Watson v. Fort Worth Bank and Trust Brief Amicus Curiae in Support of Respondent

    No. 86-6139

In The

Gkmrt uf tty Intteli &Ut?B
October Term, 1987

Clara Watson,
Petitioner,

v.

Fort Worth Bank & Trust,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT

Robert E. W illiams
Douglas S. McDowell 
Edward E. Potter, P.C. 
Garen E. Dodge *

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

* Counsel of Record

W iL soN  -  Ep e s  P r in t in g  C o . ,  In c . -  7 8 9 - 0 0 9 6  -  W a s h in g t o n , d . c . 2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF CONTENTS___________________________  i

TABLE OF AUTHORITIES_______________________  iv

INTEREST OF THE AMICUS CURIAE____________  1

STATEMENT OF THE C A S E _____________________  3

SUMMARY OF ARGUMENT______________________  5

ARGUMENT______________________________________  7

I. THIS COURT SHOULD NOT APPLY THE 
DISPARATE IMPACT THEORY TO CLAIMS 
INVOLVING SUBJECTIVE EMPLOYMENT 
PRACTICES OR CRITERIA, BECAUSE THE 
DISPARATE TREATMENT THEORY IS
UNIQUELY SUITED TO SUCH CLAIMS____ 7
A. Subjective Practices, Such As The Promo­

tions Made By The Supervisors In This Case,
Are Based Upon The Intent And Judgment 
Of The Persons Applying Them__________  7

B. The Burdens Of Proof Under The Disparate
Treatment Theory Properly Focus Upon 
Alleged Intentional Discrimination In Sub­
jective Practices, While The Burdens Under 
The Disparate Impact Theory Are Most Suit­
able For Claims Involving The Discrimina­
tory Effect Of Facially Neutral Employment 
Practices_________________________________ 8

C. As Recognized In The Opinions Of This And
Other Courts, Because Discriminatory Intent 
Is The Central Focus Of The Treatment 
Theory, And Because Subjective Practices 
Are Inherently Intent-Based, Only The 
Treatment Theory Should Be Used To Ana­
lyze Claims That Subjective Employment 
Practices Are Discriminatory-------------------  11



11

1. Because Subjective Practices Are Intent-
Based, This Court Has Consistently Ap­
plied The Disparate Treatment Theory 
To Determine Whether Such Practices 
Violate Title V I I _____________________  11

2. Numerous Reasoned Decisions By Courts 
Of Appeals Also Have Recognized The 
Propriety Of Using Only The Treatment 
Theory To Analyze Subjective Employ­
ment Decisions, And Other Courts Have 
Required Plaintiffs To Prove Causation
At A Minimum_______________________  14

II. THIS COURT SHOULD NOT APPLY THE 
DISPARATE IMPACT THEORY TO ANA­
LYZE SUBJECTIVE EMPLOYMENT PRAC­
TICES BECAUSE, AS A PRACTICAL MAT­
TER, SUCH AN APPLICATION WOULD RE­
QUIRE INORDINATE EXPENDITURE UPON 
VALIDATION OF EMPLOYMENT CRI­
TERIA, IMPOSE AN INSURMOUNTABLE 
REBUTTAL BURDEN UPON EMPLOYERS,
AND IMPROPERLY ELIMINATE THE 
LEGITIMATE USE OF SUBJECTIVITY IN 
EMPLOYMENT DECISIONS_______________  18

III. THE UNIFORM GUIDELINES AND PROFES­
SIONAL STANDARDS DO NOT SUPPORT 
THE PROPOSITION THAT ALL SUBJEC­
TIVE DECISIONS, SUCH AS THE PROMO­
TION DECISIONS MADE HEREIN, CAN 
AND SHOULD BE VALIDATED, AND THIS

TABLE OF CONTENTS— Continued
Page

COURT SHOULD DECLINE TO SO RULE___ 23 
A. Introduction______________________________ 23



I l l

B. Because The Uniform Guidelines And Profes­
sional Standards Provide Technical Assist­
ance In The Administration Of Tests For 
Employee Selection, But Fail To Provide 
Meaningful Guidance In Assessing Many 
Promotion And Other Subj eetive Criteria,
They Do Not Support The Proposition That 
All Subjective Decisions Can And Should Be

TABLE OF CONTENTS— Continued
Page

Validated________________________________  24

CONCLUSION____________________________________  80

APPENDIX—Letter to Amicus from EEOC, Record 
Maintenance Requirements, Uniform 
Guidelines on Employee Selection Pro­
cedures (Nov. 20, 1987)_____________  la



IV

TABLE OF AUTHORITIES
Cases: Page

Albemarle Paper Co. v. Moody, 442 U.S. 405
(1975)  9,10,12,19

American Federation of State, County, and Munici­
pal Employees, AFL-CIO v. State of Washing­
ton, 770 F.2d 1401 (9th Cir. 1985)_____________ 3

Atonio v. Wards Cove Packing Co., Inc., 768 F.2d 
1120 (1985), en banc, 810 F.2d 1477 (9th Cir.
1987) ----------------------------------------------------------3,18,21

Bauer v. Bailor, 647 F.2d 1037 ( 10th Cir. 1981).__2, 17, 23
Bazemore v. Friday, 106 S.Ct. 3000 (1986 )________  3
Brewster v. Barnes, 788 F.2d 985 (4th Cir. 1986) _ 16
Carroll v. Sears, Roebuck & Co., 708 F.2d 183 (5th

Cir. 1983)___________________________________  15
Connecticut v. Teal, 457 U.S. 440 (1982) ___3, 9, 10, 13, 19 
Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) _ 17
Cunningham v. Housing Auth. of City of Opelousas,

764 F.2d 1097 (5th Cir.), cert, denied, 106 S.Ct.
530 (1985) _________________________________  15

Dothard v. Rawlinson, 433 U.S. 321 (1977)_______10, 12
EEOC v. Federal Reserve Bank, 698 F.2d 633 (4th 

Cir. 1983), rev’d on other grounds sub nom.
Cooper v. Federal Reserve Bank, 467 U.S. 867
(1984)----------------------------------------------------------  16

Emmanuel v. Marsh, 628 F. Supp. 564 (E.D. Mo.
1986), aff’d, Paige v. Marsh, No. 86-1282 (slip 
op.; available on Lexis) (8th Cir. Feb. 13, 1987) _ 7

Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978)-------------------------------------------------------3, 6, 9, 13

General Electric Co. v. Gilbert, 429 U.S. 125
(1976 )---------------------------------------------------------  12

Gilbert v. City of Little Rock, 722 F.2d 1390 (8th 
Cir. 1983), cert, denied, 466 U.S. 972 (1984)___ 16

Green v. USX Corp., 570 F. Supp. 254 (E.D. Pa.
1983), appeal pending, Nos. 86-1554 & 85-1568
(3rd Cir.) ---------------------------------------------------- 3, 17

Griffin v. Bd. of Regents of Regency Universities,
795 F.2d 1281 (7th Cir. 1986)________________ 21, 22

Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985) __ 18
Griggs v. Duke Power Co., 401 U.S. 424 (1971) 8, 9,

11-13,15, 19



V

Guardians Ass’n of New York City v. Civil Service,
630 F.2d 79 (2d Cir. 1980), cert, denied, 101
S.Ct. 3083 (1981)____________________________  29

Hamilton v. General Motors Corp., 606 F.2d 576
(5th Cir. 1979)______________________________  19

Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.
1981)_______________________________________  16

Hazelwood School Dist. v. United States, 433 U.S.
299 (1977) ___________________________________14,22

Hill v. Seaboard Coast Line R.R. Co., 767 F.2d 771
(11th Cir. 1985)_____________________________  2,23

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) _______________ 3, 8, 9, 10

Johnson v. Transportation Agency of Santa Clara
County, 107 S.Ct. 1442 (1987)_______________ 6, 22, 23

Local 28 of Sheet Metal Workers v. EEOC, 106
S.Ct. 3019 (1986)____________________________  22

Massarsky v. General Motors Corp., 706 F.2d 111
(3d Cir.), cert, denied, 464 U.S. 937 (1983)___  5,17

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)________________________________5, 9, 10, 13, 21

McRae v. General Dynamics, 774 F.2d 1171 (8th
Cir. 1985)__________________________________  5, 7

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) ___ 12
New York City Transit Authority v. Beazer, 440

U.S. 568 (1979)_____________________________  12
Page v. United States Industries, Inc., 726 F.2d

1038 (5th Cir. 1984)_________________________  15
Paige v. Marsh, No. 86-1282 (slip op.; available on

Lexis) (8th Cir. Feb. 13, 1987)_______________  8,16
Payne v. Travenol Laboratories, Inc., 673 F.2d 798

(5th Cir.), cert, denied, 459 U.S. 1038 (1982)__ 15
Peters v. Lieuallen, 746 F.2d 1390 (9th Cir. 1984) _ 18
Pouncy v. Prudential Insurance Co., 499 F. Supp.

