Griggs v. Duke Power Company Brief for Petitioner

    113 ^

I n  th e

l^upmu? (Enurt rtf tlî  WnxUb &M?b
October T erm , 1969 

No. 1405

W il l ie  S. Griggs, et al.,

v.
Petitioners,

D u k e  P ower C ompany , a  Corporation,
Respondent.

ON W RIT OE CERTIORARI TO T H E  U N ITED  STATES COURT OF APPEALS 
FOR T H E  FO U R TH  CIRCUIT

BRIEF FOR PETITIONER

JACK GREENBERG 
JAMES M. NABRIT, III  
NORMAN C. AMAKER 
WILLIAM L. ROBINSON 
LOWELL JOHNSTON 
VILMA M. SINGER 
10 Columbus Circle 
New York, New York 10019

GEORGE COOPER 
CHRISTOPHER CLANCY 
401 West 117th Street 
New York, New York 10027

Attorneys for Petitioners

ALBERT J. ROSENTHAL 
435 West 116th Street 

New York, New York 10027 
Of Counsel

CONRAD O. PEARSON 
203% E. Chapel Hill Street 
Durham, North Carolina 17701

JULIUS LeVONNE CHAMBERS 
ROBERT BELTON 
216 West 10th Street 
Charlotte, North Carolina 28202

SAMMIE CHESS, J r .
622 E. Washington Dr.
High Point, North Carolina 27262



I N D E X

Jurisdiction ....................................................................  1

Questions Presented ...................................................... 2

Statutory Provisions Involved .....................................  2

Statement of the Case ..................................................  4

Summary of Argument ................................................  9

A rgum ent  ......................................................................  16

PAGE

I. Title VII Requires That Tests and Diploma 
Requirements Be Related to Job Performance 
Needs Where Such Requirements Unequally Ex­
clude Blacks Prom Employment Opportunities. 
In Failing To Insist Upon Such Job Related­
ness, The Decision of the Court Below Invites
Evasion of Title VII .........................................  18
A. Tests and Diploma Requirements Have A 

Vast Discriminatory Potential ...................  18
B. The Established Method of Guarding

Against Discriminatory Test and Educa­
tional Requirements, While Protecting the 
Reasonable Needs of an Employer, is to 
Insist that Such Requirements be Related to 
Job Performance Needs ..............................  22

II. The Record Below Offers No Basis for Finding 
That the Diploma/Test Requirement Meets this 
Job-Relatedness Standard .................................. 30
A. The Diploma/Test Requirement Clearly

Has a Prejudicial Effect on Black Workers 31



11
PAGE

B. It Cannot Be Assumed Without Supporting
Evidence That the Continuation of This 
Prejudicial Requirement is Related to 
Duke’s Job Performance Needs .................  32

C. Duke Has Made No Study or Analysis or 
Introduced Any Evidence At All That the 
Diploma/Test Requirement is Related to Its
Job Performance Needs ..............................  39
1. The High School Diploma Requirement 41
2. The Test Requirement ............................  44

III. Duke’s Discriminatory Practices Derive No Pro­
tection Prom Section 703(h) of Title VII ........  46

C onclusion  ..................................................................................... 51

B r ie f  A p p e n d ix :

Decision of EEOC, Dec. 2, 1966, CCH, Employ­
ment Practices Guide, fll7,304.53 ......................Br. Ap. 1

Decision of EEOC, Dec. 6, 1966, CCH, Employ­
ment Practices Guide, Tfl7,304.5 ........................Br. Ap. 3

EEOC, Guidelines on Employee Selection Proce­
dures, 35 Fed. Reg. 12333 (1970) ..................... Br. Ap. 8

Mitchell, Albright & McMurray, Biracial Valida­
tion of Selection Procedures in a Large South­
ern Plant, in Proceedings of 76th Annual Con­
vention of American Psychological Association,
Sept., 1968 ................................. ................ ..........Br. Ap. 6



Ill

T able of A utho rities

Cases:
PAGE

Arrington v. Massachusetts Bay Transportation Au­
thority, 306 F.Supp. 1355 (D. Mass. 1969)..............11,24

Choate v. Caterpiller Tractor Co., 402 F.2d 357 (7th
Cir., 1968) .......... ........................................................  16

