensed adherence to the enemy is, we think, but a play on words. The classification here, of which appellant complains, is none other than the ancient distinction drawn between those who do and those who do not owe allegiance.2

Whether the provisions of the Nationality Act which appellant thinks work unfairly represent a wise or sound legislative policy is a problem for Congress, not for us. We are unable to observe anything unreasonable or arbitrary about preserving the ancient distinction between those who do and those who do not owe allegiance regardless of whether the transfer of allegiance could be made in wartime or not. Reasons both historical and logical exist for the distinction and we find no want of due process here.

2. The question of a speedy trial.

Appellant asserts that she was denied the speedy trial required by the Sixth Amendment and that such denial requires her discharge. Her argument in this respect is predicated upon the circumstance that after the defeat of Japan the occupying military force caused appellant’s arrest and internment for the period of approximately one year from October 17, 1945, until October 25, 1946. This arrest was pursuant to an order of the Commander-in-Chief of the Armed Forces of the Pacific authorizing the Commanding Generals of the occupying forces to apprehend and detain citizens and nationals of the United States who were suspected of treason and persons who might constitute a threat to the security of the military forces occupying Japan.

On May 7, 1946, a military order was made to the effect that the appellant was not considered subject to a military trial, but that she was being held until the results of the military investigations were transmitted to the Department of Justice. Immediately prior to her release on October 25, 1946, the War Department advised the Army authorities in Japan that the “Department of Justice no longer desires Iva D’Aquino be retained in custody” and her release followed. Thereafter, on August 26, 1948, the appellant was arrested at Tokyo pursuant to a warrant of arrest issued under the authority of the Supreme Command for the Allied Power. It was issued upon the complaint of the Department of Justice. She was brought to the United States under guard of military police acting under orders from General Headquarters Far East Command who took her on board a United States Army Transport which arrived in San Francisco on September 25, 1948, when she was- delivered to special police of the Federal Bureau of Investigation. She was arraigned on the same day in San Francisco and indicted on October 8, following.

There is nothing in the record to disclose failure on the part of the United States to prosecute the charge against appellant with reasonable promptness following the date of her arrest on August 26, 1948. The record is barren of any demand for a speedy trial. Danziger v. United States, 9 Cir., 161 F.2d 299, 301, certiorari *350denied 332 U.S. 769, 68 S.Ct. 81, 92 L.Ed. 354. Appellant obtained an order permitting one of her attorneys to go to Japan for the purpose of taking depositions at Government expense and she obtained a continuance of the trial date to permit the completion of that task. Under these circumstances there cannot be said to be a denial of a speedy trial. Daniels v. United States, 9 Cir., 17 F.2d 339, 344, certiorari denied Appell v. United States, 274 U.S. 744, 47 S.Ct. 591, 71 L.Ed. 1325.

Appellant however says that her military detention in Japan in the year following October, 1945, demonstrates that she was denied a speedy trial. We shall have occasion to refer to the character of the detention later in this opinion, but wholly apart from whether that detention was or was not in accordance with law, it has no bearing whatever upon the question of her right to a speedy trial, which is one that arises after a formal complaint is lodged against the defendant in a criminal case.

In this connection appellant makes an alternative contention based upon this prior imprisonment, — that such prior imprisonment constitutes former jeopardy. This contention obviously is without any basis whatever. McCarthy v. Zerbst, 10 Cir., 85 F.2d 640, certiorari denied 299 U.S. 610, 57 S.Ct. 313, 81 L.Ed. 450; Wainer v. United States, 7 Cir., 82 F.2d 305, affirmed 299 U.S. 292, 57 S.Ct. 79, 81 L.Ed. 58; Dixon v. United States, 8 Cir., 7 F.2d 818; United States v. Rossi, 9 Cir., 39 F.2d 432.

3. Loss of scripts and records.

Appellant asserts that this year’s imprisonment in Japan must be considered in conjunction with the fact that certain scripts, records, and copies of appellant’s broadcasts were destroyed or lost before the date of the trial, and that under -all these circumstances it is a denial of due process for the United States to prosecute her when such scripts and records were unavailable. Appellant contends that under the doctrine of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, a deliberate suppression of the evidence on the part of the prosecution is a deni-al of due process. She contends that such is the situation here where the Government knowingly prosecuted a case upon incomplete evidence. She asserts that there is good reason to -believe that the missing evidence would be favorable to her and that the evidence became unavailable because of the Government’s own •acts since the Government originally had a complete set of the records and copies of the broadcasts compiled in its various monitoring stations.

We think there is no basis for this contention on the part of appellant. There is no showing that the missing scripts and records would have been favorable to the defense or that the Government suppressed any of such evidence.3 We find nothing in *351the record to warrant an assumption that the prosecutor did not produce all such scripts and records as were available. Further, there is nothing to negative the Government’s contention that the monitoring station records previously kept had been destroyed or lost in the process of the routine closing of such stations.

4. The “posse comitatus” Act.

The jurisdiction of the court below was based upon 18 U.S.C.A. § 3238 which provides: “The trial of all offenses begun or committed upon the high seas, or elsewhere out of the jurisdiction of any particular State or district, shall be in the district where the offender is found, or into which he is first brought.” Appellant asserts that the court below was without such jurisdiction in that she was brought from Japan to San Francisco in an illegal and unlawful manner by the military authorities in violation of the so-called “posse comitatus” Act, 20 Stat. 152, 10 U.S.C.A. § 15. This is the same argument that was made unsuccessfully in Chandler v. United States, 1 Cir., 171 F.2d 921, 936; and in Gillars v. United States, 87 U.S.App.D.C. 16, 182 F.2d 962, 972, 973. For the reasons stated in those cases, we hold this argument without merit.

5. Question of the sufficiency of the evidence.

Appellant argues that we should direct a judgment of acquittal on the ground that the evidence was insufficient to sustain a conviction. With respect to this, the record discloses that at the time of the commission of overt act No. 6, of which appellant was found guilty, she was unquestionably a citizen of the United States. She was born *352and educated in the United States and a few months prior to the outbreak of the war with Japan she had gone to Japan for the purpose of studying medicine. Previously she had received a college degree and had taken postgraduate work in a California university. Shortly before the outbreak of the war she applied for a passport to return to the United States and was advised by the State Department that the passport was denied on the ground that -her citizenship was not proven (she had traveled to Japan upon a “certificate of identification”). She endeavored to get clearance to board a ship scheduled to sail for the United States on December 2, 1941, but was unsuccessful. Early in 1942 she applied for evacuation through the Swiss Legation but encountering difficulties in procuring certification of her United States citizenship she abandoned this -attempt. Thereafter, and throughout her period of residence in Japan and while the war continued, she was frequently invited to become a Japanese citizen but steadfastly refused. In' the spring of 1945 she married D’Aquino, a Portuguese citizen. The marriage was subsequent to the date of the commission of the overt act No. 6.

After having been employed in various jobs in 1942 and in the early part of 1943, appellant sought employment at Radio Tokyo and began her work as a typist for the Broadcasting Corporation of Japan in the fail of 1943. Shortly thereafter she began her broadcast work for this corporation which was under the control of the Japanese Government. There is evidence in the record that when the appellant took her voice test and accepted employment -as an announcer and broadcaster for Radio Tokyo she knew that her work was to be concerned with a program known as “Zero Hour” which was to be beamed and directed .specially to Allied soldiers in the Pacific. She was told and understood that the program would consist of music and entertainment designed to procure a listening audience among Allied soldiers, and that there was to be interspersed news and commentaries containing propaganda which was to be used as -an instrument of psychological warfare. Their object was to cause the Allied troops to become homesick, tired and disgusted with the war.

Appellant participated in some 340 programs on the Zero Hour. She announced herself as “Ann” or “Orphan Ann”. From time to time she attended meetings of the participants in the Zero Hour program where the Japanese Army officers in command of the enterprise advised the persons present of the strategic importance of the program and urged continued efforts by the participants.

The overt act No. 6 was testified to' by the requisite number of witnesses who observed and listened to the broadcast in question. One of them was a participant in the same Zero Hour program. He told the appellant of a release from Japanese General Headquarters giving the American ship losses in one of the Leyte Gulf battles and requested appellant to allude to those losses. She proceeded, as this witness and another testified, to type a script about the loss of ships. That evening, when appellant was present in the studio, the news announcer broadcast that the Americans had lost many ships in the battle of Leyte Gulf. Thereupon appellant was introduced on the radio and proceeded to say in substance: “Now you fellows have lost all your ships. You really are orphans of the Pacific. Now how do you think you will ever get home ?”

It is true that the appellant’s version of her role as a broadcaster was substantially different from that which we have here summarized from the testimony of the Government witnesses. According to appellant’s version of the matter, the programs were exclusively entertainment and for that purpose only, she having been informed by the officer in command that the time for propaganda would not arrive until the Japanese were having more military and naval successes. Some of appellant’s witnesses testified that they were responsible for having her brought into the Zero Hour program. These persons were American prisoners of war who testified that they had been coerced into participation in this program. They testified that what they were up to was a sabotaging of the program insofar as it was designed to be propaganda to American soldiers, that they managed to *353inject in the program many reports of American prisoners of war and messages from them, and that the appellant cooperated with them in their efforts to frustrate the purposes of the Japanese military operating through the broadcasting corporation to destroy the morale of the American soldiers.4

Whether appellant’s version of her activities in broadcasting should be accepted rather than that disclosed by the Government witnesses was, of course, a question for the jury. Insofar as it is contended that the program was merely one to entertain the American troops, such a version of the evidence would, we have no doubt, tax the credulity of a jury who would be hard put to imagine the Japanese military spending time and money solely for that purpose.

Appellant’s counsel do not argue that we must accept her version of the testimony. They make the rather narrow point that other activities of the appellant, concerning which witnesses on both sides testified, were such as to require a conclusion that there existed reasonable doubt of appellant’s intention to adhere to the enemy and reasonable doubt of her treasonable intent.

These activities were certain acts of kindness and assistance which appellant rendered to Allied prisoners of war, some of whom were working with her on Radio Tokyo, and some of whom were imprisoned at Camp Bunka. The testimony was that she brought food, cigarettes, medicine, a blanket and short wave news of Allied successes to these prisoners, and that she did this frequently at substantial risk to herself.

We are unable to perceive the force of appellant’s argument in this respect. A general treasonable intent to betray the United States through the impairing of its war effort in the Pacific, might well accompany a particular feeling of compassion toward individual prisoners and sympathy for the plight in which they found themselves. It is were psychologically impossible for a person engaged in a treasonable enterprise simultaneously to furnish cigarettes and food to individual prisoners, appellant’s argument upon this point might have some weight. We think that the question of the effect of these acts of kindness upon appellant’s intent was one for the jury. Certainly, under the circumstances here, the court cannot declare that there must be a reasonable doubt in a reasonable mind and hence direct a verdict. The question of the existence of a reasonable doubt was for the jury. Cf. Craig v. United States, 9 Cir., 81 F.8d 816, 827, certiorari denied 298 U.S. 690, 56 S.Ct. 959, 80 L.Ed. 1408.

*3546. Admissibility of so-called “confessions”.

During the trial, a number of statements made to various persons by appellant were received in evidence and appellant contends that the court erred in admitting such statements for the reason that they were confessions and received as such contrary to the rules stated in Bram v. United States, 168 U.S. 532,18 S.Ct. 183, 42 L.Ed. 568, and in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, as restated in Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. It is asserted that there was wanting sufficient proof that the statements were voluntary within the meaning of the rule in the Bram case; in some cases the statements were inadmissible because they were made at a time when appellant was being held under arrest and prior to arraignment upon the charge subsequently made against her; and further, that the statements made while she was held in custody were inadmissible under the .rule in the McNabb case because the Government is attempting to make use of the fruits of its own wrong.

One of the written statements thus given during appellant’s confinement or internment in Japan was the result of an interrogation by an agent of the Federal Bureau of Investigation on April 29 — 30, 1946, in the visitors’ room at Sugamo Prison where appellant was then confined. We have previously alluded to this period of imprisonment and it will be noted that on the dates mentioned she had been confined for a period of approximately six months. Appellant argues that under the McNabb and Upshaw doctrine, this statement was inadmissible.5

An application of the McNabb-Upshaw rule to the facts of this case suggests some problems which we think need not be here resolved. The rule, predicated upon a violation of the procedural requirements of 18 U.S.C.A. § 595, and its successor Rule 5(a) F.R.Crim.P., 18 U.S.C.A., is obviously a sanction enforced, pursuant to the supervisory power of the Supreme Court against civil officers making arrests for criminal offenses. Since Rule 5(a) could have no application to the conduct of the military forces occupying Japan, the question of application of this sanction in this case is not too clear. Appellant asserts that Article 70 of the Articles of War6 places a similar procedural burden upon military forces in this case. It is our opinion, however, that the appellant was not within any category of persons subject to the Articles of War; that she was neither a retainer to the camp nor a person accompanying or serving with the Armies. Articles of War, Article 2, 10 U.S.C.A. 1473; cf. In re Yamashita, 327 U.S. 1, 20, 66 S.Ct. 340, 90 L.Ed. 499.

The McNabb and Upshaw cases have no application here for the reason that appellant’s detention was legal and authorized by the laws of war. “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession is one of the incidents of war, and flows directly from the right to conquer. We therefore do not look to the Constitution or political institutions of the conquerer for authority to establish a government for the territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited.” Dooley v. United States, 182 U.S. 222, 230, 231, 21 S.Ct. 762, 765, 45 L.Ed. 1074, quoting Halleck on International Law, Vol. II, p. 444, cited in Gillars, supra, 182 F.2d at page 972.

It is apparent that at the time of appellant’s interrogation by the agent of the Federal Bureau of Investigation her detention was pursuant to the exercise of military power. Appellant was a resident of a country occupied by the United States military forces who had exacted an unconditional surrender from the enemy. The' cessation of actual hostilities had occurred *355only slightly more than one month before appellant was taken into custody. We take judicial notice that the situation then existing in Japan was somewhat parallel to that in Austria as described in United States v. Best, D.C., 76 F.Supp. 857, 863. While open warfare had ceased, the security of the occupation forcfes was a continuing problem confronting the military commanders. Appellant was a suspected traitor. That she might be capable of fomenting disorder among the Japanese population then being subjected to the yoke of military occupation, and of inciting discontent among the troops of the oc-cuping powers was a sufficient basis for the military to take the precautionary measure of interning appellant. The paramount interest of the occupation force is its own security. We see no abuse of military discretion in the protection of that interest.7 We hold that the confinement was within the constitutional sanction of the war power ; the restraint was legal, and the admission in question was not the fruit of an unlawful detention and was properly received, in evidence.