427 (S.D. Tex. 1980), aff’d, 668 F.2d 795 (5th

TABLE OF AUTHORITIES— Continued
Page

Rogers v. International Paper Co., 510 F.2d 1340 
(8th Cir. 1975)_____________________________ 19



VI

Rossini v. Ogilvy & Mather, Inc., No. 85-7776 (2d
Cir. Aug. 14, 1986)__________________________  16

Rowe v. Cleveland Pneumatic Co., Numerical Con­
trol, 690 F.2d 88 (6th Cir. 1982)______________ 18

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984),
cert, denied, 471 U.S. 1115 (1985 )____________  18

Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980)__  17
Spaulding v. University of Washington, 740 F.2d 

686 (9th Cir.), cert, denied, 469 U.S. 1036
(1984) ______________________________________  3

Stastny v. Southern Bell Telephone & Telegraph
Co., 628 F.2d 267 (4th Cir. 1980)_____________ 16

Talley v. U.S. Postal Service, 720 F.2d 505 (8th
Cir. 1983), cert, denied, 466 U.S. 952 (1984)__  16

Taylor v. Teletype Corp., 648 F.2d 1129 (8th Cir.),
cert, denied, 454 U.S. 969 (1981)______________  16

Texas Department of Community Affairs v. Bur-
dine, 450 U.S. 248 (1981)____________________  3

Trevino v. Holly Sugar Corp., 811 F.2d 896 (5th
Cir. 1987)___________________________________  15

United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977)   3

United States Postal Service Board of Governors v.
Aikens, 460 U.S. 711 (1983)__________________  3

Walls v. Mississipi State Dept, of Public Welfare,
730 F.2d 306 (5th Cir. 1984)_________________  15

Wang v. Hoffman, 694 F.2d 1146 (9th Cir. 1982) __ 2, 23
Washington v. Davis, 426 U.S. 229 (1976)________ 29
Watson v. Fort Worth Bank and Trust, C.A. No. 

4-81-581-E (N.D. Tex. 1984), aff’d, 798 F.2d 791 
(5th Cir. 1986), cert, granted, No. 86-6139 (June

TABLE OF AUTHORITIES— Continued
Page

Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.

Statutes:
Civil Rights Act of 1964, Title VII,

42 U.S.C. § 2000e, et seq.______
42 U.S.C. §2000e-(a) (2) ______

42 U.S.C. § 1981__________________

passim
11,12

3-4



vii

Legislative History: Page
122 Cong. Rec. 22590 (Daily ed., July 19, 1976) 

(Memorandum from David L. Rose to Deputy 
Attorney General)-----------------------------------------  20

Miscellaneous:
Alphabetical Index of Industries and Occupations,

U.S. Bureau of the Census (1980 )__________  20
American Psychological Association, American Ed­

ucation Research Association and National Coun­
cil on Measurements in Education, Standards for
Educational and Psychological Testing (1985)_24-30

Comment, Courts, Psychologists, and the EEOC’s 
Uniform Guidelines: An Analysis of Recent 
Trends Affecting Testing As A Means of Em­
ployee Selection, 36 Emory L.J. 203 (Winter
1987)_______________________________________  26

Denis, Subjective Decision Making: Does It Have 
A Place In The Employment Process ?, 11 Empl.
Rel. L.J. 269 (1985)__________________________  21

Gwartney, Asher, Haworth & Haworth, Statistics, 
the Law and Title VII: An Economist’s View, 54
Notre Dame Law. 633 (1979)_________________  20

Ghiselli, Theory of Psychological Measurement
(1964) _____________________________________  24

Guidelines on Employee Selection Procedures, 35 
Fed. Reg. 12,333 (1970), withdrawn, 43 Fed.
Reg. 38,312 (1978)___________________________ 20,29

3 A. Larson & L. Larson, Employment Discrimina­
tion § 76.34 at 15-87 to 15-88________________ 8,15, 21

Linn, “Ability Testing: Individual Differences, 
Prediction, and Differential Prediction,”  Ability
Testing (National Academy of Sciences 1982)_ 5

Potter, Employee Selection: Legal and Practical 
Alternatives to Compliance and Litigation (Na­
tional Foundation for the Study of Equal Em­
ployment Policy, 2d ed. 1986)________________  29-30

Report by the U.S. General Accounting Office, Uni­
form Guidelines on Employee Selection Should 
Be Reviewed and Revised (1982)_____________  29

TABLE OF AUTHORITIES— Continued



viii

TABLE OF AUTHORITIES— Continued
Page

Sharf, “ Personnel Testing and the Law,” Person­
nel Management (K. Rowland & J. Ferris, eds.)
(1982) --------------------------------------------    20

Society for Industrial and Organizational Psychol­
ogy, Principles for the Validation and Use of
Personnel Selection Procedures (1987)_______ 24-30

Uniform Guidelines on Employee Selection Proce­
dures, 29 C.F.R. § 1607 (1978)-----------------------passim



In The

§>itpriw (Eoixrt of tty States
October Term, 1987

No. 86-6139

Clara Watson,
Petitioner, v. ’

Fort Worth Bank & Trust,
________  Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT

The Equal Employment Advisory Council (EEAC or 
Council) respectfully submits this brief as amicus curiae 
in support of the Respondent. The parties’ written con­
sents have been filed with the Clerk of this Court.

INTEREST OF THE AMICUS CURIAE
EE AC is a voluntary, nonprofit association organized 

to promote sound approaches to the elimination of em­
ployment discrimination. Its membership comprises a 
broad segment of the employer community in the United 
States, including both individual employers and trade 
associations, which themselves have hundreds of em­
ployer members interested in the foregoing purposes. The 
Council’s governing body is a Board of Directors com­
posed of experts and specialists in equal employment 
opportunity. Their combined experience gives the Council 
a unique understanding of the practical, as well as the



2

legal, aspects of equal employment policies and require­
ments. The members of the Council are committed firmly 
to the principles of nondiscrimination and equal employ­
ment opportunity.

Substantially all of EEAC’s members are employers 
subject to Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e, et seq., the statute involved 
herein. As a result, EEAC’s members are vitally con­
cerned about the specific issue before the Court in this 
case, whether a plaintiff may challenge a subjective pro­
motion practice or procedure under the disparate impact 
theory of Title VII when the disparate treatment theory 
is more appropriately used. Most employment decisions 
involve the use of subjective criteria; relatively few are 
based on objective factors alone. EEAC’s members are 
concerned that the application of the disparate impact 
theory to subjective criteria would effectively bar even 
their wholly legitimate use,1 because the practical diffi­
culties and costs of “ validating” subjective criteria would 
make the employer’s rebuttal burden under that theory 
virtually insurmountable in most instances. Accordingly, 
EEAC’s members will be affected directly by the rule of 
law this Court adopts in deciding what is an appropriate 
cause of action under the disparate impact theory.

EEAC has filed amicus curiae briefs in numerous cases 
concerning the permissible applications of the disparate 
impact theory. In Pouncy v. Prudential Insurance Co., 
668 F.2d 795 (5th Cir. 1982), the first federal circuit 
court case to address the issue, EEAC argued that em­
ployers are not barred by Title VII from using subjective 1

1 There is nothing’ inherently wrong with an employer’s using 
some element of subjectivity in making employment decisions, as 
long as subjective criteria are applied in a nondiscriminatory man­
ner.̂  Merely because a practice or discriminatory criterion is sub­
jective in nature does not mean that it is discriminatory per se. 
Hill v. Seaboard Coast Line R.R. Co., 767 F.2d 771, 775 (11th Cir. 
1985); Wang v. Hoffman, 694 F.2d 1146, 1148 (9th Cir. 1982); 
Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981). See Argu­
ment II, infra, at pp. 18-23.



3

criteria in making promotion decisions, particularly where 
adequate safeguards exist to prevent the criteria from 
being applied discriminatorily. EEAC also filed an 
amicus brief in Atonio v. Wards Cove Packing Co., Inc., 
810 F.2d 1477 (9th Cir. 1987) (en banc), a case which 
held that the disparate impact analysis may be applied to 
Title VII claims involving subjective employment prac­
tices, but that plaintiffs must prove a causal connection 
between specific employment practices or criteria and a 
disparate impact upon a protected class. In addition, 
EEAC filed a brief in Green v. USX Corp., Nos. 86-1554 
& 86-1568 (3d Cir.) (decision pending), another case 
concerning whether the disparate impact analysis properly 
can be applied to discrimination claims arising from sub­
jective employment practices.2

Finally, because of its interest in the types of proof 
required under the two theories, EEAC also has filed 
amicus curiae briefs with this Court concerning statisti­
cal and standard of proof issues under Title VII. See, 
e.g., Bazemore v. Friday, 106 S. Ct. 3000 (1986) ; United 
States Postal Service Board of Governors v. Aikens, 460 
U.S. 711 (1983); Connecticut v. Teal, 457 U.S. 440 
(1982); Texas Department of Community Affairs v. Bur- 
dine, 450 U.S. 248 (1981); Furnco Construction Corp. v. 
Waters, 438 U.S. 567 (1978); United Air Lines, Inc. v. 
Evans, 431 U.S. 553 (1977); and International Brother­
hood of Teamsters v. United States, 431 U.S. 324 (1977).

STATEMENT OF THE CASE
Clara Watson (Watson), a black former bank em­

ployee, sued Fort Worth Bank & Trust (the Bank), claim­
ing that she was discriminated against in violation of 
Title VII, 42 U.S.C. § 2Q00e, et seq. and Section 1981,

2 The Council also filed an amicus brief in American Federation 
of State, County, and Municipal Employees, AFL-CIO v. State of 
Washington, 770 F.2d 1401 (9th Cir. 1985), and Spaulding v. Uni­
versity of Washington, 740 F.2d 686 (9th Cir.), cert, denied, 469 
U.S. 1036 (1984), dealing with the question of whether the dis­
parate impact theory may be used to challenge an employer’s pay 
practices under the comparable worth theory.