Colbert v. H.K. Corporation, C.A. No. 11599 (N.D.
Ga. July 6, 1970) (appeal noticed August 3, 1970).... 24

Dobbins v. Local 212, IBEW, 292 F.Supp. 413 (S.D. 
Ohio 1968) .................................................................24,26

Fawcus Machine Co. v. United States, 282 U.S. 375
(1931) ................................ ........ .................................  29

FTC v. Colgate Palmolive Co., 380 U.S. 374 (1965)..... 29
FTC v. Mandel Bros., 359 U.S. 385 (1959).................  29

Gaston County, North Carolina v. United States, 395
U.S. 285 (1969) .......... ...............................................11, 21

Gomillion v. Lightfoot, 364 U.S. 339 (1960)................ . 25
Gregory v. Litton System, Inc., —— F.Supp.------; 63

Lab. Cas. 1J9485 (C.D. Calif. July 28, 1970).............. 27
Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir.

1970) ............................................................ ........17,27,28
Griggs v. Duke Power Co., 292 F.Supp. 243 (M.D.

N.C. 1968)  ...............................................................  5
Guinn v. United States, 238 U.S. 347 (1915) .................. 25

Hansen v. Hobson, 269 F.Supp. 401 (D.D.C. 1967)....... 34

Lane v. "Wilson, 307 U.S. 268 (1938)............................  25
Local 53, International Assoc, of Heat & Frost Insula­

tors and Asbestos Workers v. Vogler, 407 F.2d 1047 
(5th Cir., 1969) ............................................................ 26



PAGE

Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (5th Cir., 1969), cert.
denied, 397 U.S. 919 (1970) ................................16,26,

Louisiana Financial Assistance Comm’n v. Poindexter, 
389 U.S. 571 (1968), affirming 275 F.Supp. 833 (E.D. 
La. 1967) ....................................................................

Miller v. International Paper Co., 408 F.2d 283 (5th 
Cir. 1969) ....................................................................

Parham v. Southwestern Bell Telephone Co., -----
F.Supp. — , 60 Lab. Cas. U9297 (W.D. Ark. 1969)
(appeal noticed, 8th Cir., No. 1969) ................. .......24,

Penn v. Stumpf, 308 F.Supp. 1283 (N.D. Calif. 1970).... 
Porcelli v. Titus, 302 F.Supp. 726 (N.D.J. 1969) ...........

Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D. 
Va. 1968) .................................................. ..................

Ranjel v. City of Lansing, 293 F.Supp. 301 (W.D.
Mich. 1969) ................................ ................................

Robinson v. Lorillard Co., 62 Lab. Cas. 1J9423 (N.I). 
N.C. 1970) ...................................................................

Udall v. Tallman, 380 U.S. 1 (1965) ....................... .....
United States v. American Trucking Assn., 310 U.S.

534 (1940) .....................................................................
United States v. Hays Int’l Corp., 415 F.2d 1038 (5th

Cir. 1969) ........ ............................................................
United States v. H.K. Porter Co., 296 F.Supp. 40 

(N.D. Ala. 1968) (appeal noticed, 5th Cir., No.
17703) ....................................................................  24,

United States v. Public Utilities Comm., 345 U.S. 295
(1953) ................................................................. .........

United States v. Sheetmetal Workers, Local 36, 416 
F.2d 123 (8th Cir., 1969) ....................................16, 24,

28

25

16

30
24
24

26

18

16

29

29

26

26

29

26



V

Statutes:
28 U.S.C. § 1254(1) .........................................................  1

42 U.S.C. §2G00e et seq., Title VII of the Civil Rights 
Act of 1964 ...................................................................  2, 3

Section 703(a) (1), 42 U.S.C. § 2000e-2(a) (1)........  18
Section 703(a) (2), 42 U.S.C. § 2000e-2(a) (2)........  28
Section 703(c)(2), 42 U.S.C. § 2000e-2(c) (2)........  28
Section 703(f), 42 U.S.C. § 2000e-2(f) .................  50
Section 703(g), 42 U.S.C. § 2000e-2(g)...................  50
Section 703(h), 42 U.S.C. § 2000e-2(h)...... 28, 46, 48, 50
Section 706(g), 42 U.S.C. § 2000e-5(g)...................  28