Another writing obtained while appellant was interned in this manner was a Japanese yen note signed “Iva I. Toguri ‘Tokyo Rose’”. It is claimed that this amounted to a confession and was not receivable for the same reasons urged with respect to the statement made to the Federal Bureau of Investigation previously mentioned. Not only do we consider this objection groundless for the reasons stated with respect to that statement, but it is apparent that the signed yen note was not a confession nor was it introduced as such. It was introduced early in the trial for the purpose of proving the appellant’s signature. It is contended that the document was received for the purpose of establishing her admission that she was “Tokyo Bose”. There was no attempt at the trial to identify the appellant as “Tokyo Rose”, as all of the evidence disclosed that she broadcast as “Ann” or “Orphan Ann”. The inclusion of the reference to Tokyo Rose in the signature on the yen note could under no circumstance be regarded as prejudicial to the appellant.

It is contended that wholly apart from the McNabb-Upshaw rule these and other so-called confessions were inadmissible because of a failure to establish their voluntary character.8 The necessary foundation of preliminary proof of voluntary character of these statements was laid in each case. Thus the FBI officer previously mentioned, testified that he identified himself to appellant, advised her of her right to counsel, and of her right to decline to talk to him, and testified that-no threats or promises of any kind were made to her. The circumstances of the interviews, which took place over a two day period, negative any inference of oppression or anything else inconsistent with the voluntary character of the statement. The mere fact of a lawful imprisonment does not render such a confession inadmissible. LaMoore v. United States, 9 Cir., 180 F.2d 49.

The other so-called confessions which appellant asserts were erroneously admitted were obtained at times when appellant was not interned or under arrest. She gave an oral interview to the military personnel assigned to the Army publication “Yank” magazine. Appellant says that the statement was coerced because she was interviewed by uniformed soldiers who told her that she “owed it” to the publication, and that giving one interview to a large number of newspaper correspondents at a single time would permit her to avoid being “badgered” by individual correspondents. This interview preceded by two days an interrogation by two members of the Counter Intelligence Corps and it is asserted that the same coercion affected both interviews.

These statements were properly admitted in view of the fact that appellant *356voluntarily attended in each case, was accompanied by her husband, and made her statement without any threats or coercion whatsoever. No factor is present which would tend to characterize these statements as involuntary.

Equally without ground is appellant’s objection to the evidence of her interview with a war correspondent, Clark Lee. The interview occurred before appellant’s internment. Later, on March 26, 1948, after she had been released from military custody, she signed the notes of the interview. She claims that she was coerced in both instances. The only circumstance suggesting coercion is the fact that when the interviewwas given the door was locked to keep other rival correspondents out of the rooms. At the time of the original interview appellant was attended by her husband and a friend. The interview lasted for about five hours with interruptions for “tea, cigarettes and things of that sort”. Two newspaper correspondents were present; they were in uniform and there were firearms in the room. The evidence shows no force or threats of force, no physical coercion of any kind, and no circumstances which would be unusual in a case.where a newspaperman has purchased an interview which he is attempting to keep exclusive.

At the time the notes were signed by appellant, an army vehicle was sent to bring her to General Headquarters for this purpose. Appellant was informed by an official of the Department of Justice who was then present that she most probably would be prosecuted for treason and that she did not have to make any statements.

The appellant did testify that Brundidge, one of the newspaper correspondents, told her on this last occasion when she signed the notes, that her opportunity to return to the United States would be enhanced if she signed them. Brundidge was not a “person in authority”.9 That there was no promise of leniency is apparent because of the statement simultaneously made that she probably would be prosecuted for treason.

7. Instruction relating to voluntariness of so-called confessions.

•Related to the matters just discussed is the appellant’s contention that the court should have permitted the jury itself to pass upon the question whether the so-called confessions were voluntary or involuntary with an instruction that if they found them to be involuntary they should disregard, them.

In view of the want of any substantial evidence tending to show that the confessions or any of them were involuntary, it would appear that there was no need for such an instruction. Stillman v. United States, 9 Cir., 177 F.2d 607, 619; Lewis v. United States, 9 Cir., 74 F.2d 173, 178. In any event, in order to predicate error upon the failure of the court to submit such a question to the jury, appellant must under Rule 30, F.R.Crim.P., point out the claimed omission from the charge to which she objects before the jury retired. The rule requires that such an appellant state “distinctly the matter to which he objects and the grounds of his objection.”

At the time when counsel for appellant were given the opportunity, called for by Rule 30, to make their objection to the court’s charge, they did not call the court’s attention to the specific point now argued, and failed to state in so many words that they requested the court to submit the question of the voluntariness of the confessions to the jury. What they said was simply “we except to the refusal of each of the following numbered instructions on the ground that each of the instructions states the correct law and is applicable to the evidence and not covered by other instructions.” This statement was followed by the enumeration of 128 separate numbers identifying instructions that had been requested by appellant. Included in this enumeration was appellant’s request*357ed instruction No. 88.10 If we assume that this wholesale blanket method of noting objections to the court’s charge was a sufficient compliance with Rule 30, an examination of the requested instruction 88 discloses that it was entirely too broad, for it was not directed to the alleged confessions, but referred to “various alleged statements by defendant as well as records of her voice test.” On the face of it, the requested instruction would comprehend all statements of the defendant of every kind whatever. It would comprehend statements made by her during the broadcast. It would include statements made by her not by way of confession or admission but which were received in evidence for their bearing as circumstantial evidence upon her intent. By its terms the instruction would apply to every oral or written statement attributed to the appellant by any witness. In such form it was properly rejected.

8. Requested instruction concerning proof of corpus delicti.

Another instruction requested by appellant and which bore upon the appellant’s admissions or so-called confessions, was defendant’s proposed instruction No. 30a as follows: “You cannot consider the defendant’s admissions upon any of the issues of (1) citizenship (2) aid and comfort or (3) intention unless you first find that the Government has introduced other credible corroborative evidence on the same issue. Pearlman v. U. S., 10 F.2d 460, 461, 462 (CCA 9). Goff v. U. S., 257 F. 294 (CCA 8).” We think there was no occasion for giving any such instruction here where there was substantial proof of the corpus delicti wholly apart from the admissions or confessions. The reference to the admissions relative to citizenship was erroneous for some of the appellant’s admissions reíative to her citizenship were made prior to the commission of the alleged offense. Such admissions need not be corroborated. Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876. This court has held that it is unnecessary to make full proof of the corpus delicti independently of the defendant’s confessions. Wynkoop v. United States, 9 Cir., 22 F.2d 799; Wiggins v. United States, 9 Cir., 64 F.2d 950, certiorari denied 290 U.S. 657, 54 S.Ct. 72, 78 L.Ed. 569. The corroborative evidence need not independently establish the corpus delicti beyond a reasonable doubt. It is sufficient if the corroborative evidence, when considered in connection with the confession or admission, satisfied the jury beyond a reasonable doubt that the offense was in fact committed. In Pearlman v. United States, 9 Cir., 10 F.2d 460, this court indicated that the usual instructions on presumption of innocence and reasonable doubt adequately covered all that the jury need be told upon this question of sufficiency of proof of the corpus delicti. We find no error in the court’s failure to give the requested instruction mentioned.

9. Questions relating to duress.

Appellant asserts that the trial court committed numerous errors relating to the claimed defense of duress or coercion. She argues that some of the instructions given upon this subject were erroneous; that other instructions requested by her should have been given, and that the court erred in excluding numerous items of evidence which were offered in support of this defense. The court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity.11 The instruction included the state*358ment that “in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one’s property or remote bodily harm do not excuse an offense.” It will be noted that the court’s instruction was almost identical to that approved in Gillars v. United States, supra, 182 F.2d at page 976, note 14. The charge was a correct statement of the law upon this subject. United States v. Vigol, 2 Dall 346, 2 U.S. 346, 1 L.Ed. 409; Respublica v. McCarty, 2 Dall 86, 2 U.S. 86, 1 L.Ed. 300; Shannon v. United States, 10 Cir., 76 F.2d 490; R.I. Recreation Center v. Ætna Casualty & Surety Co., 1 Cir., 177 F.2d 603, 12 A.L.R.2d 230.

Appellant seriously contends that however correct the instruction might be in an ordinary case where a person accused of crime committed in his own country claims to have been coerced by an individual, the instruction of the court was in error particularly in its requirement of apprehension of immediate and impending death, or of immediate bodily harm, in a case where the accused person was in an enemy country, unable to get protection *359from the United States and where the compulsion is on the part of the enemy government itself. The contention is that under these circumstances the requirement of “immediacy” in the court’s instructions was error. Appellant makes her point by quoting from East’s Pleas of the Crown, (1806, pages 70 to 71), as follows: “But if the joining with rebels be from fear of. present death, and while the party is under actual force, such fear and compulsion will excuse him. It is incumbent, however, on the party setting up this defence to give satisfactory proof that the compulsion continued during all the time that he staid with the rebels. It may perhaps be impossible to account for every day, week, or month; and therefore it may be sufficient to excuse Mm if he can prove an original force upon him, that he in earnest attempted to escape and was prevented, or that he was so narrowly watched, or the passes so guarded, that an attempt to escape or to refuse his assistance would have been attended with great difficulty and danger; and if the circumstances will admit of it, that he quitted the service as soon as he could: so that upon the whole he may fairly be presumed to have continued amongst them agam.st his will, though not constantly under an actual force or fear of immediate death.” (Italics supplied by appellant.)

However appropriate such quoted language might be in the case of a person impressed into military or naval service of the enemy, we think that under the circumstances here there was no occasion for departing from the ordinary rules applicable to the defense of duress and coercion. We know of no rule that would permit one who is under the protection of an enemy to claim immunity from prosecution for treason merely by setting up a claim of mental fear of possible future action on the part of the enemy. We think that the citizen owing allegiance to the United States must manifest a determination to resist commands and orders until such time as he is faced with the alternative of immediate injury or death. Were any other rule to be applied, traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch.

In this same connection, appellant claims that the court erred in failing to give her requested instruction that she was an enemy alien of Japan. This instruction did not advise the jury as to what the legal consequences would be of appellant being in that category. The requested instruction did no more than furnish the jury a new name for persons in her position. We think that the failure to add this terminology to the instructions cannot have been prejudicial, for the jury was fully informed as to the precise situation of the appellant and their deliberations could not have been aided by supplying them with an additional name for her status.

In support of this defense of coercion, appellant testified that one Takano, her civilian superior, informed her that she was “to take army orders * * * you know what the consequences are * * She undertook to give this statement significance by testimony as to atrocities inflicted by the Japanese upon certain internees and prisoners of war who disobeyed military orders. The testimony relating to the statement of Takano is the only evidence in the record which would appear to support the giving of an instruction with respect to duress or coercion. Appellant testified that she was not forced to take her position at Radio Tokyo and said that she did not broadcast because of any actual physical coercion or threats thereof. The only qualification of this testimony was the statement of Takano which she testified was made to her before she began her broadcasting activities. She testified -that she was not mistreated by the Japanese police. She performed her duties as script writer and announcer for the Zero Hour from November, 1943, until August, 1945. During this period she had pay raises; she was allowed the usual American holidays, and occasionally she absented herself from the broadcasting for considerable periods of time. These absences did not result in any immediate or drastic measures from her employers. On those occasions she ignored verbal and written demands to return to *360work and did so with, impunity and only returned to work when a Japanese official called upon her. There is no evidence of any determined refusal on her part which might have provoked coercion or brought about immediate and actual danger to her. In other words, there is no evidence that the appellant ever so conducted herself as to bring about a demonstration that death or serious and immediate bodily harm was to be apprehended for a refusal.

Appellant was permitted to introduce a vast amount of testimony which she says was in support of her claim that she operated in fear and under apprehension of harm to herself. Thus, she testified that during her stay in Japan after war began, she was interrogated by the police and was kept under constant surveillance by them. Her living quarters were searched by the police and she was required to obtain permission to move from place to place. She asked to be interned but this was denied her. She also testified that her neighbors, other civilians, were suspicious of her; that she was under fear of mob violence from the Japanese populace. In addition there was received evidence of atrocities practiced on the prisoners of war by the Japanese and evidence that for refusal by prisoners of war to obey orders the penalty of death was inflicted. Other witnesses called by appellant testified to instances in which guards killed prisoners in cold blood and tortured and beat others. Some prisoners of war had been compelled by threats of death or other violence to participate in the operation of the Zero Hour broadcast. In general these experiences relating to such prisoners and to other victims of atrocities were communicated to the appellant.

Appellant says that the court erred in giving the last three paragraphs of the instruction quoted in note 11, supra, to the effect that the fact that she was required to report to the Japanese police was not sufficient; that surveillance of the police was not sufficient; that threats made to other persons were not sufficient, etc. Appellant asserts that by this portion of the court’s instruction it emasculated all of this background testimony which was designed to disclose that appellant was operating in an atmosphere of terror.

■In order to consider the propriety of the instruction here complained of it is necessary to- understand the very wide scope which the court permitted appellant’s testimony to take. Although a strict following of the rule laid down in Gillars v. United States, supra, would have excluded evidence of threats or duress against others who participated in the Radio Tokyo broadcast, the trial court here allowed great latitude to appellant’s counsel in placing in the record evidence of sundry atrocities committed by the Japanese against persons other than the appellant.

When appellant began her work on the Zero Hour at Radio Tokyo, she came in contact with three prisoners of war who had broadcasted at this station for a considerable period of time before she was employed there. These were a Major Cousens, an Australian prisoner; Captain Ince, an American prisoner; and Lieutenant Reyes, a Filipino prisoner. Appellant was permitted to testify as to accounts which were given her by these prisoners of war of the manner in which the Japanese military had compelled each of them to participate in broadcasting activities and she was permitted to relate their stories to her of their harrowing experiences at the hands of the Japanese from the time they were taken prisoners. This included their accounts of torture and murder of other prisoners of war at Singapore, at Manila, and at Camp Bunka in Japan, where the prisoners whom the Japanese were using for broadcasting were kept. She testified that Cousens informed her that the Japanese were brutal and uncivilized; that they were sly and cunning and never to be trusted. Similarly, Cousens, Ince and Reyes were permitted to testify as to atrocities practiced on the prisoners of war and which they themselves related to appellant. Thus Cousens in telling appellant how he came to broadcast on the Radio Tokyo gave her an account of how the men were being starved, beaten and tortured; how an Australian prisoner had been beaten to death with a club for stealing a can of onions and a Chinese prisoner had been beaten and put *361to death with the water torture because he went mad with hunger and tried to seize some food. Cousens related his experience in solitary confinement, his observation of Japanese guards murdering prisoners in cold blood for trying to' seize food, and how the Japanese officers told the prisoners that the punishment for disobedience would be death.

Ince and Reyes testified to' telling the appellant about being compelled to broadcast for Radio Tokyo because of threats against their lives. Reyes gave accounts of the beating to death at Manila of two1 of his co-workers in the Manila underground radio; he told of observing Japanese soldiers at Manila bayoneting civilians for hiding food, machine gunning civilians, and of seeing Major Ince beaten.