4

42 U.S.C. § 1981. With regard to the issue of promo­
tions, the issue relevant to this Court, Watson used both 
statistical and non-statistical evidence in an attempt to 
prove that she had applied for, but was improperly denied 
because of her race, four promotions to supervisory posi­
tions. The Bank countered that the supervisors making 
these promotion decisions had used some “fifty or a hun­
dred” subjective criteria— such as personal judgment— 
in making the promotions, and that such judgments were 
not discriminatory. See Joint App. at 135.

The district court, after denying class claim status to 
Watson’s allegations, ruled that she had failed to show 
that the Bank’s articulated reasons were pretextual, and 
that she had presented “ little or no evidence” of discrimi­
nation in any of the Bank’s promotion decisions. C.A. 
No. 4-81-581-E (N.D. Tex. 1984) at 13. Analyzing Wat­
son’s claim as a disparate treatment case, the court found 
specifically that Richard Burt and Patricia Cullar, work­
ers who were chosen for promotions over Watson, were 
more qualified than Watson because of their experience, 
performance evaluations, or near completion of a college 
degree. Id. at 8. Significantly, the district court then 
concluded that the promotion of Kevin Brown, the promo­
tion most fervently challenged in the Petitioner’s brief,, 
was adequately explained because Brown’s supervisor “ re­
garded [him] highly” based on his supervisory exper­
ience, because Watson “was out on sick leave” when the 
position became available, and because Brown “got along” 
better than Watson with co-workers. Id. at 9.

The Fifth Circuit agreed that Watson’s claim was 
properly analyzed “ as an individual disparate treatment 
claim,” 789 F.2d at 797, and that the district court’s 
finding that the Bank did not intentionally discriminate 
on the basis of promotions was “not clearly erroneous.” 
Id. at 799. Significantly, the Fifth Circuit held that Wat­
son could not also use the less burdensome “ disparate 
impact” theory, because “ this Court’s recent precedent 
establishes that a Title VII challenge to an allegedly dis­
cretionary promotion system is properly analyzed under



5

the disparate treatment model rather than the disparate 
impact model.” Id. at 797.

SUMMARY OF ARGUMENT

For several reasons, the disparate impact theory of 
Title VII should not be applied to discrimination claims 
involving practices or criteria that are subjective in 
nature. First, application of the theory to these types 
of claims would conflict with the fundamental legal prin­
ciples that distinguish disparate impact from disparate 
treatment analysis. Subjective employment criteria neces­
sarily require the exercise of judgment by the employer, 
McRae v. General Dynamics, 774 F.2d 1171 (8th Cir. 
1985), and thus are inherently based on intent. There­
fore, only the disparate treatment theory, which focuses 
on “purposeful or intentional discrimination,”  Massarsky 
v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.), 
cert, denied, 464 U.S. 937 (1982), should be used to an­
alyze such devices. Indeed, this Court consistently has 
applied only the treatment model when reviewing dis­
crimination claims involving subjective selection devices, 
see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973), and numerous circuit courts have adopted 
that view, see, e.g., Pouncy v. Prudential Insurance Co., 
668 F.2d 795 (5th Cir. 1982).

Second, for practical reasons, the disparate impact 
theory is inappropriate for claims involving subjective 
practices or criteria. Title VII does not foreclose em­
ployers as a matter of law from using subjective criteria 
in making promotion decisions, particularly where ade­
quate safeguards exist to prevent the criteria from being 
used discriminatorily. E.g., Pouncy v. Prudential Insur­
ance Co., 499 F. Supp. 427 (S.D. Tex. 1980) aff’d, 668 
F.2d 795 (5th Cir. 1982). No Court has held that valida­
tion of subjective criteria constitutes such a safeguard. 
Indeed, validated procedures can result in substantial 
impact against blacks. Linn, “Ability Testing: Individual 
Differences, Prediction, and Differential Prediction,”  Abil­



6

ity Testing (National Academy of Sciences 1982). And 
using subjectivity to determine who is the “best qualified” 
candidate clearly is permissible under Title VII. John­
son v. Transportation Agency of Santa Clara County, 
107 S. Ct. 1442, 1457 n.17 (1987). In fact, nothing in 
Title VII requires businesses to adopt the “  ‘best’ hiring 
procedures” or requires an employer to “ pursue . . . the 
course which would both enable [it] to achieve [its] 
own business goal and allow [it] to consider the most 
employment applications.” Furnco Construction Corp., 
438 U.S. at 577-78 (emphasis in original). Moreover, as 
a practical matter, if plaintiffs are permitted to rely on 
the statistically oriented impact theory in attacking sub­
jective practice, any showing of a statistical disparity 
sufficient to establish a prima facie case will inevitably 
lead to a finding of discrimination, because it is virtually 
impossible for an employer to show the “ business neces­
sity” of such practices by using statistical and other 
empirical validation methods. Thus, employers would face 
a costly and insurmountable rebuttal burden— a result 
that is especially unwarranted where, as here, the court 
finds that the employer did not act with discriminatory 
intent.

Finally, the arguments to the contrary advanced by 
Watson and the amicus American Psychological Associa­
tion— that subjective criteria can and should be validated 
— are not persuasive. First, the technical literature sim­
ply does not support the proposition that promotion cri­
teria can be validated in the same meaningful way as 
objective criteria. In fact, a close examination of the 
technical standards, cited by the APA as the “most au­
thoritative source” for its arguments, reveals they do 
not even apply to the facts presented herein. Just as 
importantly, the attempted “validation” of subjective cri­
teria— and even the sole use by employers of objective 
criteria— will still have to be examined for the existence 
of discriminatory application, a function already served 
by the treatment theory.



7

ARGUMENT
I. THIS COURT SHOULD NOT APPLY THE DISPAR­

ATE IMPACT THEORY TO CLAIMS INVOLVING 
SUBJECTIVE EMPLOYMENT PRACTICES OR CRI­
TERIA, BECAUSE THE DISPARATE TREATMENT 
THEORY IS UNIQUELY SUITED TO SUCH CLAIMS

As shown below, the Fifth Circuit properly analyzed 
Watson’s claim under the treatment theory, because she 
challenged hiring criteria that are subjective in nature. 
Since it is clear that only the disparate treatment theory, 
not the disparate impact theory, should be used when 
subjective practices or criteria are challenged, EEAC 
urges that the decision of the court below be affirmed.

A. Subjective Practices, Such As The Promotions Made 
By The Supervisors In This Case, Are Based Upon 
The Intent And Judgment Of The Persons Applying 
Them

The starting point for determining which theory of 
Title VII is appropriate when “ subjective” practices or 
criteria are involved is a clear understanding of the 
nature of such a practice or criterion. Here Watson 
concedes that the Bank’s promotion decisions were “purely 
subjective,” see Brief for the Petitioner at 6, 11, but for 
purposes of analysis, it is important to distinguish the 
two.

The Second Circuit has described a “ subjective decision 
making process” as one that is not exclusively comprised 
of “ quantifiable or objectively verifiable selection criteria 
which are mechanically applied . . .” Zahorik v. Cornell 
University, 729 F.2d 85, 95 (2d Cir. 1984). The Eighth 
Circuit has observed that “ [a] subjective personnel pro­
cedure, by definition, functions not solely through facially 
objective measures of ability, but employs judgment and 
intuition in conjunction with objective measures, such as 
education and demonstrated skills, to achieve its ends.” 
McRae v. General Dynamics, 774 F.2d 1171 (unpublished 
slip op. at 4) (8th Cir. 1985), quoted in Emmanuel v. 
Marsh, 628 F. Supp. 564, 569 (E.D. Mo. 1986) (emphasis



8

added), aff’d, Paige v. Marsh, No. 86-1282 (slip op.; 
available on Lexis) (8th Cir. Feb. 13, 1987) ; see also 3 A. 
Larson & L. Larson, Employment Discrimination § 76.34 
at 15-87 to 15-88 (When there is discretionary decision­
making;, “ there is simply no neutral factor involved . . . 
what is going on is an ad hoc decision process in which 
a subjective judgment is being made about an individ­
ual''’ ). In short, a subjective employment practice or 
criterion is inherently based on the judgment, the motiva­
tion, the state of mind, and the intent of the person 
applying it.

B. The Burdens Of Proof Under The Disparate Treat­
ment Theory Properly Focus Upon Alleged Inten­
tional Discrimination In Subjective Practices, While 
The Burdens Under The Disparate Impact Theory 
Are Most Suitable For Claims Involving The Dis­
criminatory Effect Of Facially Neutral Employment 
Practices

T'o attempt to use the impact theory under the facts 
presented herein would improperly destroy the clear dis­
tinction between that theory and the disparate treatment 
theory. That clear and sensible distinction is apparent 
in the unique focus, and in the contrasting burdens of 
proof, under the two theories.

Disparate treatment, the theory Watson properly 
attempted to use initially, is concerned with those situa­
tions where an employer “ simply treats some people less 
favorably than others because of race, color, religion, sex, 
or national origin.” International Brotherhood of Team­
sters v. United States, 431 U.S. 324, 335 n.15 (1977) 
(emphasis added). Proof of discriminatory motive is the 
central inquiry. Id. Disparate impact, on the other hand, 
concerns specific “practices, procedures or tests,” Griggs 
v. Duke Power Co., 401 U.S. 424, 430 (1971), “ that are 
facially neutral in their treatment of different groups, 
but that in fact fall more harshly on one group than 
another,” Teamsters, 431 U.S. at 335 n.15. Proof of dis­
criminatory motive is not required. Id. Thus, the central 
focus of the disparate treatment theory is the employer’s



9

intent, whereas the impact theory concerns the possible 
discriminatory effect of a seemingly neutral employment 
practice or criterion.