Federal Regulations on Testing:
EEOC, Guidelines on Employment Testing Procedures 

(1966) .................................    22,47

EEOC, Guidelines on Employee Selection Procedures,
35 Fed. Reg. 12333 (August 1, 1970) ............20, 23, 30, 35

U.S. Department of Labor, Validation of Employment 
Test by Contractors and Subcontractors Subject to 
the Provisions of Executive Order No. 11246, 33 Fed.
Reg. 14391 (1968) .................................................... 21,35

Other Authorities:
110 Cong. Rec. 9024-42 (1964) ....................................  49
110 Cong. Rec. 13492 (1964) .........................................  49
110 Cong. Rec. 13503-05 (1964) ...........................   49-50
110 Cong. Rec. 13724 (1964) ..........................................  50

PAGE



VI
PAGE

88th Cong., 1st Sess. 2-3, H.R. Rep. No. 570 (1963) .... 18
88th Cong., 1st Sess. 138-41, H.R. Rep. No. 914 (1963) 18
88th Cong., 1st Sess., Hearings on Equal Employment 

Opportunity before the Subcomm. on Employment 
& Manpower of the Senate Comm, on Labor & Public 
Welfare (1963) ............................................... ...........  18

88th Cong., 1st Sess., Hearings on Equal Employment 
Opportunity before the General Subcom. on Labor 
of the House Comm, on Education & Law (1963) ..... 18

Bureau of Labor Statistics, Employment and Earnings,
Table A-3 Unemployment Indicators, June 1970 ......  28

Blumrosen, Seniority and Equal Employment Op­
portunity: A Glimmer of Hope, 23 Rutgers L. Rev.
268 (1969)  ........... ....................................................  28

California, Pair Employment Practices, Equal Good 
Employment Practices, in CCH Employment Prac­
tices Guide 1(20,861 ................................. .................... 23

Coleman, J., Equality of Education Opportunity (1966) 19
Colorado Civil Rights Commission Policy Statement on 

the Use of Psychological Tests, in CCH, Employ­
ment Practices Guide 1(21,060 .........    23

Cooper & Sobol, Seniority and Testing Under Fair Em­
ployment Laws, 82 Harv. L. Rev. 1598 (1969) ....19, 27, 28 

1 Cronbach, Essentials of Psychological Testing (2d ed. 
1960) .................................................   36

Education and Jobs: The Great Train Robbery (1970), 
summarized in Berg, Rich Man’s Qualifications for
Poor Man’s Jobs, Trans-Action, Mar. 1969 ...............  37

EEOC Decision No. 70-630, Case No. AT 68-3-824E 
(Mar. 17, 1970), in CCH, Fair Employment Practices 
Guide 1(6136 ...........................    30



vn

EEOC Decision No. 70-501, YAT-633 (Jan. 29, 1970), 
in CCH, Fair Employment Practices Guide H6112 .... 30 

EEOC Decision Case No. N06809-327E (June 18,1969), 
in CCH, Pair Employment Practices Guide H8516 .... 22 

EEOC Decision 70-552 (Feb. 19, 1970), in CCH, Fair
Employment Practices Guide H4239 .......................22, 30

EEOC Decision (Dec. 6, 1966), in CCH, Employment
Practices Guide, *117,301.58 ....................................... 22, 23

EEOC Decision (Dec. 2, 1966), in CCH, Employment 
Practices Guide, TT17,304.54 ....................................... 19, 22

Freeman, Theory and Practice of Psychological Test­
ing (3rd ed. 1962) ........................................................  36

Ghiselli and Brown, Personnel and Industrial Psy­
chology (1955) ................... - .......................................  36

Ghiselli, E., The Generalization of Validity, 12 Person­
nel Psychology 397 (1959) ................... ........... .......... 34

Ghiselli, E., The Validity of Occupations Aptitude 
Tests (1966) ...................... ...... ......................... ..... ....32,33

PAGE

Hearings before the United States Equal Employment 
Opportunity Commission on Discrimination in White 
Collar Employment, New York City, Jan. 15-18, 1968 38