Ince testified as to atrocities committed against the prisoners confined at Camp Bunka. In addition, the appellant was permitted to testify as to' police surveillance of herself and of the suspicion with which she was regarded by other Japanese in the neighborhood where she resided.

At the time this evidence was received, the court clearly indicated the theory upon which it was permitted to go in. The trial judge considered that such testimony was relevant as bearing upon the state of mind of the appellant. It is clear that the court considered and made it apparent to counsel and to the jury when the evidence was received that it had to do with the general question of whether the appellant had reasonable ground for apprehension of danger when she participated in the broadcast.12

It is our view that after the court had thus received at the instance of appellant this large volume of testimony none of which disclosed any direct duress or coercion against the appellant but which was relevant only as bearing upon the ques-. tion of reasonable ground for apprehension on the part of appellant, it was proper for the court to give the instruction of which complaint Í9 made. As we understand appellant’s objection to it, it is not seriously urged that this portion of the instruction did not correctly state the law, but it is contended that it had the effect of leading the jury to disregard this evidence and of preventing it from considering its cumulative effect upon the mind of the appellant. It is suggested that the primary vice in the instruction is that it “did not tell the jury anything about the cumulative effect of the above elements or of all the elements on coercion.” It is objected that the instruction was one-sided in telling the jury that each of certain items of evidence would be insufficient without mentioning the cumulative effect of a combination of all this evidence.

It is true that the court might have told the jury about the possible cumulative effect of all this atrocity evidence. It is clear that such a comment by the court would have been a comment upon the evidence which a federal court might properly make. Yet to hold that prejudicial error resulted from a failure to make such a comment would, we think, require an improper assumption of a degree of ignorance on the part of the jury with which we think the jury cannot properly be charged. We think that the record on the whole discloses that the jury was not misled as to the significance of the atrocity evidence received and that it must have understood that the evidence was received because of its bearing upon the question submitted in the instructions as to whether the coercion or compulsion was “of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.”

All the requirements of fairness to the appellant were met when she was permitted to introduce such testimony and from it argue to the jury that it had a bearing upon *362what she necessarily understood Takano to mean when he said: “You know what the consequences are.”

Appellant requested the giving of the following instruction: “If you find that the defendant did the acts charged in the indictment, but entertain a reasonable doubt as to whether or not she was acting under fear of bodily injury, beating or the like, then you must find the defendant not guilty.” This proposed instruction No. 98 was one of the 128 listed in the manner previously mentioned. There was no error in refusing to give this instruction not only because it omits the required element of immediacy in connection with her fear of bodily injury, but the element of reasonable apprehension of injury was adequately covered in the instructions as given.

It is noted that the charge (see footnote' 11, supra), referred to coercion or compulsion present, immediate and pending “of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.” The jury were told that if they believed that the defendant committed these acts “under a well grounded apprehension of immediate death or serious bodily injury, to be inflicted by any particular person or agent of the Japanese Government * * *13 you would be warranted in finding that the defendant committed the alleged acts under coercion and compulsion, and under those circumstances it would be your duty under the law to return a verdict of not guilty.”

In view of that instruction, we cannot hold the failure to give the requested instruction No. 98 quoted above to be prejudicial. The court may properly refuse requested instructions which, in substance, have been covered in the court’s charge. May v. United States, 84 U.S.App. D.C. 233, 175 F.2d 994; Nye & Nissen v. United States, 9 Cir., 168 F.2d 846, affirmed 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919. Elsewhere in the instruction the court charged the jury: “This brings us to a consideration of what effect, if any, duress, coercion or compulsion may have upon the acts of a person charged with a crime. You will note that during my charge to you I use the expression ‘if you find that the defendant committed these acts’, and, of course, that means that they must be in law, voluntary acts, that is, acts that were done purposefully, freely, and that they were intended and unconstrained.” In our opinion, the instructions of the court contained on the whole an adequate statement of the law relating to duress and coercion, and they were in our opinion as favorable to appellant as she had the right to demand.

Appellant argues that although the court received some evidence of the character herein mentioned, it erred in refusing to admit additional evidence (1) of duress on others, some of which was communicated and some of which was not communicated to appellant, (2) that the entire broadcasting staff of Radio Tokyo was in'a state of fear; and (3) that appellant’s neighbors made unfriendly demonstration against her.

We have previously noted that the court received a substantial amount of evidence of this same character. Appellant asserts that since the question of her reasonable apprehension of danger could only be judged in the light of all the relevant circumstances that the jury could not properly consider her situation in respect to the claimed duress unless they were permitted to weigh the cumulative effect of all such evidence. Therefore, appellant says, it was error for the court to receive some items of evidence of this character and exclude others.

We have examined with considerable care the items of evidence thus re*363jected by the court.14 It was within the discretion of the trial court in passing upon the admissibility of this atrocity evidence and related matters to hold that in order that it be relevant as bearing upon the state of mind of appellant, and upon the question of her reasonable grounds for apprehension, that it must have been communicated to her. Testimony of what happened to prisoners of war in South Burma in 1942 if not known to appellant would be of very doubtful significance in respect to any question before the court. Appellant argues that evidence of the treatment of prisoners of war by the Japanese, even although not communicated to appellant, would be relevant in showing that “the Japanese actually imposed the death penalty for trivial offenses; it tends to show fears well grounded that such a fate would also befall one in her position.” We believe that the logical relevance of such testimony would be so doubtful that it was properly within the discretion of the presiding judge to draw the line where he did. The trial judge was in a much better position than any appellate court could be to determine whether this line of testimony was likely to get out of hand and mislead the jury unless held within reasonable bounds.

Had appellant been permitted to introduce evidence of Japanese atrocities and mistreatment of prisoners without limitations as to whether appellant knew or did not know of the circumstances related, it might well have led to a situation in which the jury were given the impression that appellant was undertaking to prove that all Japanese were cruel, savage and sadistic and hence that she had the right to fear them all. Thus appellant sought to introduce an exhibit “W” which purported to be the orders given to Wake Island prisoners, on the occasion of their being transported by boat to another prison camp. The substance of the regulations was to the effect that disobedience of orders and instructions by the prisoners would be punished with death. The regulations contained numerous specific prohibitions such as walking without permission; touching the boat’s materials, wires, etc.; climbing ladders without order; running away from the boat; trying to take more food than allowed, etc. Even if appellant had known of these regulations, their relevance would be doubtful for her position as a civilian broadcasting employee was so different from that of a prisoner being transported by ship that this exhibit would be properly rejected in any event. As a bit of evidence of Japanese ruthlessness not communicated to appellant, it was clearly improper.

The greater part of the exclusionary rulings with respect to this type of evidence were made upon the simple ground that when offered it had not been shown that the incident sought to be testified to had been communicated to the appellant. When that situation appeared, the court properly held that a proper foundation for its introduction had not been -laid.15

Since the court properly held that such evidence would be relevant only if *364communicated to the appellant, the trial court’s discretionary power to control the order of proof warranted his requirement that -before such evidence be received it be established that the .¿acts were communicated to the appellant.16

For this reason we think that numerous of the exclusionary rulings of which appellant complaints were altogether proper.17

Other rejected evidence which appellant asserts should have been received was clearly irrelevant under any theory18

Some of the objections to the court’s rulings excluding offered evidence appear to be somewhat trivial.19

J Another group of rulings compia¡ne¿ 0f amounted to no more than a refusal of the judge to permit a repetition of testimony previously given by the same witness.20 The sustaining of such objection cannot possibly be prejudicial.

Other rulings which are related to matters involving the order of proof were the sustaining of objections to certain questions *365which were objected to as not proper cross examination.

It appears to us that the objections in these cases were properly sustained on that ground, and hence that appellant is in no position to allege prejudice.21

We conclude that there was no prejudicial error in the court’s rulings with respect to the receipt of evidence of the character here discussed.22

10. Public trial.

The Government introduced exhibits 16 to 21 which were phonograph records made by persons recording and monitoring what was said on the Zero Hour broadcast when appellant was broadcasting. The exhibits were used for the purpose of identifying the sound of the appellant’s voice. The records when played were inaudible without earphones and hence the Government provided about 40 earphones for the judge, jury, clerk, court reporter, appellant, counsel and members of the press. Appellant objected that this procedure denied her a public trial in that the public spectators could not hear the exhibits.

A similar contention was rejected in Gil-lars v. United States, supra, and we think correctly. Essentially the records were exhibits and we think that appellant might as logically argue that she was denied a public trial because certain exhibits such as photographs, samples of handwriting, etc., although examined by the parties and by the jury were not passed around to the spectators in the courtroom. We think that the contention as to lack of public trial is wholly without merit.

11. Geneva Convention.

Appellant complains of the failure of the trial court to give instructions relating to the Geneva Convention and to the fact that under that Convention a nation at war may require its prisoners of war to perform “work indirectly related to the war effort.” The claim was that if the jury should find that the broadcasting activities only indirectly related to the Japanese war effort then none of the overt acts charged *366could be an overt act of treason within the meaning of the Constitution.

The first difficulty about the application of the Geneva Convention to acts performed by appellant is that appellant was not one of the persons referred to in that Convention, which refers only to prisoners of war. Appellant was not 'in that category; she was an uninterned civilian.

We think that the Geneva Convention did not change the law of treason. If the overt act performed by appellant was such as to give aid and comfort to the enemy, the fact that the the enemy could have legally demanded a similar act under the terms of the Convention is irrelevant. It is essential to the crime of treason that the overt act be committed with the intent to betray the United States. Appellant says that unless the act itself is criminal, “no intent can turn it into treason”. Such is not the law. “The very minimum function that an over act must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy.” Cramer v. United States, 325 U.S. 1, 34, 65 S.Ct. 918, 934, 89 L.Ed. 1441. The overt acts in the Haupt case (Haupt v. United States), 330 U.S. 631, 67 S.Ct. 874, 91 L.Ed. 1145, consisted of the accused’s furnishing food,lodging, transportation and employment to his son. Certainly these acts of parental solicitude are not criminal. However, the fact the son was a German saboteur, known as such to his father who had expressed his admiration for the Nazis and antipathy towards the United States, in addition to these overt acts, were held to constitute sufficient basis to sustain a conviction for treason. We think the court did not err in its ruling upon this point.

12. Claimed misconduct of prosecutor.

Appellant asserts that on numerous occasions during the trial, Government counsel were guilty of such serious misconduct that the record in respect to this requires a new trial. These claims of misconduct relate to alleged misstatements of the record during the argument to the jury; alleged misstatements of the testimony of other witnesses which were incorporated in questions propounded to appellant and in arguments made to the jury asserted to exceed the bounds of propriety. Thus, .it is said, that Government counsel in argument -to the jury misstated overt act No. 6 as follows: “That was in October, 1944. Overt act 6. She unhesitatingly, unequivocally, denies broadcasting those words or anything like it. Well, you can understand why she refuses to admit the voicing of that broadcast. The government has produced not two witnesses, but five, who contradict her testimony. Mitsushio, George Mitsushio, Kenkichi Oki, Satoshi Nakamura, Clark Lee and Richard Henschel. Now this testimony from five witnesses that -the defendant broadcast the .incident about American ship losses after Leyte Gulf, concerning which five government witnesses testified. * * * It is said that this was misconduct, for one reason, because Clark Lee’s testimony was merely with respect to his later interview with appellant in which appellant had stated to Lee that she had broadcast about the loss of ships, (which was the subject of overt act No. 6. However, the testimony of Lee was that the appellant’s statement identified this broadcast as following the Battle of Formosa. The witnesses who gave direct testimony concerning overt act No. 6 had identified it as. a broadcast following the Battle of Leyte Gulf.

It is asserted that it was misconduct for the prosecutor thus to list Clark Lee as a fifth witness to overt act 6. When the argument was made, it was challenged by counsel for appellant who assigned it as misconduct and requested the court to direct the jury to disregard it. Thereupon the court told the jury that argument is not evidence; that the matter of evidence was entirely with the jury; that they had heard the evidence, and that it was for them to take action on that evidence. In addition, the court in its general charge to-the jury, told them: “You should distinguish carefully between what has been testified by the witnesses and what has been stated by the attorneys. Statements and arguments of counsel are not evidence in the case.” Again the jury were charged! *367in great detail that in order to establish an overt act the minimum proof necessary is the direct evidence of the overt act given through the testimony of at least two witnesses. In this connection the court charged the jury that persons who testified to out of court admissions of the defendant may not be counted as witnesses within the meaning of the constitutional requirement. The court further named the three witnesses who the jury were told had testified concerning the commission of overt .act No. 6.

It appears to us that what the prosecutor was here arguing was merely that although appellant had denied making any such broadcast about the loss of ships at any time whatsoever, she had been contradicted by five witnesses including Clark Lee. Prosecutor proceeded to read verbatim the testimony of Clark Lee on this point.

The trial judge had an opportunity far superior to that afforded us to judge whether the remarks of counsel in the setting in which they were given constituted such misconduct as to require a more emphatic admonition or instruction to the jury to disregard. Manifestly the argument in question was but a momentary phase in an extended argument which concluded a three months’ trial. Our system of adversary procedures in the trial of cases is designed to arrive at the truth by encouraging vigorous prosecution and defense. The making of arguments by counsel which are sometimes unwarranted by the evidence is commonplace as counsel are frequently carried away by the ardor of advocacy and the excitement of trial. If every remark of counsel outside the record were ground for reversal few verdicts would stand. Our system of jurisprudence properly makes it a matter primarily for the discretion of the trial court to determine whether prejudicial misconduct has occurred. An appellate court will not review the exercise of the trial court’s discretion in such a matter unless the misconduct and prejudice is so clear that it can be said that the trial judge has been guilty of an abuse of discretion. We think that such cannot be said with respect to the incident here referred to.

For the reasons we have just expressed we are satisfied that we cannot upon this record hold that the trial judge was guilty of reversible error in the manner in which he dealt with the other claims of misconduct of the prosecutor in the course of his argument to the j.ury.

Thus, it is argued that a certain exhibit 52 was offered and received solely for the purpose of impeachment of a defense witness, and in his argument to the jury one of counsel for the prosecution attempted to assert that it constituted substantive evidence of the facts recited in the exhibit.

This exhibit was a statement in writing which the witness Reyes had previously given to an officer of the Federal Bureau of Investigation. Reyes had testified on behalf of appellant that he with Cousens and Ince had undertaken to sabotage the propaganda programs of Radio Tokyo and that' they secured the- aid of appellant in so doing. The exhibit in question contained statements which tended to contradict that testimony. The prosecutor argued to the jury as follows: “Reyes’ statements that he made to members of the FBI are quite illuminating. He made a statement on October 2nd, 1948. It is Government’s Exhibit No. 52, I think, I will read the entire statement to you ladies and gentlemen. I think it is a very important piece of evidence in this case. Proves conclusively that there was no sabotaging of the program.” Appellant asserts that this was an improper argument that the exhibit proved substantive facts in the case, and that such argument was misconduct.