This distinction in focus is reflected in the difference 
in the burdens of proof under each theory. Under dis­
parate treatment, the concern with intent is reflected in 
the prima facie requirement that the plaintiff satisfy the 
four requirements established by this Court in McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),3 or 
otherwise produce evidence “ adequate to create an infer­
ence that an employment decision was based on a dis­
criminatory criterion illegal under the Act,” Teamsters, 
431 U.S. at 358 (1977) (emphasis added). Similarly, 
the employer’s rebuttal burden under disparate treatment 
to “articulate some legitimate, nonMscriminatory reason” 
for a challenged action, McDonnell Douglas, 411 U.S. at 
802 (emphasis added), reflects a concern with intent.

In contrast, disparate impact’s focus on the discrimi­
natory effect of specific employment devices is revealed 
in the prima facie requirement that the plaintiff prove 
that a “ facially neutral employment practice” has caused 
a significantly discriminatory impact on a protected class 
of employees. Connecticut v. Teal, 457 U.S. 440, 446 
(1982). As for the rebuttal burden, the employer must 
show a “business necessity” for the challenged practice 
or criterion, Griggs, 401 U.S. at 431 (1971), or that it 
is otherwise “ job related,” Albermarle Paper Co. v. 
Moody, 422 U.S. 405, 425 (1975). This, too, reflects the

8 McDonnell Douglas requires the plaintiff to show “ (1) that he 
belongs to a [protected class]; (ii) that he applied and was quali­
fied for a job for which the employer was seeking applicants; (iii) 
that, despite his qualifications, he was rejected; and (iv) that, after 
his rejection, the position remained open and the employer contin­
ued to seek applicants from persons of complainant’s qualifications.” 
411 U.S. at 802. These four requirements are not an inflexible 
formula, but “a sensible, orderly way to evaluate the evidence in 
light of common experience as it bears on the critical question of 
discrimination.” Furnco Construction Corp. v. Waters, 438 U S 
567, 577 (1978).



10

impact theory’s focus on neutral or objective, not inten­
tional or subjective, devices.4

Clearly, Watson did not point to a “ facially neutral 
employment practice,” Teal, 457 U.S. at 446, the thresh­
old requirement for establishing disparate impact. 
Rather, Watson claimed the Bank’s promotion decisions 
were “based on a discriminatory criterion,” Teamsters, 
431 U.S. at 358, the classic disparate treatment focus. 
Moreover, Watson did not point to the employment prac­
tice that caused the discriminatory impact, Dothard v. 
Rawlinson, 433 U.S. 321, 328-29 (1977); she failed to 
isolate which practice out of the “ fifty or a hundred” led 
to the alleged discrimination. Thus, as properly analyzed 
by the Fifth Circuit, the disparate treatment theory, 
which focuses on intent, is the only theory that is logically 
applicable to Watson’s claim in this case.5 Accordingly,

4 As explained fully in n.18, infra, statistics can be used to prove 
and rebut allegation of discrimination under either theory. In addi­
tion, both theories permit the plaintiff to show “pretext”  if the 
employer satisfies the rebuttal burden. Under treatment analysis, 
to show pretext the plaintiff must prove that the proffered reasons 
for the challenged action were not the true reasons and that the 
true reasons were intentionally discriminatory. McDonnell Douglas, 
411 U.S. at 804-05. Under impact analysis, pretext is shown by 
demonstrating that other practices or criteria without a discrimi­
natory effect would meet the employer’s needs equally well. Albe­
marle Paper, 422 U.S. at 425. Again, the burdens match the basic 
focus of each theory.

5 Although this Court has noted that the same set of facts may 
sometimes give rise to the application of both theories, Watson 
failed to allege such facts herein. This Court stated in Teamsters, 
431 U.S. at 335 n.15 that “ [eQither [the treatment or impact] 
theory may, of course, be applied to a particular set of facts.” 
Typically, this would occur where an objective selection criterion 
results in a racial disparity that is statistically significant. Unde-r 
such a scenario, a plaintiff could proceed under both theories, 
alleging that the employer used the objective criterion to effectuate 
a discriminatory intent. It should not, however, be mistakenly 
inferred from the applicability of both theories of liability to a 
particular set of facts that either theory can apply to any and all 
sets of facts. As shown in Argument IB above, the two theories, 
even where applied to the same set of facts, serve completely



the Fifth Circuit properly declined to rely also upon the 
disparate impact theory.

C. As Recognized In The Opinions Of This And Other 
Courts, Because Discriminatory Intent Is The Cen­
tral Focus Of The Treatment Theory, And Because 
Subjective Practices Are Inherently Intent-Based, 
Only The Treatment Theory Should Be Used To 
Analyze Claims That Subjective Employment Prac­
tices Are Discriminatory
1. Because Subjective Practices Are Intent-Based, 

This Court Has Consistently Applied The Dis­
parate Treatment Theory To Determine Whether 
Such Practices Violate Title VII

As shown above, because subjective practices, such as 
the promotion decisions made by supervisors in this case, 
are intent-based, the disparate treatment theory is 
uniquely suited to analyzing such practices. This Court, 
in fact, has consistently applied only the treatment model 
when reviewing discrimination claims involving subjec­
tive selection practices or criteria. The underlying rea­
son, of course, is that “ [pjroof of discriminatory motive 
is critical” under the treatment theory. Teamsters, 431 
U.S. at 335 n.15.

This Court first adopted the impact theory in Griggs v. 
Duke Power Co., 401 U.S. 424 (1971), as a judicial gloss 
on Section 703(a)(2) of Title VII.6 Griggs held that 
“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 discrimi­

different roles, and function differently in the fulfillment of Title 
VII’s policies.

8 Section 703(a) (2) provides:
It shall be an unlawful employment practice for an employer—
* * * * 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 other­
wise 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) (2) (1981).

11



12

natory employment practices.” 401 U.S. at 430. The 
“practices, procedures or tests” at issue in Griggs were 
requirements for a high school education and a passing 
score on a standardized general intelligence test. The 
Court found those requirements to be in violation of Title 
VII because they operated to exclude blacks at a dispro­
portionately high rate, and were insufficiently related to 
the jobs for which they were used. Id. at 431-34.

In the cases decided after Griggs, this Court has inter­
preted Section 703(a) (2) to prohibit facially neutral em­
ployment practices or criteria (like the high school 
diploma and test score in Griggs) that operate to dis­
criminate against protected classes of employees. Unlike 
the “ subjective” decisions made herein, this Court’s ap­
plication of the disparate impact analysis has been 
limited to the narrow context of facially neutral 
practices or criteria. For example, Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975), applied the impact 
theory to employment “ tests” that “ select [ed] applicants 
for hire or promotion in a racial pattern significantly 
different from that of the pool of applicants.” Id. at 425. 
Again, in General Electric Co. v. Gilbert, 429 U.S. 125 
(1976), this Court relied on the impact theory in review­
ing a rule that excluded women from a disability plan 
based on pregnancy. In addition, Dothard v. Rawlinson, 
433 U.S. 321 (1977), presented the Court with height 
and weight criteria that adversely affected women and 
could not be shown to have a “business necessity.”  The 
Court recognized that in dealing with such “ facially neu­
tral qualification standards” impact analysis should be 
applied, and emphasized that a prima facie case is shown 
under the impact theory by demonstrating that the par­
ticular criteria in question actually cause the selection of 
applicants in a discriminatory manner. Id. at 328~29.7 1

1 See also Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) (im­
pact analysis applied to rule denying- accumulated seniority to 
employees returning to work after pregnancy); New York City 
Transit Authority v. Beazer, 440 U.S. 568 (1979) (impact theory



13

In stark contrast to these “ impact” cases, this Court’s 
“ treatment” cases have analyzed a different type of em­
ployment practice: subjective decisions. For example, in 
McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), 
this Court contrasted a subjective decision to dismiss an 
employee for misconduct with the types of objective de­
vices that were at issue in Griggs. The Court noted that 
Griggs:

dealt with standardized testing devices which, how­
ever neutral on their face, operated to exclude many 
blacks who were capable of performing effectively in 
the desired positions . . , Respondent, however, ap­
pears in different clothing . . .[His employer] does 
not seek his exclusion on the basis of a testing device 
which overstates what is necessary for competent 
performance, or through some sweeping disqualifi­
cation . . .

411 U.S. at 806 (emphasis added). This Court then 
vacated the lower court decision, which had applied the 
Griggs requirement of “ job-relatedness” to the employer’s 
reasons for the subjective dismissal decision. Id. at 
805-06.

Significantly, in Furnco Construction Corp. v. Waters, 
438 U.S. 567 (1978), this Court also expressly contrasted 
devices like those at issue in Griggs with subjective prac­
tices or criteria. The plaintiffs in Furnco challenged 
practices by which the employer hired only persons he 
considered to be experienced and competent or who were 
referred to him as similarly skilled. The Court refused 
to apply the impact theory, noting that the case “did not 
involve employment tests . . .  or particularized require­
ments such as . . . height and weight specifications . . .” 
Id. at 575 n.7 (emphasis added). Justice Marshall, after 
distinguishing the treatment theory from the impact

used to review anti-narcotics rule); Connecticut v. Teal, 457 U.S. 
440, 446 (1982) (in applying impact theory to analyze a written 
test used to determine eligibility for promotion, the Court empha­
sized that that theory focuses on “practices, procedures, or tests.” 
Id. at 448).