Kirkpatrick, J., et al., Testing and Fair Employment 
(1968) .......................................................................... 19

Lawshe and Balma, Principles of Personnel Testing 
(2nd ed. 1966) .............................................................  36

Mitchell, Albright & McMurry, Biraeial Validation of 
Selection Procedures in Large Southern Plant, in 
Proceedings of 76th Annual Convention of the Ameri­
can Psychological Association, Sept. 1968 .............  32



V l l l

Motorola Decision, reprinted in 110 Cong. Rec. 9030- 
9033 (1964) .......................... .................. ....................  49

Pennsylvania Human Relations Commission, Affirma­
tive Action Guidelines for Employment Testing’, in 
CCH, Employment Practices Guide U17,195 ....... . 23

Report of the National Advisory Commission on Civil 
Disorders (Bantam ed. 1968) ....................................19, 28

Ruch, Psychology and Life (5th ed. 1958) .................  36

Science Research Assoc., Inc., A Subsidiary of IBM, 
Business And Industrial Education Catalog (1968- 
69) ................................................................................  35

Siegel, Industrial Psychology (1962) ..............................  36
Super and Crites, Appraising Vocational Fitness (Rev. 

ed. 1962) ......................................................................  33

Thorndike, Personnel Selection Tests and Measurement 
Techniques (1949) ......................................................  36

Tiffin and McCormick, Industrial Psychology 119 (5th 
ed. 1965) .................................................   36

U.S. Bureau of the Census, U.S. Census of Population: 
1960, Vol. 1, Part 35, Table 47, p. 167......................... 20

Wall St. J., Feb. 9, 1965, at 1, Col. 6 ............................  21
Wonderlic Personnel Test Manual 2 (1961) ................ 37

PAGE



In t h e

(Eourt at tip? Mnitrii £?iaipa
O ctober T erm , 1969 

No. 1405

W il l ie  S. Griggs, et al.,
Petitioners,

v.

D u k e  P ower C ompany , a Corporation,
Respondent.

ON W R IT  OF CERTIORARI TO T H E  U N ITED  STATES COURT OF APPEALS 
FOR THE, FO U R TH  CIRCUIT

BRIEF FOR PETITIONER

O pinions Below

The opinion of the Court of Appeals and accompanying 
dissent of Judge Sobeloff is reported at 420 F.2d 1225 
(1970). The opinion of the District Court for the Middle 
District of North Carolina is reported at 292 F. Supp. 243 
(1968). All opinions are reprinted in the Appendix.

Jurisdiction

The judgment of the Court of Appeals for the Fourth 
Circuit was entered January 9, 1970 and petition for a writ 
of certiorari was filed in this Court on April 9, 1969 and 
was granted on June 29, 1970. This Court’s jurisdiction 
rests on 28 U.S.C. § 1254(1).



2

Questions Presented

Whether the intentional use of psychological tests and 
related formal educational requirements as employment 
criteria violates the race discrimination prohibition of 
Title VII, Civil Eights Act of 1964, where:

(1) the particular tests and standards used exclude Ne­
groes at a high rate while having a relatively minor 
effect in excluding whites, and

(2) these tests and standards are not related to the em­
ployer’s jobs.

Statutory Provisions Involved

jT

K

United States Code, Title 42:

§ 2000e-2(a) [703(a) of Civil Rights Act of 1964]

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

(1) to fail or refuse to hire or to discharge any indi­
vidual, 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 na­
tional origin; or /"'"'X

I
(2) to limit, segregate, or classify brs\<miployees in any

way whicFi would depVWe^or to deprive any
individual of ' employment op^rtunitieT'oTTther- 
wise x d v e r s e l O ^ Tm^status as an employee, 
because, ofjsnch individual’s race, color, religion, sex, 
or national origin.