We think that it cannot be demonstrated that the argument had that effect. We believe it was not out of order for counsel to assert that the prior contradictory statement was “quite illuminating”. We also think that it could properly be argued that the making of the prior contradictory statement proved that the facts were not as testified to by the witness upon his direct examination. That is all that the argument amounted to.

During the argument one of counsel for the Government made the statement that some of the prisoners of war might later *368be put upon trial. Objection to the remark was made by counsel for appellant and the court was asked to instruct the jury to disregard it. The court granted the request and told the jury: “We are not concerned about any one that may or may not be prosecuted. So you may disregard that for any purpose in this case.”

Also during the argument Government counsel in quoting the testimony of one Sugiyama stated that the latter had testified that he heard the appellant broadcast: “You must be lonely out there. It is very uncomfortable out there.” At the conclusion of this argument counsel for appellant stated to the court, “We assign as misconduct and ask that the jury be instructed to disregard as being a distortion of the evidence the statement that Harris Sugiyama quoted here as saying ‘you must be lonely out there’ * * * and stopping there; the full quotation is: ‘You must be lonely out there. Let me cheer you up with some music.’ ”

This correction of the quotation and request for an instruction was made in the presence of the jury and was followed by some additional objections as to portions of the Government’s argument. The court then immediately said to the jury: “I will indicate to the jury at this time that the argument is not evidence. The matter of evidence is entirely with the jury. They heard the evidence in this case and it is for them to take action on that evidence.”

This statement of the court, as indicated, alluded to the objection of appellant quoted above and also to the appellant’s request “that the jury be instructed to disregard the argument that this case should serve as a warning to others.” This referred to the prosecutor’s argument that “This matter should serve as a warning to others that they cannot, in our great hour of peril, desert their country and with impunity adhere to the enemy — and'not, if the United States survive, be brought to book before a federal court of justice.”

We have previously quoted from the general charge to the jury the instruction to distinguish between testimony and argument. The court added: “You must consider only evidence before you. That evidence consists of sworn testimony of witnesses with the exhibits which have been received in evidence, all facts which have been stipulated or agreed to by counsel, and all applicable presumptions stated in these instructions. * * * Remember also that the question before you can never be whether the Government wins or loses the case. The Government always wins when justice is done regardless of whether the verdict be guilty or not guilty.”

We think that under these circumstances it cannot be said that there was any misconduct of Government counsel of such character as to require a new trial. Cf. Holt. v. United States, 218 U.S. 245, 250, 31 S.Ct. 2, 54 L.Ed. 1021. The remarks complained of were, all taken together, but brief and isolated portions of a six hour argument concluding a three months’ trial. We are in no position as an appellate court to find the rulings made by the trial court inadequate to assure a fair trial. Cf. Johnston v. United States, 9 Cir., 154 F. 445, 449; Mellor v. United States, 8 Cir., 160 F.2d 757, 765; Stephan v. United States, 6 Cir., 133 F.2d 87, 99; Dunlop v. United States, 165 U.S. 486, 498, 17 S.Ct. 375, 41 L.Ed. 799; Crumpton v. United States, 138 U.S. 361, 364, 11 S. Ct. 355, 34 L.Ed. 958.

Other claimed instances of the prosecutor’s misconduct have to do with certain cross or re-cross-examination of the appellant. Thus it appears that upon re-cross-examination, Government counsel referring to Government’s exhibit 5 and defendant’s exhibit B-P, repeatedly endeavored to get the appellant to admit that she never applied for reestablishment of her citizenship. It is argued that the exhibits themselves disclosed a letter written by appellant to American Consular Service referring to^an application for reestablishment of her American citizenship. In alluding to this examination, appellant says that the prosecutor “browbeat” appellant through six pages of coercive, bullying cross-examination. We think that the most that this portion of the record discloses was that the prosecutor was proceeding up the wrong alley, for he got nowhere by this cross-examination. The witness was-*369not misled and the whole effort amounted to nothing. Nor is there anything in this cold record to indicate that the trial judge should have assumed that in this futile effort the prosecutor was proceeding dishonestly or in bad faith.

The other alleged instances of misconduct of the prosecutor in cross-examination of the appellant appear to us to be petty and too clearly without merit to warrant more extended discussion.23

13. Cross-examination of defendant-appellant.

Appellant complains of several rulings on the testimony given during the time that she was under cross-examination by Government counsel. On a number of occasions during her cross-examination with respect to matters on which her testimony had differed from that of other witnesses, she was asked if she heard the testimony of a certain Government witness upon that point. When she replied that she had heard such testimony and that it was in disagreement with what she was then saying, appellant was asked if the other witness was in error.24 She now urges that it was error for the trial court to permit such questions to be asked on the ground that it is improper to ask one witness to pass on the truth or falsity of testimony of another witness.

Undoubtedly the rule thus stated is one of general application and supported by authorities. But we think it has no application to the facts here. Essentially what happened here was not an attempt to procure the opinion of one witness as to the veracity of another witness; what was sought was to point up the contradiction in the appellant’s testimony for the purpose of more effectively bringing that contradiction to the attention of appellant and of the jury as part of the cross-examination. When the appellant herself took the stand and undertook to testify upon direct examination concerning these sundry subjects, she subjected herself to cross-examination on behalf of the prosecution as fully as any other witness in the case. Powers v. United States, 223 U.S. 303, 315, 32 S.Ct. 281, 56 L.Ed. 448; Shipley v. United States, 5 Cir., 281 F. 134, certiorari denied 260 U.S. 726, 43 S.Ct. 89, 67 L.Ed. 483.

The right to cross examine a witness is fundamental in our judicial system. Vigorous and searching cross-examination is a powerful instrument for the ascertainment of truth. Appellate courts, particularly, are loath to lay down rules which might unduly restrict the latitude of cross-examination. The proper limit of fair cross-examination is a matter within the sound discretion of the trial court. Austin v. United States, 9 Cir., 4 F.2d 774, 775; Land v. United States, 4 Cir., 177 F.2d 346, 350.

We think that the method of cross-examination adopted by the prosecutor in this case was proper. Certainly the rulings of the court below cannot be said to evidence an abuse of discretion. Appellant is unable *370to demonstrate any prejudice to her arising out of the rulings of the trial court upon these questions. Cf. United States v. Buckner, 2 Cir., 108 F.2d 921, 929, certiorari denied 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016.

Another claim of improper cross-examination of appellant relates to the inquiries addressed to her as to overt act No. 8. Counsel for appellant objected to the cross-examination upon this point on the ground that it was improper as relating to matters that were not touched upon on direct examination of the witness. We think that appellant's contention is based upon a misunderstanding of the proper scope of cross-examination. Appellant had given testimony in her direct examination designed to show both directly and circumstantially her good intent and her lack of intent to betray the United States. Thus the whole question of appellant’s intention was open to inquiry upon cross-examination and the cross-examiner was entitled to bring up for examination any matter which rightly had a bearing upon intent. The intent necessarily had to be gathered from the acts and conduct of the appellant. Chandler v. United States, supra, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081. If she participated in overt act No. 8 that fact would have an important bearing upon her intent and would be material because of the inferences properly drawn from it. Austin v. United States, 9 Cir., supra; Diggs v. United States, 9 Cir., 220 F. 545, 563, affirmed 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442.

Within the compass of some seven pages of her brief, appellant lists wh-at she calls a “long procession of errors” and a “torrent of improper questions”, all relating to cross-examination of appellant. Notwithstanding these same pages contain some of the most flagrant failures to comply with the rule relating to specification of errors, and the appellant has here wrapped up in a small bundle a very long list of complaints which have been dumped into the lap of the court, we have painstakingly examined each one and conclude they are without foundation and relate to matters which in our opinion cannot possibly be prejudicial.25

14. Cross-examination of appellant’s witnesses.

Appellant makes numerous objections to the rulings of the trial court as to the scope of cross-examination of certain defense witnesses. One of her witnesses, Ito, testified about many conversations she had with appellant during the latter’s stay in Japan. The direct examination was designed to disclose appellant’s loyal attitude toward the United States. Upon cross-examination the witness was asked whether appellant had talked about her work at Radio Tokyo and thereupon these portions of the conversations were developed by questioning the witness.

*371If parts of the conversations were given upon the issue of intent, it seems obvious that other contemporaneous conversations bearing on the same subject could be properly developed on cross-examination. Counsel cannot bring out favorable parts of a conversation and then preclude his opponent from developing on cross-examination the unfavorable parts.

It is complained that in cross-examination of appellant’s witness Reyes, the prosecutor insisted upon a yes or no answer and refused to afford the witness an opportunity to explain the answer given. There is no basis in the record for this contention. Reyes admitted during the trial that portions of his sworn testimony were false and he was given an opportunity not only to explain his answers but to explain why he had given false testimony. Other faults were found with the cross-examination of Reyes but we find the contentions without merit.

Objection is made to the fact that Government counsel in cross-examining appellant’s witness, Ince, referred to appellant as a Japanese. The question was: “Now the defendant was not the only Japanese with whom you were friendly, was she?” It was objected that the question was highly improper and that there was no evidence that the defendant was Japanese. It is asserted that this was an appeal to race prejudice and denied appellant a fair trial. Since appellant was present in court, and since 'her ancestry and racial origin were admitted and testified to by her, we find no prejudicial error in permitting the asking of the question.

15.' Limitations placed upon cross-examination on behalf of appellant.

Appellant lists a number of respects in which she says that the court unduly restricted her cross-examination of certain Government witnesses. After the witness Clark Lee had testified on direct examination as to what appellant had told him during^his interview of her understanding of the purpose of the Zero Hour, and that she had said that she Understood that the purpose of that broadcast “was to make them homesick and unhappy about sitting in mud”, counsel for appellant asked Lee on cross-examination if Lee had not stated in a book written by him that appellant’s programs were entertaining to the troops. We think that the objection was properly sustained. It would have been proper to impeach Lee by proof of prior statements which contradicted his direct testimony, but his direct testimony had nothing to do with his own opinion of appellant’s broadcast. What Lee said in his book about the entertainment value of appellant’s broadcast in no manner tended to contradict his direct testimony as to what appellant told him when he interviewed her.

Equally groundless is the complaint as to the sustaining of an objection to questions put to Lee as to whether a certain Colonel Munsing told Lee in Tokyo that “Tokyo Rose” was a Canadian girl. Aside from being obvious hearsay the statement was without value for want of any testimonial foundation.

Complaint is made that the court refused to allow counsel for appellant to ask Lee if appellant could possibly have obtained counsel at the time she, in the presence of her husband, had her interview with Lee. The question .was objectionable for the matter was irrelevant and immaterial. It was admitted that no counsel was present at the time. To ask Lee whether it would have been possible for her to obtain counsel was to seek the sort of speculative conclusions which appellant was not entitled to ask the witness.

Appellant complains she was not allowed to ask the Government witness Henschel whether he had an opinion as to appellant’s guilt or innocence. Appellant asserts that she had a right to ask this question for the purpose of demonstrating the witness’ bias. The right to demonstrate bias of a witness is unquestionable, but the interrogation in this instance was not designed to demonstrate either bias or lack of bias. Moreover, the inquiry was highly objectionable because it sought a conclusion from a witness upon the question which was exclusively within the province of the jury.

*372One Nii was a Government witness. On cross-examination he said he did not remember what he said to appellant’s counsel in an interview in Japan in the spring of 1949 because both parties were drinking and he and the attorney were both intoxicated. On redirect examination the witness testified that the liquor on the occasion in question was furnished by appellant’s attorney. On re-cross-examination Nii was asked how much liquor he customarily consumed during the spring of 1949. Ofoj ection to this inquiry was sustained and the appellant claims such was error.

To have permitted this inquiry, which at most might have developed that Nii was a heavy drinker, would have been an attempt to impeach the witness by proof of particular acts of misconduct. Shively v. United States, 9 Cir., 299 F. 710, 713, certiorari denied 266 U.S. 619, 45 S.Ct. 99, 69 L.Ed. 471. In any event, Nii’s drinking habits would have so little relation to what transpired upon the occasion of the interview that the court’s refusal to permit the inquiry cannot he said to be prejudicial.

Other complaints of limitations in cross examination relate to refusal to permit appellant to ask Government witness, Villarin, the names of Japanese officers who had threatened him, and to the refusal to permit cross examination of Government witness Hall as to whether he heard broadcasting from a Japanese station at Rabaul. As neither inquiry was proper cross examination the ruling in each case was correct.

16. Miscellaneous rulings on evidence.

Through the deposition of one Saisho, the appellant sought to impeach three Government witnesses by reputation evidence. In respect to two of these witnesses the inquiry fixed no locale for the reputation. None of the questions fixed any time for the existence of the reputation inquired about, and in each case the inquiry was with respect to the reputation of the witness with reference to “truth, honesty, and integrity”.26 The common rule is that the inquiry .should be limited to the traits involved, namely, “truth and veracity”. Powell v. United States, 9 Cir., 35 F.2d 941, 942. For the reasons stated in the last cited case we think that the trial court’s ruling was correct.

Complaint is made of the exclusion of a number of questions propounded to the appellant which so clearly called for hearsay evidence that extended discussion of the points made is not warranted here.27

*373Other rulings on the admission of evidence offered by the appellant were so clearly proper that the mere statement of the offered evidence discloses its impropriety.28

17. Evidence that appellant’s broadcasts were harmless.

Appellant offered certain evidence designed to show that the effects of her broadcasts were either beneficial to the morale of American armed forces or at any rate were harmless. That a traitorous plan does not have the desired effect is immaterial. Chandler v. United States, supra. Cf. Gillars v. United States, supra; Haupt v. United States, supra, 330 U.S. at page 644, 67 S.Ct. at page 880.

A further reason for the rejection of this evidence is found in the character of the rejected testimony itself.29

18. Claimed evidence of fraud in preparation of Government’s case.

Appellant undertook to prove that there was fraud in the preparation of the Government’s case. This appellant says, she was prepared to prove through showing first, that certain subpoenas to Government witnesses were fraudulently issued, and second, that one Brundidge on behalf of the Government had bribed or attempted to bribe Government witnesses.

In our opinion the proof offered would have no tendency to establish any claim of fraud. It was intended to prove that although the trial, originally set for May 16 was postponed to July 5, 25 Government subpoenas required certain witnesses to appear on June 27, 28, 29 or 30. Even if the subpoenas had been admitted, they would have no tendency to show fraud, rather than mistake or oversight, and in any event, the witnesses were the only persons that could complain. Sachs v. Government of the Canal Zone, 5 Cir., 176 F.2d 292, 296.