14

theory, dissented “ from the Court’s apparent decision 
. . .  to foreclose on remand further litigation on the 
Griggs question of whether [the employer’s] hiring prac­
tices had a disparate impact.”  Id. at 583 (Marshall, J., 
concurring in part and dissenting in part). See Hazel­
wood School District v. United States, 433 U.S. 299 
(1977) (applying disparate treatment analysis to plain­
tiff’s attack on subjective hiring procedures) ; and Team­
sters, 431 U.S. 324 (applying treatment analysis to chal­
lenge of subjective hiring and promotion decisions).

Accordingly, it is clear that while this Court has never 
expressly held that the impact theory is unavailable for 
challenges to subjective practices, it has carefully 
guarded the distinction between the disparate impact and 
the disparate treatment theories of Title VII. Consis­
tently, this Court has applied disparate impact only to 
claims challenging facially neutral employment practices 
or criteria that adversely affect a protected class of 
employees. Moreover, the Court has explicitly distin­
guished such cases from those in which subjective prac­
tices or criteria, like those involved herein, are chal­
lenged. Accordingly, this Court should uphold its prior 
decisions, and thereby affirm the decision by the Fifth 
Circuit below.

2. Numerous Reasoned Decisions By Courts Of Ap­
peals Also Have Recognized The Propriety Of 
Using Only The Treatment Theory To Analyze 
Subjective Employment Decisions, And Other 
Courts Have Required Plaintiffs To Prove Causa­
tion At A Minimum

Numerous circuit courts, including the Fifth Circuit 
below, also have recognized that claims involving subjec­
tive practices or criteria should be analyzed under the 
disparate treatment theory, not the impact theory. For 
example, the Fifth Circuit in Pouncy v. Prudential In­
surance Co., 668 F.2d 795 (5th Cir. 1982), addressing 
for the first time whether the impact analysis should be 
applied to a plaintiff’s wide-ranging attack on multiple



15

employment practice or criteria, decided that the dispar­
ate impact theory is inappropriate for such an attack. 
In doing so, the court held that the theory “applies only 
when an employer has instituted a specific procedure . . . 
that can be shown to have a causal connection to a class 
based imbalance in the work force,”  668 F.2d at 800. 
Rather, only “ facially neutral” practices or criteria are 
amenable to the required showing of a causal connection. 
Id. at 801. As if foreshadowing the facts presented 
herein, the court in Pouncy explained:

None of the three Prudential “ employment practices” 
singled out by the appellant—the failure to post job 
openings, the use of a level system, and evaluating 
employees with subjective criteria— are akin to the 
“ facially neutral employment practices”  the disparate 
impact model was designed to test. Unlike educa­
tional requirements, aptitude tests, and the like, the 
practices identified by Pouncy are not selection pro­
cedures to which the disparate impact model tradi­
tionally has applied. See 3 A. Larson & L. Larson, 
Employment Discrimination § 73.00 (1981 & 1981 
Supp.).

Id. (emphasis added) .8

8 Other Fifth Circuit cases agree. See Trevino v. Holly Sugar 
Corp., 811 F.2d 896, 902 (5th Cir. 1987) ( “challenges to employ­
ment practices that rely on subjective selection criteria must be 
analyzed under the disparate treatment theory of discrimination, 
which requires a finding of intentional discrimination” ) ; Cunning­
ham v. Housing Auth. of City of Opelousas, 764 F.2d 1097, 1099 
(5th Cir.), cert, denied, 106 S.Ct. 530 (1985), quoting Walls v. 
Mississippi State Dept, of Public Welfare, 730 F.2d 306, 321-22 
(5th Cir. 1984) ( “The use of subjective criteria to evaluate em­
ployees in hiring is analyzed, not under the disparate impact model, 
but instead under the disparate treatment model.” ) ; Carroll v. 
Sears, Roebuck & Co., Inc., 708 F.2d 183, 188 (5th Cir. 1983) ( “The 
use of subjective criteria . . .  is not within the category of facially 
neutral procedures to which the disparate impact model is ap­
plied.” ) ; Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 817 
(5th Cir.) ( “Travenol’s interviewing cannot be viewed as a neutral 
practice with a disparate effect thus subject to Griggs . . .” ), cert, 
denied, 459 U.S. 1038 (1982). But c.f. Page v. United States In­
dustries, Inc., 726 F.2d 1038, 1045-46 (5th Cir. 1984) (disparate



16

Three other circuits agree with the Fifth. The Second 
Circuit, in Zahorik v. Cornell University, 729 F.2d 85, 
95 (2d Cir. 1984), has held that “ The disparate impact 
theory has been used mainly in the context of quantifiable 
or objectively verifiable selection criteria which are 
mechanically applied and have consequences roughly 
equivalent to results obtaining under systematic discrimi­
nation.” See Rossini v. Ogilvy & Mather, Inc., No. 
85-7776 (2d Cir. Aug. 14, 1986). In addition, the Fourth 
Circuit, in Brewster v. Barnes, 788 F.2d 985, 993 (4th 
Cir. 1986), recently held that a plaintiff’s challenge to 
subjective employment practices brought under the im­
pact theory should have been brought under the disparate 
treatment theory. See EEOC v. Federal Reserve Bank, 
698 F.2d 633, 638-639 (4th Cir. 1983), rev’d on other 
grounds sub nom. Cooper v. Federal Reserve Bank, 467 
U.S. 867 (1984) ; Stastny v. Southern Bell Telephone & 
Telegraph Co., 628 F.2d 267, 274, n.10 (4th Cir. 1980). 
And the Eighth Circuit, in Paige v. Marsh, No. 86-1282 
(slip op: available on Lexis) (8th Cir. Feb. 13, 1987), 
recently elucidated the “ less than clear” case law in that 
circuit,® noting that “ a disparate impact claim may not 9

treatment and disparate impact theories used to analyze “subjective 
promotional system” ).

9 The Eighth Circuit in Taylor v. Teletype Corp.. 648 F.2d 1129, 
1132-1133 n.6 (8th Cir.), cert, denied, 454 U.S. 969 (1981) previ­
ously held that the disparate impact theory is not available to 
challenge a subjective decision-making process. See Harris v. Ford 
Motor Co., 651 F.2d 609, 611 (8th Cir. 1981) ( “A subjective 
decision-making system . . .  is not the type: of practice outlawed 
under Griggs and cannot alone form the foundation for a discrimi­
natory impact case.” ) ; and Talley v. United States Postal Service, 
720 F.2d 505, 507 (8th Cir. 1983), cert, denied, 466 U.S. 952 (1984) 
(same). While the Court in Gilbert v. City of Little Rock, 722 F.2d 
1390, 1397-1398 (8th Cir. 1983), cert, denied, 466 U.S. 972 
(1984) allowed the plaintiff in that case to use the disparate impact 
theory without identifying an objective, neutral employment prac­
tice, Gilbert did not even refer to the Eighth Circuit’s prior deci­
sions in Taylor, Harris and Talley, indicating that the case may 
have been decided without the benefit of complete briefing. At any 
rate, the Eighth Circuit has now sided with the Bank herein.



be based on subjective evaluation and promotion proce­
dures.” 10 11

Two other circuits, the Seventh and Tenth, have both 
issued opinions that support the Bank’s position that only 
the treatment theory should be used to analyze subjective 
practices. While aberrant decisions in these two circuits 
have resulted in a possible split between panels, and thus 
dicta that appear at first glance to be citable for the prop­
ositions advanced by Watson, these cases are not neces­
sarily in conflict with the arguments made by the Bank 
herein.11

Obviously, this issue has not been settled in the cir­
cuits. But it is also clear that the law in four circuits— 
the Second, Fourth, Fifth and Eighth— directly supports

10 While a decision in one other circuit, the Third, is currently 
pending, Green v. USX Corp., Nos. 86-1554 & 85-1568, that circuit 
recently completed oral arguments. Previously, however, the court 
has observed in Massarsky v. General Motors Corp., that “ [a] plain­
tiff alleging disparate treatment . . . bears the ultimate burden of 
persuading the jury that his treatment was ‘caused by purposeful 
or intentional discrimination” ’ 706 F.2d 111, 117 (3d Cir.), cert, 
denied, 464 U.S. 937 (1983), quoting Smithers v. Bailar, 629 F.2d 
892, 898 (3d Cir. 1980) (emphasis added). The court further stated 
that plaintiffs may invoke the treatment model where the employer’s 
treatment of the employee has been “expressly race-based or sex- 
based,” while the disparate impact theory “applies when the employ­
er’s adverse action resulted not from any discriminatory motive but 
simply from application of facially neutral criteria that are alleged 
to have a disproportionate impact on members of the protected 
class.” Id. (emphasis added). See also Croker v. Boeing Co., 662 
F.2d 975, 991 (3d Cir. 1981) (characterizing the impact theory as 
applicable to “practices that are facially neutral” ). By ruling out 
the impact theory whenever motive is involved, the court essentially 
adopted the position that subjective practices or criteria (which 
necessarily involve motive) should be analyzed only under the 
disparate treatment model, not the impact model.