3

§ 2000e-2(h) [§ 703(h) of Civil Rights Act of 1964]
(h) Notwithstanding any other provision of this title, 

it shall not be an unlawful employment practice for 
an employer to apply different standards of com­
pensation, or different terms, conditions, or priv- 

, f  ileges of employment pursuant to a bona fide senior- 
J i£ ~ i^ A tta d l^ te m , or a system which measures 

earnings by quantity or quality of production or to 
employees who work in different locations, provided 
that such differences are not the result 01 an inten­
tion to discriminate because of race, color, religion, 
sex, or national origin, nor shall it be an unlawful 
employment practice for an employer to give and to 
act upon the results of any professionally developed 
ability tejjt provided that such test, its admimstra- 
tion or action upon the results is not designed, in- 
tended or used to discriminate because of race, color, 
religion, sex or national origin. It shall not be an un­
lawful employment practice under this title for any 
employer to differentiate upon the basis of sex in 
determining the amount of the wages or compensa­
tion paid or to be paid to employees of such em­
ployer if such differentiation is authorized by the 
provisions of section 6(d) of the Fair Labor Stan­
dards Act of 1938, as amended (29 U.S.C. 206(d)).

§2000e-5(g) [§ 706(g) of Civil Rights Act of 1964]
(g) If the court finds that the respondent has inten­

tionally engaged in or is intentionally engaging in 
an unlawful employment practice charged in the 
complaint, the court may enjoin the respondent from 
engaging in such unlawful employment practice, 
and order such affirmative action as may be appro­
priate, which may include reinstatement or hiring



4

of employees, with or without back pay (payable 
by the employer, employment agency, or labor or­
ganization, as the case may be, responsible for the 
unlawful employment practice). Interim earnings 
or amounts earnable with reasonable diligence by 
the person or persons discriminated against shall 
operate to reduce the back pay otherwise allowable. 
No order of the court shall require the admission or 
reinstatement of an individual as a member of a 
union or the hiring, reinstatement, or promotion of 
an individual as an employee, or the payment to 
him of any back pay, if such individual was refused 
admission, suspended, or expelled or was refused 
employment or advancement or was suspended or 
discharged for any reason other than discrimination 
on account of race, color, religion, sex or national 
origin or in violation of section 704(a).

against their employer, the Duke Power Company (herein­
after Duke). The petitioners claim that various aspects 
of Duke’s promotional policies effectively deny them equal 
opportunity to jobs above the laborer category. The action 
was commenced following proceedings before the Equal 
Employment Opportunity Commission (hereinafter some­
times “EEOC”) in which reasonable cause was found to 
believe that the company was engaging in gross practices 
of racial discrimination (A. 2b-4b).

All the petitioners are employed at Duke’s Dan River 
Steam Station, a power generating facility located at 
Draper, North Carolina (A. 55a). The employees at this

Statement o f  the Case

This is a class action under Ti 
Act of 1964 brought by a group o:

the Civil Rights 
imbent black workers



5

plant are divided into five departments: Operations, Main­
tenance, Laboratory and Test, Coal Handling, and Labor. 
(Because employees in all departments except Coal Han­
dling and Labor work inside the plant these other depart­
ments will be referred to collectively as the “inside” depart­
ments).1 n / o A  a'

Black workers have been employed at this plant for a 
number of years. There are now 14 blacks out of 95 total 
employees (A. 19b). However, these blacks have been 
tightly controlled. The District Court found,

“at some time prior to July 2, 1965, Negroes were rele- 
gated J ^ J h e J L la te 'F lD J  egarEneiff and prevented 
"access to other, departments by reason of their race.” 
(A. 32a).

(  <

As might be expected, the Labor Department is the least 
desirable one in the plant and is the lowest paid. Moreover, 
blacks have even been denied the better paying jobs in that 
department. The maximum wage ever earned by a black 
worker in the Labor Department, including some with al­
most 20 years seniority, is $1.645 per hour (A. 109b). This 
maximum is less than the minimum ($1,875) paid to any 
white in the plant (A. 105b-108b). It is drastically less than 
the wages paid to whites with comparable seniority in the 
other departments where top jobs pay $3.18 or more per 
hour (A. 72b).2

The first breach in this practice of relegating black work­
ers to low level positions in the Labor Department did not 
occur until August 6, 1966 (more than a year after the July 
2, 1965 effective date of Title VII) when a black laborer

1 There are also a few non-departmental jobs at the plant, all 
of which are located inside except the watchmen (A. 58a).