As for Brundidge, his claimed unsavory conduct was offered to be proven only by hearsay evidence and the offered evidence that his trip as a newspaper man accompanying a Department of Justice attorney *374was in part paid for by the United States and that he had an army permit reciting that he was on official business for the Department of Justice fell far short of disclosing that any of his acts of misconduct were within the course of the claimed employment.

19. Identification of appellant as Tokyo Rose.

Appellant says that she was prejudiced by the admission in evidence of exhibits 16 to 21 which were recordings of her broadcast bearing the notation on each that they were broadcasts by “Tokyo Rose”. She says that the Government was attempting to label her as Tokyo Rose.

It appears that the persons who made the recordings identified them in the manner indicated. But there was no claim on the part of the Government that appellant broadcast as Tokyo Rose, and the marks upon the recordings were not relied upon to tie them to the appellant’s broadcast. Their authenticity was proven by entirely different evidence. It was hardly more significant that the records bore the notation “Tokyo- Rose” than would have been the case had the recordings been painted a particular color or been scratched in a peculiar manner.

It was not disputed that the appellant herself had chosen at times to refer to Tokyo Rose. We have mentioned the yen note. She also autographed a number of scripts of her broadcasts and gave them away to various persons marking them herself with a reference to Tokyo Rose. We think that the circumstances that the recordings bore this notation was in no way prejudicial to appellant.-

Appellant tried to show that the name “Tokyo Rose” had 'been in circulation long before she began to broadcast. The witnesses by which appellant undertook to prove this had never heard broadcasts of the Zero Hour, and all that was sought from them was hearsay evidence that the appellation Tokyo Rose was in circulation in the early years of the war. Under the circumstances here, this was immaterial and the evidence by which it was sought to be injected in the case was incompetent.

20. Refusal to permit offers of proof.

Appellant rather bitterly complains that on many occasions when the court sustained objections to questions propounded by counsel for appellant, the court did not permit appellant forthwith to make offers of proof.30

If this -court were to hold that appellant was precluded from claiming error in the sustaining of an objection to a question propounded on her behalf for want of an offer of proof, then the court’s refusal to -permit the offer to be made might well be prejudicial. It is of course elementary that an offer of proof is required where it is necessary to enable -the appellate court to determine whether the excluded answer would have been such as to affect the substantial rights of the parties. Wigmore, Evidence, 3d Ed. Sec. 20, p. 357. But a formal offer of proof is not necessary where the record shows, either from the form of -the question asked or otherwise,, what the substance of the proposed evidence is. Cf. Meany v. United States, 2 Cir., 112 F.2d 538, 539, 130 A.L.R. 973; Clauson v. United States, 8 Cir., 60 F.2d 694, citing; *375Buckstaff v. Russell & Co., 151 U.S. 626, 636, 14 S.Ct. 448, 38 L.Ed. 292.

The appellant has not found herself handicapped because of any holding on our part that an essential offer of proof was missing. In each instance called to our attention it is apparent that any conceivable answer would have been inadmissible.31

21. Question of appellant’s inspection of reports by Federal Bureau of Investigation.

Prior to the trial, FBI agents Dunn and Tillman had interviewed defendant’s witness Reyes. In the course of that interview they had procured the execution by Reyes of two writings subsequently introduced as exhibits 52 and 54. They also made inquiry of Reyes about his personal history which Reyes gave to them orally. They took notes of this conversation and subsequently made a report of this matter in accordance with their usual practice, and the notes were destroyed. This investigative report contained an account of Reyes’ oral conversation about his personal history. No part of the record was used or referred to in the course of the testimony by the agents, either for refreshing memory or otherwise. While Tillman was on the stand counsel for appellant made the demand: “That the notes made by the Federal Bureau of Investigation agents * * * made to them or either of them on or about October 5, 1948 by Norman Reyes * * * be produced for inspection and examination and for use in examining * * * the witness Frederic Tillman who is on the stand.” At the time Tillman had been called in rebuttal to testify as to the voluntary execution of exhibits 52 and 54.

We think that the correct ruling is that recited in Goldman v. United States, 316 U.S. 129, 132, 62 S.Ct. 993, 995, 86 L. Ed. 1322, to the effect that it is “the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them.” That case also held that under the circumstances here existing, whether the Government’s files be produced should in general be a matter for the determination of the trial judge.

It is apparent that what was sought here was but a part of the work papers used by the prosecutor in preparing the case. There was a complete lack of showing that the papers in question were relevant for the purpose of impeachment. Cf. Arnstein v. United States, 54 App.D.C. 199, 296 F. 946. We think it cannot be said that in refusing to require production of this paper the court abused its discretion.

22. Refusal to produce defendant’s witnesses from Japan.

Appellant filed a series of motions requesting the court to issue subpoenas to some 43 witnesses residing abroad requiring their attendance at the trial at the expense of the Government. After six such motions, a seventh motion requested that in the event of denial of the previous motions,, the court provide for the taking of depositions at Government expense of witnesses residing abroad. This motion was granted and the others denied. The Government was thereupon required to defray the expense of taking the depositions and of appellant’s attorneys’ travel and subsistence expense for that purpose. Subsequently stipulations were made enlarging the list of persons whose depositions might be taken.

Substantially all of the persons for whom process was thus sought were not United States citizens and their attendance could not have been compelled. Cf. Blackmer v. United States, 284 U.S. 421, 52 S. Ct. 252, 76 L.Ed. 375; United States v. Best, *376D.C., 76 F.Supp. 138, 139; 28 U.S.C.A. § 1783. In any event, the question of payment by the United States of fees and expenses of defense witnesses is one within the sound judicial discretion of the trial court. Meeks v. United States, 9 Cir., 179 F.2d 319; Dupuis v. United States, 9 Cir., 5 F.2d 231. Cf. Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343. We find no reversible error in the action of the trial court here referred to.

23. Instruction respecting overt act No. 6.

In the course of its charge to the jury, the trial court listed and sorted out the various overt acts charged in the indictment and stated to the jury: “The witnesses who testified regarding the commission of overt act No. 6 were George Mitsushio, Kenkichi Oki, and Shatoshi Nakamura.” Appellant asserts that it was error for the court to tell the jury that Nakamura had testified to overt act No. 6 for the reason that while the other two witnesses mentioned had placed this act in October, 1944, Nakamura testified to a similar broadcast “in the fall of 1944”. It is argued that since the fall of 1944 covers more than October, Naka-mura might have been referring to a different incident. Appellant says that the jury should have been allowed to pass upon the question whether Nakamura did or did not testify as to overt act No. 6.

We think that the record does not sustain this argument. Nakamura testified as to a broadcast concerning a loss of ships. He was present in the studio and he heard the news broadcast concerning the battle of Leyte Gulf. Immediately thereafter the witness introduced the appellant. He described the news broadcast in the following manner: “Q. What did he say, Mr. Nakamura, everything to the best of your recollection that he said. A. Americans 'have lost many ships in the battle. Q. What battle? A. The Battle of Leyte Gulf.” Immediately thereafter he took the microphone and said, “So much for the war news and here comes Orphan Ann”. Thereupon appellant made the broadcast described by this witness. We think the circumstances thus demonstrated compel a conclusion that Nakamura was describing the same incident as the other two witnesses. The instruction was correct.

Since we find no prejudicial error in the record the judgment is affirmed.

MEMORANDUM OPINION AND ORDER

McDONALD, District Judge.

Introduction

This is an action filed on April 16,1981 by an organization of Vietnamese Fishermen and individual Vietnamese fishermen against the Knights of the Ku Klux Klan, the Grand Dragon of the Ku Klux Klan in the State of Texas, certain unknown members of the Ku Klux Klan, the American Fishermen’s Coalition, various alleged members of that coalition, and several individual American fishermen alleging violations of various federal and state statutes.

Specifically, the plaintiffs allege that the defendants have violated their rights under several civil rights statutes: 42 U.S.C. §§ 1981, 1982, 1985(c), and 1986; the Thirteenth and Fourteenth Amendments to the United States Constitution; the Sherman Act, .15 U.S.C. §§ 1, 2, 15, and 26; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962 and *10001964; and the common law torts of assault, trespass to personal property, the intentional infliction of emotional distress and intentional interference with contractual relations. In addition, the plaintiffs allege in their Second Amended Complaint that defendants Louis Beam and the Knights of the Ku Klux Klan have violated their rights under Tex.Rev.Civ.Stat.Ann., art. 5780 § 6 (Vernon). Relief by way of preliminary and permanent injunction has been requested as well as a declaratory judgment.

The plaintiffs seek a preliminary and permanent injunction enjoining the defendants generally from engaging in any activity, including unlawful acts of violence or intimidation, conducted for the purpose of interfering with the rights of the Vietnamese fishermen prior to and during the shrimping season, which begins on May 15, 1981.1 In particular the plaintiffs request this Court to restrain the defendants from undertaking:

(a) activities undertaken with the purpose of interfering with the rights of the plaintiff class at issue in this case;

(b) unlawful acts of violence or intimidation against the plaintiff class;

(e) engaging, or inciting others to engage in acts of boat burning, armed boat patrols, assault and battery, or threats of such conduct;

(d) maintaining or conducting or attending military or paramilitary camps and giving or receiving military or paramilitary training except from military institutions operated by the state of Texas or United States government.

The plaintiffs also request this Court to require the conspicuous posting of all Orders as the Court may issue at all meetings and meeting places of any or all of the defendants and to appoint additional United States Magistrates and deputies to prevent the violation of any Orders of this Court.

The plaintiffs’ class of Vietnamese fishermen was certified by agreement of all parties on May 8, 1981. The class is defined as “all Vietnamese fishermen in the Galveston Bay, Texas area” and may be maintained under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The defendants’ Motion to Dismiss has previously been denied by Order of this Court on May 11, 1981. The Vietnamese Fishermen’s Association and the named Vietnamese plaintiffs clearly have standing to represent the plaintiff class. Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975), NAACP v. FPC, 425 U.S. 662, 96 S.Ct. 1806, 48 L.Ed. 284 (1976); NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973). The testimony and documentary evidence received during the hearing on the Motion for Preliminary Injunction makes it absolutely clear that the claims are justiciable.

The defendants’ Motion to Disqualify this Judge was denied after a hearing on May 7, 1981. A separate Memorandum and Order has been entered regarding that motion.

The Court conducted a hearing on the plaintiffs’ Motion for a Preliminary Injunction on May 11-14, 1981, during which both the plaintiffs and the defendants presented evidence and oral arguments. Upon the. conclusion of said hearing, the Court issues the following Memorandum Opinion and Order.

It is well settled that in order to obtain a preliminary injunction the plaintiffs must prove that: *1001 See Spiegel v. City of Houston, 636 F.2d 997 (5th Cir. 1981); Buchanan v. United States Postal Service, 508 F.2d 259, 266 (5th Cir. 1975); Allison v. Froehlke, 470 F.2d 1123, 1126 (5th Cir. 1972). See generally Wright & Miller, Federal Practice & Procedure, § 2948. In view of these requirements, the Court will consider each of the causes of action asserted by the plaintiffs to determine whether they have met their burden.

*1000(1) they have a substantial likelihood of prevailing on the merits;

(2) there exists a substantial threat of irreparable injury if the injunction is not granted;

(3) the threatened injury to plaintiffs outweighs the threatened harm the injunction may cause the defendant; and

(4) granting the injunction will not dis-serve the public interest.

*1001THE FACTUAL SETTING

On or about January 24, 1981, defendant Fisher was introduced to defendant Louis Beam, Grand Dragon in the State of Texas of the Knights of the Ku Klux Klan (hereinafter KKK or Klan), by defendant James Stanfield a member of the Original Ku Klux Klan of America. (Stanfield Depo. at 13) The admitted purpose for this introduction was for defendant Fisher to secure support of Louis Beam and the Klan in order to further the purposes of a group of American fishermen who were ostensibly concerned about “over fishing” in the Kemah-Seabrook area of Texas. Defendant Fisher considered that the Klan was an organization that had the “courage” to stand by their convictions and would provide needed publicity to draw the attention of various governmental agencies he felt had failed to address his concerns. This meeting resulted in a rally that was held on February 14, 1981 on the property of defendant Joseph Collins that is located in Santa Fe, Texas. Defendant Joseph Collins leased this property for that purpose for a $1.00 payment from Mr. Stanfield. Defendant Fisher testified that he contacted defendant Beam to speak at the rally. Defendant Beam brought with him to the rally approximately 13 men who he refers to as his “security force” who were dressed in military garb and he gave a speech at that rally. He stated in substance that he would give the government 90 days 2 to rectify the situation, (referring to the presence of the Vietnamese fishermen in the Kemah-Seabrook area) and if that was not accomplished the Klan would take action stating it “may become necessary to take laws into our own hands.” He admitted stating in his speech that it was necessary to “fight fight fight” and see “blood blood blood” if this country was to survive. That rally was covered extensively by the news media. At that same rally, Beam demonstrated how to burn a boat. A cross propped with the aid of a pickup truck of defendant Joseph Collins was also burned at the rally. On that evening, defendant Beam offered to train American fishermen at one of the “military camps”, later referred to as “locations” during his testimony in Court.

On March 15,1981, a “boat ride” was held in the waters surrounding the Kemah-Seabrook area. The boat was owned by defendant Joseph Collins and was navigated by defendant David Collins. The boat was the shrimping boat used by defendant Joseph Collins in his business, and by his own admission it is hardly a “pleasure craft.” Defendant David Collins denies that this boat ride was planned in advance and testified that it was essentially a spontaneous event taken because it was a beautiful day. However, Mr. Emery Waite, a seafood retailer and processor in Seabrook testified that he had heard about the impending boat ride a day or perhaps a week before the boat ride actually took place. Several persons who were on that shrimp boat on March 15, 1981 wore robes of the KKK, some also wore hoods and most were visibly armed. The boat was equipped with a small cannon and a figure hung in effigy. Defendant Stanfield was present on the boat and wore a Klan robe and hood. Other persons who through testimony were clearly identified as being members of the Klan were also on the boat. Defendant Beam testified that he was informed of this boat ride shortly before it occurred and gave his approval to a member of the Klan to wear robes and bear arms, but admonished the members to refrain from any violence. Defendant Fisher, however, testified *1002that he considered being armed a threat of violence. Other persons who viewed, participated in or heard of this boat ride acknowledged that this display would be fearful and intimidating to Vietnamese fishermen. Indeed, Joanne Oliphant-Curren, a reporter who was invited by David Collins to join them in the boat ride testified that she was “scared.” By way of explanation she stated that the presence of robed, armed Klansmen on the boat might incite others to respond in a violent way and acknowledged that if she were a Vietnamese fishermen she would be afraid by such a display. Not only did she testify to this effect, but she reported the account of the boat ride in the April 22, 1981 issue of the Santa Fe Express News (Plaintiffs’ Exhibit No. 38). She reported that “Collins steered the boat out into the bay well past the mile marker and the Klansmen fired their small cannon (Plaintiff’s Exhibit No. 38). Everybody else had their fingers in their ears, but I was snapping pictures and the cannon blast left me nearly deaf for a few moments.” The account in the newspaper further related the following: “Let’s hear it for the American fishermen, David Collins shouted and the fishermen cheered.”