11 For example, while Bauer v. Bailar, 647 F.2d 1037, 1043 (10th 
Cir. 1981), applied the disparate impact theory to subjective hiring 
and promotion decisions, the court in that case considered it im­
portant that the selection decisions were comprised of both subjec­
tive and objective hiring components. Bauer is thus clearly distin­
guishable from the case at bar; here the plaintiffs concede that the 
decisions are subjective.

17



18

the Bank’s position in this case, and that three more cir­
cuits have issued recent decisions that point strongly in 
the same direction.12 Even the Ninth Circuit’s recent 
decision in Atomo v. Wards Cove Packing Co., 810 F.2d 
1477 (9th Cir. 1987) {en banc), held that plaintiffs must 
prove a “ causal connection” between challenged practices 
and their alleged impact. Id. at 1482.13 See Peters v. 
Lieuallen, 746 F.2d 1390, 1392 (9th Cir. 1984) (cited in 
Atonio) ,14 As a result, many reasoned decisions in the 
courts of appeals lend persuasive support to this Court’s 
clear distinction between the treatment and impact 
theories. Accordingly, this Court should affirm the deci­
sion of the Fifth Circuit below.

II. THIS COURT SHOULD NOT APPLY THE DISPAR­
ATE IMPACT THEORY TO ANALYZE SUBJEC­
TIVE EMPLOYMENT PRACTICES BECAUSE, AS 
A PRACTICAL MATTER, SUCH AN APPLICATION 
WOULD REQUIRE INORDINATE EXPENDITURE 
UPON VALIDATION OF EMPLOYMENT CRI­
TERIA, IMPOSE AN INSURMOUNTABLE REBUT­
TAL BURDEN UPON EMPLOYERS, AND IMPROP­
ERLY ELIMINATE THE LEGITIMATE USE OF 
SUBJECTIVITY IN EMPLOYMENT DECISIONS

As discussed in Argument IB above, the disparate im­
pact theory requires plaintiffs to show that a “ facially

12 Clearly, therefore, the statement by the amicus American Civil 
Liberties Union that “ [o]nly one Circuit, the Second, has refused 
to apply disparate impact analysis to subjective criteria,”  Br. at 30 
n.32, is incorrect.

13 To the extent it is unclear in a particular case whether a 
criterion or procedure is objective or subjective, EEAC contends 
that in any event, it is an essential prerequisite that the plaintiff 
establish a causal connection between a particular criterion and a 
workforce imbalance before the impact theory may be used.

14 Of course, other circuits have held that subjective decisions 
may be challenged under the impact theory. See Griffin v. Carlin, 
755 F.2d 1516, 1524-1525 (11th Cir. 1985) ; Segar v. Smith, 738 
F.2d 1249, 1270-1272, 1288 n.4 (D.C. Cir. 1984), cert, denied, 471 
U.S. 1115 (1985); and Roive v. Cleveland Pneumatic Co. Numerical 
Control, 690 F.2d 88, 93 (6th Cir. 1982). These cases are wrong 
and should be overruled.



19

neutral” employment practice has a significantly dis­
criminatory impact upon a protected class, Teal, 457 U.S. 
at 446. To correspond with that exacting requirement, 
when a plaintiff makes a prima facie showing of dis­
parate impact, the employer bears the heavier burden of 
proving that the challenged practice or criterion has a 
“business necessity,” Griggs, 401 U.S. at 481, or that it 
is “job related,” Albemarle Paper Co., 422 U.S. at 425. 
Typically, as explained fully in Argument III below, the 
employer proves “business necessity” by “validating” the 
challenged device, or showing by statistical or other em­
pirical proof that it measures factors which are neces­
sary for satisfactory job performance.

The use of subjective criteria is not illegal per se un­
der Title VII, Rogers v. International Paper Co., 510 
F.2d 1340, 1345 (8th Gir. 1975), and an employer’s de­
cisions properly may be based on subjective factors, see, 
e.g., Hamilton v. General Motors Corp., 606 F.2d 576, 
580 (5th Cir. 1979). Requiring employers to prove busi­
ness necessity to justify subjective practices, however, 
will, in effect, condemn all such criteria— regardless of 
how they are used. Proof of “business necessity” will re­
quire an inordinate expenditure for validation devices, a 
substantial loss of discretion, and a considerable restruc­
turing of most employment decision making, if the result 
advocated by Watson is adopted by this Court. These 
expenditures by employers are not “minimal” as argued 
by Watson and her amici. Rather, professional indus­
trial psychologists usually must be hired to undertake 
the studies because most companies do not possess the 
expertise to do their own.15 In fact, the measurement of

15 In this regard, there are 2500 American Psychological Associa­
tion (APA) members who belong to its division of Industrial and 
Organizational Psychology, but only 1500 of its members belong to 
its Division of Evaluation and Measurement, APA Brief at 1. 
Since the Uniform Guidelines on Employee Selection Procedures 
cover some 666,000 employers (627,000 private and 39,000 public), 
see Appendix, each Division of Evaluation and Measurement mem­
ber will have- to perform evaluations for, on average, 444 employers. 
Clearly, this is an impossible task, making incredible the assurances



one simple characteristic reportedly costs up to $100,000, 
according to a 1979 study. Gwartney, Asher, Haworth & 
Haworth, Statistics, the Laio and Title VII: An Econo­
mist’s View, 54 Notre Dame Law. 633, 643. By simple 
extrapolation, it is evident that the measurement of 
multiple characteristics, now some 8 years after the 
Gwartney study, will cost far more, a burden that will 
be especially great upon small employers. And just because 
the federal government can afford to commission such a 
study, a fact pointed out by the NAACP Legal Defense 
Fund in its brief at 29, does not mean that smaller em­
ployers should be required to shoulder a similar burden. 
Indeed, even large employers have found it increasingly 
difficult to meet the validation requirements found in the 
technical literature. See Argument III, infra.16

by the APA that the studies can be performed for all employment 
decisions, and that the standards can be applied with a sufficient 
degree of reliability to make the impact theory a viable method of 
analysis for the 49,000 occupational titles recognized by the U.S. 
Bureau of the Census. See Alphabetical Index of Industries and 
Occupations (1980) at III.

16 In April 1976, David L. Rose, Chief of the Employment Section, 
Civil Rights Division, Department of Justice, stated in a memoran­
dum to the Deputy Attorney General :

Under the present [1970] EEOC Guidelines few employers are 
able to show the validity of any of their selection procedures, 
and the risk of their being held unlawful is high. Since not 
only tests, but all other procedures must be validated, the 
thrust of the present guidelines is to place almost all test 
users in a posture of noncompliance-, to give great discretion 
to enforcement personnel to determine who would be prose­
cuted; and to set aside objective selection procedures in favor 
of numerical hiring.

122 Cong. Rec. 22590 (daily ed. July, 1976) (Emphasis supplied). 
See Sharf, “ Personnel Testing and the Law,” Personnel Manage­
ment (K. Rowland & J. Ferris, eds.) (1982). The 1970 EEOC 
Guidelines on Employee Selection Procedures, 35 Fed. Reg. 12333, 
referred to in the memorandum, subsequently were supplanted by 
the 1978 Uniform Guidelines. Former EEOC staff psychologist 
James C. Sharf, has commented, however, that: “While the Uniform 
Guidelines offer at least a choice between validation strategies that 
the 1970 EEOC Guidelines did not, the documentation requirements 
now add considerably to the likelihood that a full compliance review 
will find an employer to be in noncompliance . . .” Sharf at 178.

20



Subjective practices, as shown in Argument III below, 
are not easily susceptible to the validation process be­
cause they are judgmental and nonquantifiable in na­
ture. See McDonnell Douglas, 411 U.S. at 802, 806 n.21 
(subjective processes involve “predictive evaluation[s] ” 
that are “ resistant to empirical proof” ) ; A Larson & 
L. Larson, supra, § 76.34 at 15-87 to 15-88. As a result, 
employers would have a virtually impossible burden in 
showing that a subjective practice or criterion has a busi­
ness necessity—a disadvantage that is especially unwar­
ranted where (as here) a court finds that the employer 
did not act with discriminatory intent:17

Because of these practical realities, if plaintiffs were 
permitted to rely on the statistically oriented impact 
theory in attacking subjective devices, any showing of a 
statistical disparity sufficient to establish a prima facie 
case would inevitably lead to a finding of discrimination. 
Intent “would become a largely discarded element” of the 
disparate treatment theory, and “the distinction between 
disparate impact and disparate treatment would dimin­
ish.” Griffin v. Bd. of Regents of Regency Universities, 
795 F.2d 1281, 1288 n.14 (7th Cir. 1986), quoting 
Atonio v. Wards Cove Packing Co., Inc., 768 F.2d 1120, 
1133 (1985), en banc, 810 F.2d 1477 (9th Cir. 1987).18

17 In addition, where a challenged practice or criterion is largely 
subjective, it is impossible to make a showing of causation, making 
the impact model’s rebuttal burden even more impractical. One 
commentator has observed that “ [ajpplying a disparate impact 
analysis to subjective decision making is troubling because statistics 
will not necessarily show that the subjective nature of the practice 
caused the racial or sex imbalance.” Denis, Subjective Decision 
Making: Does It Have a Place in the Employment Process?, 11 
Empl. Rel. L.J. 269, 277-78 (1985) (emphasis added). Causation 
cannot easily be shown in this context because a subjective prac­
tice or criterion is not easily “quantifiable or objectively verifiable,” 
Zahorik, 729 F.2d at 95, but rather is based on intent, Thus, the 
only meaningful inquiry when analyzing a subjective practice is 
not causation, but what can be inferred about intent from the 
evidence.