2 These pay scales are based on 1967 data in the record; but 
the same disparity continues to exist today.



6

with a high school diploma and almost 13,.yjears of seniority 
was promoted to a “learner” position in the Coal Handling 
Department paying $1.95 per honr (A. 83b, 109b, 126b). 
At, this time, whites with similar seniority and less educa- 

lSon were eSrHiJig' 126b).

By the time of trial, Duke had apparently relented from 
its formal practice of restricting all black workers to low 
level jobs in the Labor Department. However, the effect of 
that practice was largely maintained by a company policy 
precluding anyone ..from transferring to Coal Handling or 

J-p oae.oi.the"inside denartment&JMilfigs he erffier (1) had a 
high school diploma, or (2) achieved a particular score on 
each of two quickie “intelligence” tests—the 12-minute 
Wonderlic Test and the 30-minute Bennet (sometimes re­
ferred to as the “Mechanical AA”) (A. 20b-22b). Only 3 
or 4 of the 14 black workers at Dan River could satisfy 
these requirements.3 The other 10 or 11 black workers were 
destined to a permanent low paid laborer status.

In contrast to its effect on black workers, these high 
school and test requirements had no application to anyone 
already in the Coal Handling Department or an inside de­
partment, either as a requirement for maintaining his 
present position within his departmental area (A. 102a) 
or for securing promotion to jobs paying $3.18 per hour 
or more (A. 72b). All of the white workers in the plant were 
in these better departments.

3 Three of the black workers had high school diplomas (A. 109b, 
126b). The Court of Appeals found that a fourth black worker, 
Willie Boyd, had acquired an equivalency diploma which the com­
pany would accept in lieu of the regular diploma. Willie Boyd’s 
status is not entirely clear on the record. However the situation 
as to him was mooted by the partial relief granted in the Court 
of Appeals. See pp. 7-8, infra.



7

Thus, for example, Clarence M, Jackson, a "black with 
7th grade education hired in 1951 as a laborer, remained 
one in 1967 (at $1,645 per hour) and was unable to transfer 
to a better job (A. 109b). By contrast, Jack O’Dell, a white 
with 5th grade education, hired in 1951 as a helper, had 
gained promotion to Coal Handling Operator by 1967 (at 
$2.79 per hour) (A. 106b-126b). Jady Martin, a white with 
7th grade education hired in 1956 as a helper, had worked 
his way to Mechanic “B” in 1965 and was able to gain pro­
motion to Mechanic “A” in 1966 (at $3.41 per hour) (A. 
106b-126b). Rollins, a white with 7th grade education, is 
the labor foreman; he is responsible for supervising blacks, 
several of whom have more formal education. Neither 
O’Dell, Rollins nor Martin was ever called upon to take a 
test.

rN.nl The first of Duke’s transfer requirements (high school 
\Jr J ' diplomSr)“had been in effect for a number of years "prior "to 

tins" action (A. 20b). The second (passing a test battery) 
"") was newly adopted in September, 1965, in response to a 

request from a number of white non-high school graduates 
'%S / in  the Coal Handling Department who wanted an alterna- 

>|̂ V tive chance for promotion to inside jobs (A. 85a-87a). Both 
c ~A # requirements were challenged by petitioners on the grounds 
^  ! th a t j l)  they imposed a special burden on black employees

.at Dan River not similarIy~fi^osM'.dnTwliHe'employees.
and (2) even if similarly imposed that they cnnstituted dis- 
criminatory requirements which are not related to the job 
npeds of Duke. ^

\ i A

\ IThe District Court denied relief on either ground. The
f V w  Court oJ3^ea^Jb^»w^mj^aqcegted petitioners’ claim that 
\  ‘̂ ^requirem ents were not_similarlyH&posh<3 insofar as

Elites hired prior Jo  either requirement were free to be 
^omoted without ever jgom^y^g wMS c^ex^ranS ously  

jk / TimeRblachs were not T h rc o T ^ p ro p e r ly ^ e ^ M .'B a ^ 'A



- hired prior_ln. either requirement must be given the same
promotional opportunities as..contemporaneously hired
whites—i.e., freed of the burden of either having- a diploma 
or passing a test. This aspect of the Court of Appeals deci- 
sion, on which Supreme Court review has not been sought, 
provided full relief to 7 of the 11 black workers who could 
not meet the diploma/test requirement. The problem of the 
remaining 4 blacks, as to whom the Court of Appeals de­
nied relief with Judge Sobeloff dissenting, is now before