Defendant David Collins acknowledged that the purpose of the boat ride was to gain media attention, asserting “violence sells stories.” Defendant Fisher testified that defendant Beam had informed him that one of the persons on this boat ride was a Klansman involved in the Greensboro, South Carolina shooting during which members of the Communist Workers Party were killed during a confrontation with members of the Ku Klux Klan.

Members of the class who testified by deposition also expressed fear because of the presence of the shrimp boat loaded with robed and armed Klansmen. Colonel Nam Van Nguyen testified that he was especially frightened by the weapons that were carried by the persons on the boat and the figure that was hanging in effigy on the boat' (Nam Depo. at 54). He also testified that the boat came right to his dock and stopped there for about four or five minutes and someone on the boat gestured toward his house (Nam Depo. at 55). Colonel Nam’s sister-in-law, Phuong Pham, was present in his house when the boat approached and she saw persons wearing white robes. This so frightened her that she took her infant niece and ran from the house to a nearby relative’s home. Although Miss Pham had previously lived with Colonel Nam, since this incident, she testified that she is too fearful to spend the night in that house. (Pham Depo. at 7-11)

Mr. Jerry Walzel, State Game Warden for the Texas Department of Parks and Wildlife testified that “fortunately” he was not on duty on the day of the boat ride; fortunate because if he had been in the area, undoubtedly he would have received a complaint of possible violations of water safety regulations and if he had tried to board the boat it would have been “like throwing a spark on gasoline.” He explained that he would be the spark and the armed Klansman the gasoline. In his opinion, the presence of armed Klansmen aboard shrimp boats would cause violence. That view was concurred in by the Chief of Police of the City of Seabrook. R. W. Kerber testified that he did not expect violence at the opening of the fishing season on May 15, 1981 because there had been no violence the previous year, but admitted that based on his 27 months service as the Chief of Police with extensive contacts with members of the community, he would have no doubt that Vietnamese fishermen would be fearful if there is Klan presence on May 15.

Chief Kerber testified further that the tension between Vietnamese and American fishermen did not stem solely from fishing conflicts. According to Chief Kerber, some American fishermen believe there are just too many Vietnamese people in Kemah-Seabrook and therefore these individuals will only be satisfied when some of the Vietnamese leave the area.

Mr. Louis Beam, the Grand Dragon of the Knights of the Ku Klux Klan of Texas testified about the history of his organization. Mr. Beam stated that the Knights of the Ku Klux Klan of Texas opened a public *1003information center in Pasadena, Texas in 1975. Prior to that time, he originally joined the United Klans of America in and about April of 1969 immediately after returning from Viet Nam. (Beam Depo. p. 12) According to Mr. Beam’s testimony, the United Klans of America was “destroyed” by “government subversion” in 1971. Consequently, in 1973, Mr. Beam helped organize the Original Ku Klux Klan in the state of Texas (hereinafter referred to as the “Original Klan”). (Beam Depo. p. 13)

At trial, Mr. Beam testified that the Original Klan received permission from now former Grand Dragon of Louisiana, Robert W. Fuller, to use the Original Ku Klux Klan of Louisiana’s charter. Mr. Beam testified that although the aims of the Louisiana and Texas organizations were different, the Original Klan was incorporated under the laws of Louisiana.

Sometime in late 1974 or early 1975 Mr. Beam advised all the members of the Original Ku Klux Klan of Texas to withdraw their membership from that Klan and affiliate themselves with David Duke’s Knights of the Ku Klux Klan out of Metairie, Louisiana (hereinafter referred to as “the Knights”). Mr. Beam subsequently abandoned the charter the Original Klan had operated under and adopted the charter utilized by the Knights. The Knights of the Ku Klux Klan is a national organization and David Duke’s group is incorporated under the laws of Louisiana. The Texas Knights of the Ku Klux Klan, of which Mr. Beam is the Grand Dragon, is an unincorporated association. Mr. Beam testified that the goals and objectives of the Texas Knights of the Ku Klux Klan are consistent with those of the Knights. However, he stated he felt the Texas Klan had some unique goals which were not reflected in the national organization.

Mr. Beam refused to reveal the names of the current officers of the Texas Knights of the Ku Klux Klan (Beam Depo. p. 15), and ordered destroyed all records which contained any names of the members of the organization.

The record is replete with provocative statements made by various defendants in this action. Defendant David Collins testified by way of deposition and reaffirmed at trial that he planned to have an armed Klansman on his boat on May 15, 1981. (Collins Depo. at 32, 33) Jim Craig owner of the Old Harbor Seafood House testified that he has 43 boats owned by Vietnamese fishermen docked at his establishment, referred to as the “Saigon Harbor”. He testified about a conversation during the Fall of 1980 with defendant Fisher. According to Mr. Craig, Mr. Fisher told him to “watch your boats — they’re easy to burn.” At trial Mr. Fisher testified that Mr. Craig’s memory of the conversation was better than his and did not deny making this statement.3

It is uncontroverted that defendant Fisher stated that it would not bother him if the Klan burned all of the [Vietnamese] boats; further adding that the Klan were the only ones with the courage of their convictions. He added that a certain number of Vietnamese boats would have to be taken out of the water and destroyed. At the rally on February 14, 1981, defendant Fisher publicly stated that “we’re going to help [Vietnamese fishermen] to control themselves.” At trial defendant Fisher equivocated with respect to some of the statements that were attributed to him. For example, he was quoted by the press as saying that he planned to have a squadron of the American fishermen trained at the Klan’s paramilitary training camp and that he currently had a group of 50 to 60 American fishermen in training. When confronted with this statement, Mr. Fisher responded that he was “lying” to the press. Mr. Fisher testi*1004fied that it was “possible” that he had stated that anyone who traded or did business with or aided or assisted Vietnamese were his enemies. However, defendant Fisher did not deny announcing that his “organization” would put armed men on the boats on May 15, 1981 if requested. (Fisher Depo. at 94) It should be noted that a few of these statements were made during the taking of depositions on or about May 2, 1981 and when Mr. Fisher testified on or about May 11 and 12, he admitted making those statements but said that he no longer felt that way.

A woman who lives in the Galveston Bay area had allowed a Vietnamese fisherman to use one of her docks for approximately two years. She testified that in January, 1981 she received a card in the mail, signed by the Knights of the Ku Klux Klan which read: “You have been paid a ‘friendly visit’ do you want the next one to be a ‘real one.’ ” She also received three threatening phone calls. The first asked if she knew where her children were; the second was a threat to burn her boat; the third, stated that she would die that night. Mr. Dang, a Vietnamese fisherman, testified that approximately four weeks ago an American pointed a gun at him while he was on his shrimp boat. Miss Do Thi Doi who is a shrimp seller and married to a Vietnamese fisherman testified that six weeks ago two American men drove up in a truck and pointed a gun at her. She testified that unless there is some solution to the conflict between the American fishermen and the Vietnamese fishermen her husband will not take out their shrimp boat on May 15, 1981 because she is afraid that he will be killed.

The plaintiffs have alleged that defendants Beam and the Knights of the Ku Klux Klan have operated one or more military or paramilitary training camps in the State of Texas in violation of Tex.Rev.Civ.Stat.Ann., art. 5780, § 6 (Vernon). The plaintiffs introduced a videotape depicting defendant Beam instructing persons dressed in military type uniforms in the art of psychological warfare, ambush and counter ambush, reconnaissance patrol and other types of military movements. (Plaintiffs’ Exhibit 35)4 Defendant Beam has referred to the group of persons who will receive his training as the “Texas Emergency Reserve.” He testified that in addition to civilians, he trained persons who were currently members of the armed forces. The Texas Emergency Reserve has a flag which it uses as an emblem of its organization. A witness with considerable military experience testified that after viewing the entire film footage (approximately four hours of Beam’s training sessions) he considers that Beam is training a viable military organization, for it has a command structure, has discipline and is being trained to act as a military unit. In his opinion, this is not the type of training that is provided for survival, but is training to act in a combat role.

Most defendants testified at trial that any assertions they made regarding an explosive situation in the Kemah-Seabrook area and the potential for violence or the need for an armed Klan sea patrol on the opening day of shrimp season, May 15, were no longer valid. Defendants testified that the primary purpose for inviting the Ku Klux Klan to speak on the behalf of American fishermen, was merely an attempt to gain media attention of the plight of the American fishermen because state, federal, *1005and local officials had attempted to “whitewash” (Joseph Collins Depo. at 9), the complexity of the nature of the conflict between the American and Vietnamese fishermen. The defendants stated that over the past year and a half to two years they had attempted to present their concerns to Austin with the hope that the Texas legislature would enact legislation designed to curtail the number of boats allowed to fish in the Galveston Bay. According to the defendants, such legislation would significantly decrease the amount of tension that exists between the American and Vietnamese fishermen, and would diffuse any explosive situation that may exist in Kemah-Seabrook. Defendants testified that they understood that the Texas legislature had passed a “limited entry” bill, which was awaiting the Governor’s signature, and that another bill establishing a 2:00 p. m. curfew for fishing in the Bay was to be passed shortly by the Legislature. Defendants testified that the existence of this legislation had considerably lessened the American fisherman’s concerns about over fishing in Galveston Bay and therefore they did not anticipate any violence or threats of intimidation to occur when the May 15th shrimping season opened.

Mr. Ken King, a legislative assistant to State Representative Lloyd Criss, testified about the status of these two pieces of legislation.5 Mr. King testified that Governor Clements signed the “limited entry” bill on or about May 12, 1981 and that the bill took effect immediately. This bill places a two year restriction on the issuance of new shrimping licenses by severely limiting the number of persons eligible for shrimping licenses in 1982 and 1983. (Defendants’ Exhibit No. I)6 Mr. King was not familiar with the piece of legislation establishing a 2:00 p. m. curfew for fishermen. He testified that to the best of his knowledge that bill was in a House Committee and had been passed by the Senate. Mr. King could not offer any information as to when the “curfew” bill may be approved by the legislature and signed by the Governor.

Mr. King testified that the need for the “limited entry” bill was brought to the attention of Representative Criss by representatives from the Texas Shrimp Association and an association called Pisces. These organizations represented commercial fishermen throughout the Texas gulf coast area. The fishermen’s primary concern was that due to a dramatic increase in the issuance of new bay shrimp fishing licenses, it was becoming increasingly difficult to operate a profitable shrimping business in Galveston Bay.

Mr. King testified that the “limited entry” bill was initially drafted in early January 1981. Public hearings were held on the bill, however Mr. King testified he was unfamiliar with any of the defendants to this action and that he never had any conversation with defendant Fisher or any coalition of American fishermen from the Kemah-Seabrook area. Mr. King stated no public testimony was ever received regarding violations of fishing laws and customs by Vietnamese fishermen. Although Mr. King was responsible for drafting the “limited entry” bill he never discussed the issue of overcrowding in Galveston Bay with either Mr. Emery Waite, chairman of the government task force established to resolve conflicts between American and Vietnamese fishermen, or Mr. Charles Travis, executive director of the Texas Parks and *1006Wildlife Department. Mr. King testified that when this legislation was drafted he was unaware of any conflicts between American and Vietnamese fishermen in Galveston Bay. He had no knowledge that any threats had been made against Vietnamese or American fishermen or that members of the Ku Klux Klan had offered to provide American fishermen with armed Klansmen on May 15th. Mr. King’s only information about the “boat ride” was what he read in the newspaper.

STATUTORY VIOLATIONS

42 U.S.C. § 1985(8)

Plaintiffs have alleged that the defendants have conspired for the purpose of depriving them and their class equal protection of the laws and of equal privileges and immunities under the laws and that the defendants have acted out of a class-based animus against Vietnamese persons. (Complaint, ¶ VI, ¶ 2) In McLellan v. Mississippi Power and Light Company, 545 F.2d 919, 923 (5th Cir. 1977) (en banc), the elements that a plaintiff must allege and prove for a 42 U.S.C. § 1985(3) cause of action, are set forth as follows:

(1) The defendants must conspire

(2) For the purpose of depriving, either directly, or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and

(3) The defendants must act in furtherance of the object of the conspiracy, whereby

(4) One was (a) injured in his person or property or (b) deprived of having and exercising any right or privilege of a citizen of the United States.

There is some authority for the proposition that equal privileges and immunities under the laws portion of 42 U.S.C. § 1985(3) does not apply to aliens. See United States v. Biloxi Municipal School District, 219 F.Supp. 691, aff’d 326 F.2d 237 (5th Cir. 1963), cert. denied, 379 U.S. 929, 85 S.Ct. 324, 13 L.Ed.2d 341. However, at this stage of the proceedings, the Court need not decide this issue since it is clear that aliens are entitled to equal protection of the laws section of 42 U.S.C. § 1985(3). See Doe v. Plyler, 628 F.2d 448 (5th Cir. 1980); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Certainly, state action is not required, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967). In order to demonstrate a violation of the equal protection of laws section, it must be demonstrated that the plaintiffs have been subjected to racial or other class-based invidious discrimination by the conspirators’ actions. The actions of the defendants’ conspiracy must demonstrate a violation of some law, independent of § 1985(3).

The defendants argue that there has been no conspiracy established. First, they would suggest that the American Fishermen’s Association is not an organization but consists of only one person, e. g., defendant Eugene Fisher. That defendant indeed testified that he is an organization of one. However, he admitted that he had collected funds allegedly for the purpose of forming an organization, that he had expended funds in furtherance of the objective of this organization and that on at least one occasion he had a meeting with various American fishermen to discuss the objective of this organization which obstensibly was to file a lawsuit against the federal government. Moreover, in a press release issued by the defendant one day after this lawsuit was filed both Joseph and David Collins as well as Eugene Fisher were named as officers of the organization. Regardless of whether there was in fact a formerly established organization entitled the American Fishermen’s Coalition or an organization known by another name consisting of American fishermen which was established or attempted to be established by defendant Fisher, it is clear that the named defendants have acted together and the evidence establishes that those actions have had the effect of depriving the plaintiffs of their equal protection of the laws. The specific *1007laws that this Court finds have been violated by the defendants will be discussed herein.

42 U.S.C. § 1986

The plaintiffs have also alleged that the defendants have violated their rights by engaging in conduct made unlawful under 42 U.S.C. § 1986. Section 1986 is a companion to § 1985. It creates a cause of action against “[e]very person who, having knowledge that any of the wrongs conspired to be done, and mentioned in [§ 1985], are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so.” See Dowsey v. Wilkins, 467 F.2d 1022, 1026 (5th Cir. 1972). Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975).