18 Watson and her amici rely on Atonio to argue that this Court 
should permit subjective criteria to be scrutinized under the im­
pact theory. Otherwise, they argue, it will be impossible to prove

21



22

Moreover, as the Seventh Circuit in Griffin has recog­
nized :

Rather than becoming an irrelevant factor as en­
visioned, race (or sex, etc.) could then become an 
overriding factor in employment decisions. Employ­
ers with work forces disproportionate to the minor­
ity representation in the labor force could then face 
the choice of either hiring by quota or defending 
their selection procedures against Title VII attack. 
We do not find such a result has been mandated by 
Congress or through Supreme Court interpretation 
of Title VII. Therefore, practices and policies such 
as . . . subjective decision making, . . . which are not 
facially neutral, lend themselves far better to scrutiny 
for intentional discrimination.

795 F.2d at 1288 n.14 (emphasis supplied) ,19
Another practical effect of the result advocated by 

Watson would be the elimination of subjectivity in hiring

intent that is hidden by a “routine adherence to past practices 
whose original purposes are undiscoverable.”  810 F.2d at 1484. 
Such an argument, however, overlooks the fact that statistics of 
sufficient magnitude can still be used to infer intent under the 
treatment theory. See Hazelwood, 433 U.S. at 307. In fact, the 
Fifth Circuit below permitted Watson to do so, emphasizing that 
“the plethora of statistics which Watson introduced at trial” was 
still relevant to her allegations, both in “establishing a prima facie 
case of discrimination” and in “attempting to prove that the rea­
sons proffered by the [Bank] for its action [were] either unworthy 
of credence or mere pretexts for discrimination.” 798 F.2d at 798. 
But the court found “no indication in the record, nor [was there] 
any suggestion . . .  by Watson . . . that the district court neglected 
to consider the statistical evidence presented by Watson in terms 
of evaluating the credibility of the Bank’s proffered explanations 
for its promotion decisions.”  Id. at n.13.

19 Clearly, Title VII does “not require employers . . .  to use 
racial quotas or to grant preferential treatment to racial minorities 
in order to avoid being charged with unlawful discrimination,” 
Local 28 of Sheet Metal Workers v. EEOC, 106 S.Ct. 3019, 3038 
(1986). See also Johnson v. Transportation Agency of Santa Clara 
County, 107 S.Ct. 1442 (1987). However, if plaintiffs are per­
mitted to rely on the disparate impact theory in attacking subjec­
tive practices or criteria, such a requirement may be the de facto 
result.



23

and promotion. But, clearly, Title VII does not (and 
should not) prohibit employers from using some element 
of subjectivity in making employment decisions, as long 
as subjective criteria are applied in a nondiscriminatory 
manner. As many courts have stressed, just because a 
practice or criterion is subjective does not mean that it 
is discriminatory per se. Hill v. Seaboard Coast Line 
R.R. Co., 767 F.2d 771, 775 (11th Cir. 1985) ; Wang v. 
Hoffman, 694 F.2d 1146, 1148 (9th Cir. 1982); Bauer 
v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981). In­
deed, as this Court stated in Johnson:

“  [i] t is a standard tenet of personnel administration 
that there is rarely a single ‘best qualified’ person 
for a job. An effective personnel system will bring 
before the selecting official several fully-qualified 
candidates who each may possess different attributes 
which recommend them for selection. Especially where 
the job is an unexceptional, middle-level craft posi­
tion, without the need for unique work experience or 
educational attainment and for which several well- 
qualified candidates are available, final determina­
tions as to which candidate is ‘best qualified’ are at 
best subjective.”

107 S. Ct. at 1457 n.17, quoting Brief for American 
Society for Personnel Administration as Amicus Curiae 
at 9 (Emphasis added).

Thus, for practical reasons, Watson should not be per­
mitted to use the disparate impact theory in her attack 
on the Bank’s subjective promotion criteria.
III. THE UNIFORM GUIDELINES AND PROFES­

SIONAL STANDARDS DO NOT SUPPORT THE 
PROPOSITION THAT ALL SUBJECTIVE DECI­
SIONS, SUCH AS THE PROMOTION DECISIONS 
MADE HEREIN, CAN AND SHOULD BE VALI­
DATED, AND THIS COURT SHOULD DECLINE 
TO SO RULE
A. Introduction

Watson and the amicus American Psychological Asso­
ciation (APA) claim that the technical standards and 
principles that have been developed by educational and



24

industrial psychologists for administering employee selec­
tion tests are fully applicable to the instant analysis. 
Specifically, the APA contends that the subjective criteria 
used by the supervisors herein to promote other employ­
ees instead of Watson should be judged against the pro­
cedures contained in the Uniform Guidelines on Em­
ployee Selection Procedures, 29 C.F.R. § 1607 (1978) 
(Uniform Guidelines), the Principles for the Validation 
and Use of Personnel Selection Procedures (1987) (Prin­
ciples), and the Standards for Educational and Psycho­
logical Testing (Standards) (1985).20

As shown below, however, the Uniform Guidelines, Prin­
ciples and Standards fail to provide meaningful guidance 
to this Court’s analysis of the instant case, because true 
validation of objective employee selection devices differs 
significantly from the so-called “validation” of subjective 
selection procedures or criteria. Moreover, even where 
subjective procedures have been validated does not mean 
they are reliable in predicting future job performance.21

B. Because The Uniform Guidelines And Professional 
Standards Provide Technical Assistance In The 
Administration Of Tests For Employee Selection, 
But Fail To Provide Meaningful Guidance In As­
sessing Many Promotion And Other Subjective Cri­
teria, They Do Not Support The Proposition That 
All Subjective Decisions Can And Should Be 
Validated

In its brief, the APA states that industrial psycholo­
gists “ routinely” validate “both objective devices such as

20 The Uniform Guidelines, Principles and Standards each serve 
a different purpose. The Guidelines presumably provide employee 
selection guidance that is consistent with Title VII and professional 
practice. The Standards, adopted by the APA and others, serve as 
a technical guide addressing a broad range of psychometric issues, 
one of which is employment. In contrast, the Principles, adopted by 
the Society for Industrial and Organizational Psychology, focus 
solely on the problems associated with test development and other 
employment decisions.

21 Reliability means the extent to which a particular subjective 
characteristic would receive the same evaluation from several peo­
ple. Ghiselli, Theory of Psychological Measurement 208 (1964).



25

standardized ability tests . . . and purely subjective . . . 
devices such as interviews, performance appraisal rat­
ings, constructed performance tests, nonscored experience 
and biographical data intake sheets, and structured be­
havioral sample tests.” APA Br. at 14. Conveniently, 
the APA then categorizes the “ three selection devices” 
used by the Bank herein as “ interviews, supervisor’s rat­
ings, and experience requirements,” id. at 4,122 and con­
cludes that the Bank “denfied] promotion to a member 
of a protected class” without applying “generally ac­
cepted professional standards,” id. at 23, such as the 
Uniform Guidelines, Principles, and Standards.

The APA’s characterization, however, of the Bank’s 
promotion criteria as “ selection devices”  points dramati­
cally to the fundamental flaw in its arguments. Cer­
tainly, the Guidelines, Standards and Principles provide 
meaningful assistance to educational and industrial psy­
chologists who are administering standardized “ tests” 
and reliable, structured “ selection devices.” But the de­
cisions at issue herein are promotion decisions that are 
not based upon standardized “ tests” or reliable, struc­
tured “ selection devices,” but rather upon criteria that 
are not readily quantifiable and, therefore of unknown 
reliability. In fact, the Standards, Principles and Uni­
form Guidelines, examined individually below, are not 
even helpful in analyzing the subjective promotion deci­
sions made herein because each presumes the reliability 
of the “ selection device,”  a presumption unwarranted in 
this case (and indeed in most selection decision making 
based on subjective criteria).

First, the APA’s reliance upon the 1985 Standards in 
the promotion context is simply misplaced. In fact, the 
Standards themselves distinguish the true “selection de- 22

22 Clearly, the bank relied on many more criteria than the three 
identified by the APA. See District Court decision at 8-9. The 
creation by the APA of these three “convenient categories,” there­
fore, amounts to little more than the setting up—and knocking 
down-—of the “straw man.”



26

cisions” that they were designed to address from “promo­
tion decisions” such as those made herein:

Promotion decisions are distinguished from selec­
tion decisions largely by the fact that the individual 
who is being considered for promotion has an estab­
lished job performance record in the organization. 
Thus, the employer may know considerably more 
about that individual than is known about new ap­
plicants. An employer will need to decide to what 
extent job performance information should be com­
bined with test information.

Id. at 59 (emphasis added). Moreover, it is clear that 
the Standards “were never intended to be, nor are they 
well suited to become, rules of law.” Comment, Courts, 
Psychologists, and the EEOC’s Uniform Guidelines: An 
Analysis of Recent Trends Affecting Testing as a Means 
of Employee Selection, 36 Emory L.J. 203, 218 (Winter 
1987). Rather, the Standards contain their own “ cau­
tions”  as follows:

The Standards is a technical guide that can be used 
as the basis for evaluating testing practices. Eval­
uating the acceptability of a test or test application 
does not rest on the literal satisfaction of every pri­
mary standard in this document, and acceptability 
cannot be determined by using a checklist, Specific 
circumstances affect the importance of individual 
standards. Individual standardIs should not be con­
sidered in isolation. Therefore, evaluation accept­
ability involves the follcnoing: professional judgment 
that is based on a knowledge of behavioral science, 
psychometrics, and the professional field to which 
the tests apply; the degree to which the intent of this 
document has been satisfied by the test developer and 
user; the alternatives that are readily available; and 
research and experiential evidence regarding feasi­
bility.