I this Court.
M These four black workers were hired between

h av a^ ^  plant since then (A.
^ 109b). Their formal educations range from "3pTgradeTb 

10th grade, and one has also received special training in 
auto mechanics’ school (A. 126b). All four are in laborer
positions paying $1.53 to $1,645 per hour (A. 109b). Duke 
has conceded TKaF^eseTaEorers might perform well in 
better paid departments such as Coal Handling, if given 
the chance (A. 124b); and that many of the black laborers 
have worked with the Coal Handling Department for many 
years and thereby gained experience and familiarity with 
the operations of the department (A. 106a, 124b). The 
company’s job descriptions prepared in connection with this 
case indicate that the functions of Coal Handling employees 
are similar in many respects to those of laborers (A. 48b- 
49b, 65b-66b). However, Duke has made no attempt to 
assess the job performance, work experience or other quali­
fications of these four longtime laborer employees to assess 
their potential for advancement (A. 104a).

Bather, the sole reason given for freezing them in the 
labor category is their failure to meet the diploma/test 
requirement. This requirement has no sound basis in fact 
or experience. It was adopted without any study, evalua­
tion or analysis of either the abilities needed on the jobs



9

or the qualities measured by the requirement (A. 93a, 103a- 
104a, 19b, 57b-71b, 85a-86a, 115b-116b, 199a-200a). The 
Wonderlie test in particular has a heavy cultural orienta­
tion seemingly unrelated to most job functions at the plant 
(A. 101b).

Summary o f  Argument

This is the first Title VII race discrimination case to come 
before this Court on the merits. It follows five years of 
experience under this landmark remedial statute during 
which lower courts have generally sought to give it a broad 
and flexible interpretation. This case thus presents the 
Court with the first opportunity to affirm or reject the 
general course taken by the great majority of lower courts 
and will fundamentally affect the future direction of litiga­
tion under the Act.

I.
TITLE VII REQUIRES THAT TESTS AND DI­

PLOMA REQUIREMENTS BE RELATED TO JOB 
PERFORMANCE NEEDS WHERE SUCH REQUIRE­
MENTS UNEQUALLY EXCLUDE BLACKS FROM 
EMPLOYMENT OPPORTUNITIES. IN FAILING! TO 
INSIST UPON SUCH JOB RELATEDNESS, THE DE­
CISION OF THE COURT BELOW INVITES EVASION 
OF TITLE VII.

A. Tests and Diploma Requirements Have a Vast 
Discriminatory Potential.

Petitioners challenge here the use of the diploma/test 
requirement as prerequisites for jobs where such require­
ment unequally excludes blacks from employment oppor­
tunities and is not related to job performance. Petitioners 
contend that Title VII requires that the diploma/test 
requirement be related to job performance where such re-



10

quirement unequally excludes blacks from employment op­
portunities.

Title VII, potentially a remedial milestone in civil rights 
legislation, bars not only outright refusals to hire blacks; 
but it also makes unlawful subtle or superficially neutral 
forms of racial discrimination in employment. “Objective” 
criteria such as the diploma/test requirement is a potent 
tool for reducing black employment opportunities, to the 
extent of frequently excluding blacks. In one typical case, 
the EEOC has found that a battery of tests (including the 
Wonderlic and Bennett used by Duke Power) excluded a 
disproportionate number of Negroes. Similarly, the Com­
mission has found, confirmed by various studies, a great 
racial disparity in test scores and receipt of a high school 
diploma.

The gross differences between test scores achieved by 
blacks and whites are directly attributable to race because of 
the differences in education because of segregated schools 
and differences in cultural environments. This is largely 
true today and overwhelmingly true for petitioners who 
completed their education before Brown began its erosion 
of the pervasive practices of segregation and discrimina­
tion. Such discrimination on the basis of education and 
test taking ability was well recognized by this Court in 
Gaston County, North Carolina v. United States, 395 U.S. 
285 (1969).