The rights protected under § 1986 are those rights which are safeguarded under § 1985; no claim lies under § 1986 except on the basis of a valid claim under § 1985. By its language, § 1986 extends protection to “the party injured” and this is construed the same way the equivalent term in § 1985 is construed. Aliens are protected under § 1986, and since the language authorizes suit against “every person” there is no requirement of state action or color of law under § 1986. 1 C. Antieau, Federal Civil Rights Acts, §§ 281-282 (2d Ed. 1980).

The testimony elicited at trial clearly established that the defendants had knowledge of the wrongs conspired to be done, and neglected to aid in preventing the commission of these wrongs. David Collins testified that he informed James Stanfield that a “boat ride” had been scheduled and he solicited Stanfield’s assistance in inviting people to participate on the boat ride. Mr. Beam testified that he was notified of the boat ride on the morning of its departure. Mr. Beam stated he was informed that members of the Ku Klux Klan planned to participate in the “boat ride” and he knew these members planned to wear their robes and carry semiautomatic weapons. Although Mr. Beam admonished members of the Klan not to use violence, he did not attempt to dissuade them from joining the boat ride. Both Mr. Stanfield and Mr. David Collins participated fully in the boat ride.

The evidence establishes that all of the defendants were aware that Louis Beam and the Knights of the Ku Klux Klan had been invited to lend their support to the efforts of American fishermen to see a reduction in the number of Vietnamese fishing boats in the Kemah-Seabrook area. Moreover, all of the defendants had knowledge that Louis Beam had been invited to speak at a rally held in Santa Fe, Texas on February 14, 1981 in which he stated that the Klan may have to “take laws into our own hands” if the presence of Vietnamese fishermen in the Kemah-Seabrook area had not been decreased by May 15, 1981.

42 U.S.C. § 1981

Plaintiffs have alleged that the defendants’ actions have denied the plaintiff the same right to make and enforce contracts as is enjoyed by white persons, and have further deprived plaintiffs of the full and equal benefit of laws and proceedings for the security of persons, as is enjoyed by white persons, in violation of 42 U.S.C. § 1981.7 (Complaint, ¶ IX). When aliens are the victims of racial or other forms of discrimination actionable under § 1981, they have standing to sue under this section. Takahashi v. Fish & Game Co., 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974), reh. den. 503 F.2d 567; Spiess v. C. Itoh & Co., 408 F.Supp. 916 (S.D.Tex.1976).

*1008Section 1981 is constitutionally supported by the implementing of clauses of the Thirteenth and Fourteenth Amendments. McDonald v. Santa Fe Trail Transportation Co., 421 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), on remand 540 F.2d 219 (5th Cir.); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), later app. 569 F.2d 1294 (4th Cir.), cert. denied, 439 U.S. 927, 99 S.Ct. 311, 58 L.Ed.2d 320. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436, 88 S.Ct. 2186, 2201, 20 L.Ed.2d 1189 (1968) the Supreme Court indicated that the Civil Rights Act of 1866, which was the forerunner of § 1981, was designed “to prohibit all racial discrimination, whether or not under color of law ...” and as such was within the constitutional power of Congress under the Thirteenth Amendment. The rationale of the Jones case, which authorized a private cause of action for discrimination in the sale or rental of property under 42 U.S.C. § 1982, has been followed in actions under 42 U.S.C. § 1981, Penn v. Schlesinger, 490 F.2d 700, 703 (5th Cir. 1973) cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976); Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011, 1016 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 1099 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971). Since there is no “state action” or “color of law” requirement under 42 U.S.C. § 1981 private citizens are proper defendants in suits arising out of purely private relationships. Id. See also: Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied, 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d. 785 (1972).

Section 1981 protects a panoply of individual rights the primary one being the right to contract to earn a living. E. g., Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-1720, 44 L.Ed.2d 295 (1975); Penn v. Schlesinger, supra, 490 F.2d 702; Guerra v. Manchester Terminal Corp., supra; Boudreaux v. Baton Rouge Marine Contracting Co., supra. In order to demonstrate a violation of § 1981, it is only necessary that the plaintiffs show that they were unlawfully denied, by the defendants, one of the rights protected by this statute. 1 C. Antieau, Federal Civil Rights Acts §§ 32, 33 (2d Ed. 1980).

The plaintiffs argue that the commercial fishing business operates by contract and that the plaintiffs’ claims of interference with their ability to participate in this business, and in particular with their ability to make commercial arrangements with dock owners, gives rise to a denial of freedom of contract claim under 42 U.S.C. § 1981. The Court is of the opinion that the plaintiff class has established a substantial likelihood of success on the merits of this cause of action.8

Section 1981 also provides that “[a]ll persons . .. shall have the same right ... to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” It is well established that the guarantee “to full and equal benefit of all laws and proceedings for the security of persons and property” is a distinct and separate right from the right “to make and enforce contracts.” Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). It is well established that the “full and equal benefit of all laws” guarantee of § 1981 applies to private action. See Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894, 901 (E.D.Mo.1969). The United States Court of Appeals for the Third Circuit however, has held that the concept of state action is implicit in the “equal benefit” clause of § 1981. Mahone v. Waddle, 564 F.2d 1018, 1029-1030 (3rd Cir. 1977), cert. denied, 438 U.S. 904, 98 S.Ct. *10093122, 57 L.Ed.2d 1147 (1979) (dictum). However, at this stage of the proceedings, the Court need not decide this issue since it is clear that the plaintiffs are entitled to the guarantee of the right “to make and enforce contracts” clause of 42 U.S.C. § 1981.

15 U.S.C. § 1

The plaintiffs allege that the defendants’ actions constitute a conspiracy to prevent the plaintiffs from engaging in the commercial fishing business, a business in interstate commerce, and further have conspired to prevent other persons from trading with the plaintiffs in this business. The plaintiffs allege that by so doing the defendants have injured and will continue to injure the plaintiffs in their business, and have thereby violated title 15 U.S.C. § 1 of the Sherman Anti-Trust Act. (Complaint, ¶ 11, § 2).

Section 1 of the Sherman Act provides that “every contract, combination ..., or conspiracy, in restraint of trade or commerce among the several states, ... is declared to be illegal.” 15 U.S.C. § l.9 Section 1 of the Sherman Act is the broadest in scope of the major antitrust acts, and was designed to protect free and unfettered competition in interstate commerce 1 Von Kalinowski, Antitrust Laws and Trade Regulation, § 4.01 (1980). A restraint will be found to violate § 1 if the following factors are present: (1) there are at least two persons acting in concert; (2) the restraint restrains trade or commerce; (3) the trade or commerce is trade or commerce among the several states or within foreign nations; and (4) the restraint is unreasonable. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); Aviation v. United Technologies, 568 F.2d 1186 (5th Cir. 1978).

Under the Sherman Act any unreasonable restraint that occurs in the flow of interstate commerce or that affects interstate commerce is subject to the provisions of § 1. The terms “trade” and “commerce” have been broadly construed by the courts. 1 Von Kalinowski, Antitrust Laws and Trade Regulation, § 4.02 (1980). Practically every commercial activity that is in the flow of or affects interstate commerce constitutes the requisite trade or commerce within the meaning of § 1. See McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980). It has been uncontested that the commercial fishing business in Galveston Bay is clearly a part of, and substantially affects interstate commerce within the meaning of § 1 of the Sherman Act.

Unreasonable restraints fall into two categories, (a) those that are regarded as so inherently anti-competitive that they are illegal per se; and (b) those which are found to illegally suppress competition under a “rule of reason” analysis. The elements of a cause of action for an unreasonable restraint of trade under the “rule of reason” have been succinctly stated in Roberts Waikiki U-Drive v. Budget Rent-A-Car, 491 F.Supp. 1199 (D.Haw.1980). They are: 1) an agreement among two or more persons; 2) which is intended to harm or unreasonably restrain competition and 3) which actually causes injury to competition. Under the “rule of reason,” even though a restraint may have a tendency to suppress competition it may have certain redeeming virtues which, under appropriate circumstances, would not constitute a violation under § 1 of the Sherman Act.

It has been repeatedly stated that the anti-trust laws protect “competition not competitors” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). The anti-trust laws do not protect an individual competitor from individual injury to his business. Instead, the anti-trust laws only become operable when there has been *1010a lessening of competitive conditions in the relevant market. United States v. General Dynamics Corp., 415 U.S. 486, 494 — 498, 94 S.Ct. 1186, 1192-1194, 39 L.Ed.2d 530 (1974). Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979). A lessening of competitive conditions, can be shown if the number of competitors is reduced appreciably. Eastern States Retail Lumber Dealers v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490 (1914). The Supreme Court has stated that a Sherman Act § 1 civil violation may be established by proof of “either an unlawful purpose or an anticompetitive effect. United States v. United States Gypsum Co., 438 U.S. 422, 436, n. 13 [98 S.Ct. 2864, 2873, n. 13, 57 L.Ed.2d 854] (1978); see United States v. Container Corp., 393 U.S. 333, 337 [89 S.Ct. 510, 512, 21 L.Ed.2d 526] (1969); United States v. National Assn. of Real Estate Boards, 339 U.S. 485, 489 [70 S.Ct. 711, 714, 94 L.Ed. 1007] (1950); United States v. Socony Oil Co., supra, 310 U.S. [150] at 224-225, n. 59 [60 S.Ct. 811 at 844-845, n. 59, 84 L.Ed. 1129] [1940].”10 McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 243, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980).

The plaintiffs allege that the defendants have conspired to force the Vietnamese fishermen class to terminate or at the very least curtail their commercial fishing business in the Galveston Bay area. The plaintiffs assert that the defendants have attempted to intimidate them into selling off sixty percent of their shrimping boats and by so doing have acted to eliminate or reduce competition for the American fishermen in the Kemah-Seabrook area. (Complaint, ¶ V, § 2).

It is well established that joint collaborative action designed to eliminate a class of competitors ready and able to compete is a violation of § 1 of the Sherman Act. United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 831, 84 L.Ed. 1129 (1940). Section 1 has been held to apply to an unlawful boycott occasioned by coercion, threats and intimidation. Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488 (1908). Moreover, courts have found that foreclosing and eliminating competitors from a substantial portion of the market is per se illegal. See Streiffer v. Seafarers Sea Check Corp., 162 F.Supp. 602 (E.D.La.1958).

The plaintiffs argue that the actions of the defendants constitute per se violations of the Sherman Act because their actions have a “pernicious affect on competition and lack . . . any redeeming virtue.” Northern Pacific Railroad Company v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Although the facts adduced at the hearing may not have established a per se illegal restraint such as price fixing or group boycott, the evidence did reveal that the defendants agreed to engage in conduct which had the stated intent of eliminating a class of competitors from the commercial fishing business in Galveston Bay. This type of anticompetitive conduct is not likely to be condoned under Section 1 of the Sherman Act. Therefore, the plaintiffs have shown a substantial likelihood of success on the merits of their Sherman Act § 1 claim.

*1011TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIPS

The plaintiffs have alleged that the actions of the defendants constituted the tort of intentional interference with contractual relationships, i. e., interference with their commercial fishing business. (Complaint, ¶ XIII).

It is well established that a wrongful or malicious interference with the performance or the formation of a contract or the right to pursue a lawful occupation constitutes a tort for which damages may be recovered. See 86 C.J.S. Torts, § 43 (1954); Restatement of Torts § 766 (1939). Texas courts recognize a cause of action for improper interference with contractual relationships. Clements v. Withers, 437 S.W.2d 818, (Tex.1969). Common law has well established that the reasonable expectancy of a prospective contract is a property right to be protected from wrongful interference in the same sense as an existing contract is protected. Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952 (5th Cir. 1975) [cites omitted]. Under Texas law a party has the right to be free from malicious interference with the right to conduct negotiations that have a reasonable probability of resulting in a contract. Martin v. Phiilips Petroleum Co., 455 S.W.2d 429, 435 (Tex.Civ.App.1970) rehearing denied. Texas courts have also recognized a cause of action for tortious and wrongful interference with advantageous business relationships. Cooper v. Steen, 318 S.W.2d 750, 757 (Tex.Civ.App.1958).

The elements of the tort of wrongful interference with a prospective contract right are as follows: the plaintiff must show that (1) there was a “reasonable probability that he would have entered into a contractual relationship; (2) the defendant acted maliciously by intentionally preventing the relationship from occurring with the purpose of harming plaintiff; (3) the defendant was not privileged or justified, and (4) actual harm or damage occurred as a result.” Duckworth v. Michael L. Field, supra at 956 [cites omitted]. As the plaintiffs have stated, the commercial fishing business is essentially contractual in nature. Moreover, the commercial fishing business is a lawful occupation which the plaintiffs have a right to pursue without wrongful interference on behalf of the defendants. The evidence adduced at the hearing clearly established that the defendants acted intentionally to impede and prevent the plaintiffs from pursuing their lawful occupation. As a result of the defendants’ actions, many members of the plaintiff class have agreed to sell their shrimping boats and many have been reluctant to pursue their lawful occupation. In light of these facts and the Court’s earlier discussion of 42 U.S.C. § 1981, there is a substantial likelihood that the plaintiffs will prevail on this tort claim.

OTHER CAUSES OF ACTION

The plaintiffs have asserted as additional bases for their injunctive relief, Section 1982 of Title 42 of the United States Code; the Thirteenth and Fourteenth Amendments to the United States Constitution; Section 2 of the Sherman Act, 15 U.S.C. § 2; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962 and 1964; and the common law torts of assault, trespass to personal property; and the intentional infliction of emotional distress (Original Complaint ¶¶ IX, V, XI, XII, XIII). In addition, the plaintiffs allege in their Second Amended Complaint that defendants Louis Beam and the Knights of the Ku Klux Klan have violated their rights under Tex.Rev.Civ.Stat.Ann., art. 5780 § 6 (Vernon). The Court finds, for the following reasons, that the plaintiffs have not shown a substantial likelihood of success on the merits of these causes of action. On the final day of the hearing the plaintiffs’ attorneys informed the Court that they were not going to pursue a cause of action under 42 U.S.C. § 1982 or the Thirteenth and Fourteenth Amendments. Therefore these claims will be dismissed.

Except for the 42 U.S.C. § 1982 claim and the claims under the Thirteenth and Fourteenth Amendments, the remaining additional causes of action are not dismissed at *1012this time, but will be considered at a trial on the merits.

42 U.S.C. § 1982

Section 1982 of Title 42 of the United States Code provides that all citizens of the United States have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sale, hold and convey real and personal property. By its language, § 1982 is available only to “citizens”, thus the plaintiff class cannot sustain a cause of action under this statute.