Standards at 2 (emphasis added). As explained, the 
Standards recognize that subjective criteria can not be 
quantified because they are inherently intent-based.



27

Inexplicably, the APA in its brief, calls these Stand­
ards “  [t] he most authoritative source . . .  to be applied 
to determine the technical adequacy of assessment de­
vices, the appropriateness of specific applications of these 
devices, and the reasonableness of inferences based on 
the results of these devices. . . .” Br. at 6. However, 
the brief fails to point out that:

The purpose of publishing the Standards is to pro­
vide criteria for the evaluation of tests, testing prac­
tices, and the effects of test use. Although the evalua­
tion of the appropriateness of a test or application 
should depend heavily on professional judgment, the 
Standards can provide a frame of reference to assure 
that relevant issues are addressed. The Standards 
does not attempt to assign precise responsibility for 
the satisfaction of individual standards. To do so 
would be difficult, especially since much work in test­
ing is done by contractual arrangement. However, 
all professional test developers, sponsors, publishers, 
and users should make reasonable efforts to observe 
the Standards and to encourage others to do so. 

Standards at 2. Thus, given their limited function as 
merely a “ frame of reference,” Standards at 2, the APA’s 
reliance upon these Standards as the “ authoritative 
source” is clearly suspect.

Similarly, the Principles, by their very terms, are of 
limited assistance to the analysis herein. Significantly, 
the Principles declare that “ there is no clear path to 
truth” in determining whether bias exists. Principles at 
10. “A difference in criterion scores . . . could reflect 
bias in raters, equipment, or conditions, or it might re­
flect genuine differences in performance.” Id. (Emphasis 
added).

If bias is not measurable, or even readily recognizable, 
it is clear that there is no way to “validate” the types 
of criteria used by the Bank herein that will be of much 
use to employers or courts in determining whether a 
promotion system is discriminatory. From a legal point 
of view, the mere fact that there is a difference in the re­
sult of a selection device— even a patterned interview—•



2 8

does not mean that the difference was a result of dis­
crimination. Stated differently, the so-called validation 
of subjective criteria will not “ eliminat[e] the most com­
mon nondiscriminatory reasons” for the employer’s ac­
tions. Burdine, 450 U.S. at 254.

Clearly, therefore, the Principles may be helpful to 
industrial psychologists as “principles of good practice,”  
Principles at 1, but they are obviously not appropriate 
as legal rules of minimum employer behavior. Further­
more, if literally applied, the Standards and the Prin­
ciples would make the burden of defending unstructured 
appraisals substantially greater than that of defending 
standardized tests since each evaluator’s decision making 
would have to be shown to be valid, whereas standardized 
testing does not treat each test administrator as a source 
of bias. See Standards at 16.

Similarly, the Uniform Guidelines provide little as­
sistance in determining whether promotions and other 
truly subjective decisions are discriminatory. First, the 
language of the Guidelines mirrors the Standards in many 
respects, and were, in fact, established to be consistent 
with the 1974 Standards. See 29 C.F.R. § 1607.5(C). 
Of course, as shown above, the Standards clearly were 
not intended to serve as legal requirements, especially 
when dealing with promotion decisions. See 36 Emory 
L.J. at 251. Second, even though the Guidelines ostensi­
bly apply to “any employment decision,” 29 C.F.R. 
§ 1607.2(B), the inability to eliminate bias and other 
human-error problems renders the Guidelines nearly 
valueless in measuring subjective criteria. Even the 
APA’s brief, in its discussion of the methods by which 
subjective decisions theoretically can be “validated,” Br. 
at 9-22, admits that bias can enter the validation proc­
ess in many forms.213 23

23 The APA’s brief, in explaining the many ways human judg­
ment can enter the process, states as follows:

Industrial psychologists and others who create a test or other 
selection procedure must choose the domain to be assessed, 
construct the items to which test takers will respond or select



29

Even if, for purposes of argument, the Guidelines are 
taken at face value— that they apply to “ promotion” and 
other subjective decisions— such a bold assertion simply 
makes the Guidelines themselves overbroad. The APA 
treats the Guidelines as if they are substantive rules, en­
titled to great deference in this case.* 25 But they are not. 
Rather, as the Second Circuit has stated, the Guidelines 
“ are useful as a source of guidance, but they need not 
be adhered to in every detail as if they were substantive 
regulations.”  Guardians Ass’n of New York City v. Civil 
Service, 630 F.2d 79, 110 (2d Cir. 1980), cert, denied, 101 
S.Ct. 3083 (1981). As one commentator stated:

To demand in the Guidelines a higher level of test 
development and validation than is currently attain­
able is improper. It places virtually all employers 
in a posture of noncompliance and enables the en-

the behaviors to be observed, develop scoring scales and norms 
so that results can be interpreted, prepare manuals, and most 
importantly, ensure that the instrument is psychometrically 
sound.

Id. at 9. The brief also states that the validity of any performance 
appraisals may be dependent upon “the race of the rater and ratee,” 
id. at 18, and the “skill of the rater,”  id. at 20. Even the Standards 
themselves attempt to limit the effect of “ [e]Xpert judgment” when 
substantiating a claim of construct-related evidence. Standards at 
61. Certainly potential bias renders this so-called validation little 
more than another human effort to keep discrimination out of the 
selection process—not the scientific, purely quantifiable, air-tight 
process claimed by the APA. Thus, the APA’s own description of 
the Standards shows that individual judgment permeates their 
application. As we showed in Arguments IA and IB, such judg­
ments are properly evaluated under the disparate treatment theory.

25 In 1971, this Court in Griggs at 434 stated that EEOC’s 1970 
Guidelines on Employee Selection Procedures, 35 Fed. Reg. 12,333 
(1970), withdrawn, 43 Fed. Reg. 38,312 (1978) were “entitled to 
great deference.” Since then, courts have criticized the 1970 
Guidelines, as well as their 1978 replacements, either as outdated 
or as unsupported by current interpretations of Title VII. See, e.g., 
Washington v. Davis, 426 U.S. 229 (1976) (Burger, C.J., dissent­
ing) . See also, Report by the U.S. General Accounting Office, 
Uniform Guidelines on Employee Selection Should he Reviewed and 
Revised (1982).



30

forcement agencies to use the Guidelines as a litiga­
tion vehicle against even those employers who have 
instituted “ state-of-the-art” selection procedures. 

Potter, Employee Selection: Legal and Practical Alterna­
tives to Compliance and Litigation at 6 (National Founda­
tion for the Study of Equal Employment Policy, 2d ed. 
1986).

Accordingly, it is clear that the Guidelines, Principles 
and Standards fail to provide meaningful guidance in 
analyzing whether promotions and many other subjective 
decisions have been made in a discriminatory manner, 
and they certainly do not support the APA’s argument 
that all subjective decisions can and should be truly 
“validated.” While a form of “validation,” loosely defined, 
can be used in an attempt to restructure subjective cri­
teria to make them more quantifiable (i.e., the use of a 
“ scored” interview in place of “ impressions or feelings” ), 
the validation procedures contained in the Guidelines, 
Standards and Principles clearly are not useful in re­
solving the issues before the Court in the instant case.

CONCLUSION
For the foregoing reasons, EEAC respectfully urges 

that the decision of the Fifth Circuit, disallowing the 
application of the disparate impact theory to the sub­
jective promotion criteria at issue in this case, be affirmed.

Respectfully submitted,

Robert E. W illiams 
Douglas S. McDowell 
Edward E. Potter, P.C.
Garen E. Dodge *

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

November 27,1987 * Counsel of Record



la

[SEAL]
APPENDIX

U.S. EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION 

Washington, D.C. 20507

November 20, 1987
Garen Dodge 
McGuiness & Williams 
1015 15th Street, N.W.
Washington, D.C. 20005

Dear Mr. Dodge:

This letter is in response to the request for data on 
November 10, 1987.

JEl The data are enclosed.
□  We substituted data which may be useful (see 

comments below).
□  We are unable to fill your request in its entirety 

because

Comments:

If you need further assistance, please contact Clarice 
Bryce, at (202) 634-7062.

Sincerely,

/s /  Doris M. Werwie 
D oris M. W erwie 
Survey Division



2a

RECORD MAINTENANCE REQUIREMENTS

UNIFORM GUIDELINES ON 
EMPLOYEE SELECTION PROCEDURES

Type of 
Employer

More than 
100

Employees

Between 15 
and 100 

Employees

Private 45,000 582,000

State and Local Government 3,500 8,500

Elementary and Secondary Districts 5,000 9,000

Higher Education 3,000 —

Joint Apprentice Programs — 5,000

Referral Unions 3,000 — .

Federal Government 2,000 —

Total by Size Group 

Total

61,500

666,000

604,500



3a

Employer and Employment Coverage

Uniform Guidelines on Employee Selection Procedures

Employment 
Size Ranges

Total
Employers 1

Total
Employment 
(In Millions)

Total, 15 or more 666,000 71.2
15-99 604,500 29.0

100-249 27,600 4.1
250 or more 33,900 38.1

1 Includes joint apprentice programs and referral unions.