Fourteenth Amendment

The plaintiffs also allege that the defendant deprived the plaintiff class of their right to the privileges and immunities of citizenship, and to the equal protection of the laws, guaranteed by the Fourteenth Amendment. It is well established that a cause of action under the Fourteenth Amendment requires the existence of state action. The plaintiffs have failed to establish, or even assert, that the actions of the defendants were done under color of state law. Therefore, the plaintiff class cannot maintain a direct cause of action under the Fourteenth Amendment of the United States Constitution.

Thirteenth Amendment

The plaintiffs alleged that their right to be free from the badges and incidence of slavery, protected by the Thirteenth Amendment of the United States Constitution, and their right to interstate travel were violated by the defendants.

The Thirteenth Amendment gives power for Congress to create private rights of action versus private defendants who deprive individuals of basic rights of free men (“badges and incidents of servitude”). This private right of action is enforceable through 42 U.S.C. § 1981, Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), and § 1985(3). Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). However, these statutes define the scope of the cause of action; one cannot try for broader scope by suing under the Thirteenth Amendment itself. See e. g., Alma Society v. Mellon, 601 F.2d 1225 (2d Cir. 1979).

This Court is unaware of any authority which would support the proposition that a direct cause of action exists under the Thirteenth Amendment of the Constitution. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Supreme Court held that direct causes of action existed under the Fourth and Fifth Amendments respectively. The facts of this case, however, differ significantly from those in Bivens and Davis. These two decisions, therefore, are of limited value in this case.

Since the plaintiffs have dropped their claim for relief directly under the Thirteenth Amendment, the Court need not consider whether such a cause of action actually exists.

The Common Law Tort of Assault

The plaintiffs also alleged that the defendants had committed the common law torts of assault, trespass to personal property, and the intentional infliction of emotional distress. The cause of action for the tort assault recognizes a plaintiff’s right to be free from apprehension of a harmful or offensive contact. Any act of such a nature as to excite an apprehension of a battery may constitute an assault. W. Prosser, The Law of Torts, (4th Ed. 1971), § 10. It is an assault to hold a weapon in a threatening position, or to surround an individual with a display of force. Id. at 38. As a rule, however the defendant’s act must amount to an offer to use force, and there must be an apparent ability and opportunity to carry out the threat immediately. There is no assault where the defendant is too far away to do any harm. With respect to weapons, when the defendant presents the weapon in such a manner as to indicate that it may immediately be made ready for use, the threat becomes sufficiently imminent to constitute an assault. Id. at 39.

*1013Under Texas law, a person commits an assault if he intentionally or knowingly threatens another with imminent bodily injury. V.T.C.A., Penal Code § 22.01. The definition of assault is the same whether it is the subject of a criminal prosecution or of a civil suit for damages. Hogenson v. Williams, 542 S.W.2d 456 (Civ.App.1976). An assault can only be committed when the act is coupled with the ability to commit a battery. For example, if the parties are too far separated for the accused to commit violence with the means used, there is no assault. Marthall v. State, 34 Tex.Cr.R. 22, 36 S.W. 1062 (1896).

At the hearing, Miss Do Thi Toi testified that two American men pointed a gun at her. Mr. Dang, another member of the plaintiff class, also testified that an American pointed a gun at him while he was on his shrimp boat. Although these acts may constitute an assault, none of the actions of these Americans could be attributed directly to the defendants.

Several members of the plaintiff class also testified that when they witnessed the “boat ride” on March 15, 1981 they became frightened. Although there were several armed persons on this “boat ride”, there was no testimony that any of these individuals were in close enough proximity to any of the plaintiffs to actually commit a battery. It is certainly clear that the actions of the defendants created an atmosphere conducive to the commission of violence and that such violent acts were the foreseeable natural cause of the calls for violence, especially those of defendants Beam and Fisher and acquiesced in by the remaining defendants. At this stage of the proceedings, the Court will not foreclose the plaintiffs from introducing such evidence and further evidence of a direct connection between the defendants and actual acts of assault and battery; however, insufficient evidence has been adduced to demonstrate a likelihood of success on the merits and therefore, the request for preliminary injunctive relief will be denied.

The Intentional Infiietion of Emotional Distress

The plaintiffs’ Original Complaint also sought relief from the defendants’ alleged intentional infiietion of emotional distress. The elements of a prima facie case of this intentional tort are: 1) an act by the defendant(s), 2) intent, 3) extreme and outrageous conduct, 4) causation and 5) damages. See generally, W. Prosser, The Law of Torts, § 12 (4th Ed. 1971).

The evidence adduced at trial demonstrated a substantial likelihood that the “boat ride” constituted extreme and outrageous conduct on the part of defendants David Collins, James Stanfield and several, as yet, unidentified members of the Ku Klux Klan. Colonel Nam’s young sister-in-law, Phuong Pham, testified that she was so frightened by the sight of armed and robed Ku Klux Klan members, on the “boat ride,” that she ran from Colonel Nam’s home and is now afraid to spend the night there. Ordinarily under Texas law, damages for mental anguish and fright are not recoverable unless they result from or are accompanied by physical injury. See Pargas of Longview, Inc. v. Jones, 573 S.W.2d 571, 574 (Tex.Civ.App.1978). However, Texas plaintiffs have a damage action for mental/emotional suffering, unaccompanied by physical injury, “when the wrong complained of is a willful one intended by the [defendant] to produce mental anguish or from which such result should be reasonably anticipated as a natural consequence.” Stafford v. Steward, 295 S.W.2d 665, 667 (Tex.Civ.App.1957) [assault and battery case]. Here, the plaintiffs produced sufficient evidence to establish a substantial likelihood that the defendants intended, or at least could have reasonably anticipated that the “boat ride” would cause plaintiff class members severe emotional/mental distress.

Nevertheless, the facts of this case as well as the governing law need to be more fully developed for the plaintiffs to show a likelihood of success. The plaintiffs have failed to cite any Texas authority allowing a damage action for mental anguish, *1014unaccompanied by some other intentional tort such as trespass or assault. Moreover, the evidence adduced at the hearing failed to establish that any member of the plaintiff class suffered a mental and/or emotional injury severe enough to maintain a cause of action for the intentional infliction of emotional distress. Phuong Pham is not a member of the plaintiff class. The plaintiffs, therefore, have not demonstrated a substantial likelihood that any of the class members would be entitled to recovery of damages for Ms. Pham’s emotional distress. See Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.1978).

Trespass to Personal Property-

The plaintiffs have also alleged that the defendants have committed the tort of trespass to chattels. (Complaint ¶ XIII). It is well established that it is a trespass to damage or destroy goods in the possession of another. See The Law of Torts, supra § 14. Testimony at the hearing established that in or about January and March of 1981 three Vietnamese owned and/or operated shrimp boats were destroyed by arson. However, there was no testimony to link any of the defendants with this event. Therefore, the plaintiffs have failed to carry their burden with respect to this cause of action.

RICO

The plaintiffs assert as an additional basis for their injunctive relief the civil remedies provided in the Racketeer influenced and Corrupt Organizations Act, 18 U.S.C. § 1964. Section 1964(a) establishes jurisdiction in district courts of the United States to restrain violations of § 1962. § 1962(b) orovides as follows:

It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

Section 1962(c) provides as follows:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

The Court finds, for the following reasons, that the plaintiffs have not shown a substantial likelihood that they will be successful on the merits of a cause of action under the RICO statute.

“The two crucial elements which [must be] prove[n] to sustain a conviction under § 1962 are the defendants’ association with an ‘enterprise’ and the existence of a ‘pattern of racketeering activity.’ ” United States v. Morris, 532 F.2d 436, 441 (5th Cir. 1976). The plaintiffs have adequately demonstrated that the defendants are associated with an “enterprise” as defined under § 1961(4). The plaintiffs have not, however, established that there was in this case a “pattern of racketeering activity” within the meaning of RICO. Under § 1961(5) there must be at least two acts of racketeering activity, occurring within ten years of each other, in order for there to be a pattern of such activity. “Racketeering activity” is defined in § 1961(1), it includes four broad categories of crimes: (A)ny of several specified acts or threats not specifically alleged herein, (B) any act which is indictable under several specified sections of title 18 U.S.C., (C) acts which are indictable under title 29 U.S.C. involving union funds or loans to labor organizations, or (D) federal offenses involving narcotics or other dangerous drugs. 18 U.S.C. § 1961(1). There has been no substantial showing of any “pattern of racketeering activity” within the meaning of these subsections. The plaintiffs have not alleged any violation of a specific statute identified in this subsection as racketeering activity.

ARTICLE 5780(6)

In their Second Amended Complaint, plaintiffs added a further ground for *1015relief, based on violation of Tex.Rev.Civ. Stat.Ann., art. 5780 § 6 (Vernon). This statute essentially prohibits the formation of private military organizations. The plaintiffs introduced considerable evidence which indicates that defendant Louis Beam and the Knights of the Ku Klux Klan operate private paramilitary training camps. However, the evidence could not establish exactly where this “camp” was located or whether or not it was still in operation. The language of the statute implies that only those military organizations operating within a “town or city” is prohibited. Here, there was inconclusive evidence as to where defendant Beam’s paramilitary camp was located.

This statute has never been interpreted by a Texas state court. Therefore, such issues as the constitutionality of the statute and the extent of this court’s authority to enjoin a violation of the statute is better left to be considered at a full trial on the merits.

Section 2 of the Sherman Anti-Trust Act

Finally, the plaintiffs’ Original Complaint alleges that the defendants have conspired and attempted to monopolize the shrimping business for the benefit of American fishermen and thus have injured the plaintiffs in violation of § 2 of the Sherman Act. 15 U.S.C. § 2. (Complaint ¶ XI) Section 2 of the Sherman Act provides that any person “who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade of commerce among the several States, or with foreign nations,” is guilty of a crime. Section 2 proscribes monopolization, i. e. the possession of monopoly power in the relevant market coupled with an intent to exercise that power. Antitrust Laws & Trade Regulation, supra at § 7.01[1]. The two essential elements of monopolization are monopoly power and intent. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). Monopoly power has been defined as the power to fix or control prices or to exclude or control competition. United States v. E.I. DuPont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1004, 100 L.Ed. 1264 (1956); American Tobacco Company v. United States, 328 U.S. 781, 811, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). The existence of monopoly power depends upon two factors: (1) a relevant market within which the quantum of power is to be measured, and (2) a degree of power which will be sufficient to control prices or competition. See E.I. DuPont de Nemours & Co., supra, 351 U.S. at 393, 76 S.Ct. at 1006. In order to determine whether monopoly power exists, the relevant market must first be defined, then the power of the defendant must be measured in light of the competitive conditions in such market. Id.

In addition to actual monopolization, § 2 makes it unlawful to attempt to monopolize, or to combine or conspire to monopolize. Anti-trust Laws & Trade Regulations, supra at § 7.01[1] p. 7 — 16. The attempt to monopolize which § 2 prohibits reaches the situation in which there is a “dangerous probability” of monopoly in a relevant market, coupled with a specific intent on the part of the prospective monopolist to fix or control prices or exclude competition.

Here, no evidence was offered to show that there was a strong likelihood that the defendants possessed the requisite degree of monopoly power in a relevant market. Therefore, the plaintiffs have failed to establish a strong likelihood of success on the merits with respect to an anti-trust violation of § 2 of the Sherman Act.

CONCLUSIONS

The defendants, Eugene Fisher, Louis Beam, and David Collins have admitted making statements which this Court considers to be intimidating. These uncontroverted provocative statements, coupled with such overt acts as the burning of a shrimp boat and cross at the February 14, 1981 rally, the March, 1981 “boat ride”, other cross burnings, the burning of Vietnamese owned and/or operated shrimp boats, and pointing pistols at members of the plaintiff *1016class and/or their family members11 convince this Court that the predictable and intended result of the defendants’ actions was to interfere with the rights of the plaintiff class. Moreover, as previously noted, the statements themselves constitute intimidation and have a substantial possibility of inciting others to engage in acts of violence and intimidation directed at the Vietnamese fishermen.

The Court has heard testimony from several defendants that certain provocative and threatening statements admittedly made by them should not, for one reason or another, be taken as an expression of their true feelings. These statements, say some of the defendants, were made only for effect, to impress or deliberately mislead the press, or merely for purposes of calling attention to the problems they perceived. The defendants assert that the recently enacted “limited entry” bill, discussed above, has quelled all tension between the American and Vietnamese fishermen. This legislation may indeed ease many of the problems once perceived by American fishermen. The Court, however, remains frankly skeptical of the wholesale reversal of positions taken, in some instances, only days before their repudiation in open court. As the United States Court of Appeals for the Fifth Circuit, quoting decision from a sister court, has eloquently observed,

“Such a last minute change of heart is suspect, to say the least. We recently had occasion to observe in Lankford v. Gelston, 364 F.2d 197, 203 (4 Cir. 1966), under somewhat different circumstances, that ‘protestations of repentenee and reform timed to anticipate or to blunt the force of a lawsuit offer insufficient assurance’ that the practice sought to be enjoined will not be repeated.” And in a different context we phrased it this way. “What has been adopted can be repealed, and what has been repealed can be readopted. We conclude, therefore, that the plaintiffs are entitled to have their injunction against state action depriving them of their constitutional rights, based on the record at the time the case was tried.”

Jenkins v. United Gas Corp., 400 F.2d 28, 33 n. 11 (5th Cir. 1968), quoting Cypress v. Newport News General & Nonsectarian Hosp. Assoc., 375 F.2d 648, 658 (4th Cir. 1967) (en banc).

Upon consideration of all the evidence adduced at the hearing, it is the opinion of this Court that the plaintiffs have met their burden of proving a substantial likelihood of success on the merits with respect to the following causes of action: 42 U.S.C. § 1981; 42 U.S.C. §§ 1985(3) and 1986; 15 U.S.C. § 1; and the Texas common law tort of tortious interference with contractual relationships.

The Court also finds that there is an existence of a substantial threat that the plaintiff class will suffer an irreparable injury, if the injunction is not granted. Moreover, the threatened injury to the plaintiff class outweighs the threatened harm that the injunction will cause the defendants, and the grantirig of the injunction will not disserve the public interest. See generally; Wright & Miller, Federal Practice & Procedure, §§ 2947, 2948.

It is well established that victims of discrimination suffer an inseparable injury regardless of actual pegjpniary damage. See, e. g., United States v. Hayes International Corp., 415 F.2d 1038, 1045 (5th Cir. 1969). See also Bean v. Southwestern Waste Management Corp., 482 F.Supp. 673, 677 (S.D.Tex.1979); Ethridge v. Rhodes, 268 F.Supp. 83 (S.D.Ohio 1967). Moreover, here the very ability of the plaintiff class to earn a living is being severely jeopardized by the defendants’ alleged unlawful actions. Clearly it is in the public interest to enjoin *1017self help tactics of threats of violence and intimidation and permit individuals to pursue their chosen occupation free of racial animus.