The facts regarding the disparity between black/white 
educational opportunities make a salient point. If require­
ments such as passage of “intelligence” tests and a high 
school diploma could be imposed without regard to job 
relatedness almost every employer in the South could 
create a substantial and unjustifiable job preference in 
favor of whites. This possibility is particularly under-



11

scored by the increased use of tests since the passage of 
Title VII.

B. The Established Method of Guarding Against 
Discriminatory Test and Educational Require­
ments, While Protecting the Reasonable Needs 
of an Employer, Is to Insist That Such Require­
ments Be Related to Job Performance Needs.

The established method of guarding against discrimina­
tory test and educational requirements while protecting the 
reasonable needs of an employer is to insist that such re­
quirements be related to job performance needs. This 
means that the tests and educational requirements must 
fairly measure the knowledge of skills required by the par­
ticular job which the applicant seeks. Both the Equal Em­
ployment Opportunity Commission and the office of Fed­
eral Contract Compliance require that test and educational 
requirements be job related. Several United States District 
Courts have issued decisions in accord with the view of 
EEOC and OFCC, notably Arrington v. Massachusetts 
Bay Transportation Authority, 306 F. Supp. 1355 (D. Mass. 
1969).

In looking to job relatedness as the touchstone of the 
fair use of test and educational requirements, the courts, 
federal and state employment agencies are merely carry­
ing forward a Title VII principle established in a series of 
cases challenging other unlawful employment requirements, 
which though objective in form have the effect of system­
atically reducing Negro job opportunity. For example, 
courts have struck down nepotic and seniority rules which 
although adopted for nmTracTaf reasons had a racially dis­
criminatory effect and were not job related.

The rationale of the job relatedness doctrine is clear. 
If a test, education (or other objective requirement) is job



12

related, employees are hired or promoted on the basis 
of their ability to perform, which is fair. But where a test 
or educational requirement is not job related, hiring and 
promotion is done on the basis of educational and cultural 
background which given the facts about schooling, housing 
and other factors affected by race is only thinly veiled 
racial discrimination.

By failing to insist on a reasonable relationship be­
tween the diploma/test requirement and job performance 
needs, both the Court of Appeals and the District Court 
have rejected the established standard for preventing un­
fair use of test and educational requirements—job related­
ness—and have opened the door to evasion of Title VII. 
This Court should reverse and adopt the job relatedness 
standard.

II.
THE RECORD BELOW OFFERS NO BASIS FOR 

FINDING THAT THE DIPLOMA/TEST REQUIRE­
MENT MEETS A JOB RELATEDNESS STANDARD.

The method of determining whether a diploma/test re­
quirement is reasonably related to job performance needs 
will vary from case to case. Many factors will influence this 
determination, including the extent to which the require­
ment is prejudicing black workers. The diploma/test re­
quirement used in the instant case is clearly one which has t 
a serious prejudicial effect on black workers. The record j 
in this case is devoid of any meaningful showing by Duke j 
that this requirement is related to job performance needs, i 
If the court below had made any inquiry beyond merely 
looking for an affirmative showing of racial animus, the 
practice of the respondent would have been found to be 
unlawful.



13

A. The Diploma,/Test Requirement Clearly Has a 
Prejudicial Effect on Black Workers.

In addition to general statistics which firmly establishes 
the prejudicial effect of the Duke’s diploma/test, require­
ment the effect of this requirement can he seen in the 
specific impact on black workers at Duke, j The only persons 
burdened by this requirement are the four black petitioners 

Tere* involved; they are frozen 
partment where the top pay is $1,895 per hour.»All of the 

“white workers are in departments with promotional ex­
pectancies leading to substantially higher pay levels

B. It Cannot Be Assumed Without Supporting Evidence 
That the Continuation of This Prejudicial Require­
ment Is Related to Its Job Performance Needs.

It has been demonstrated in dozens of studies that there 
is commonly little or no relationship between test scores 
and job performance. Aptitude tests may predict academic 
performance rather well. But industrial testing involves a 
range of skills and abilities entirely divorced from a pristine 
test room setting. Because of the frequency with which tests 
show little or no relation to job performance, it cannot be 
assumed in any particular case that a test is making a use­
ful prediction without supporting evidence. In view of the 
low validity and reliability of tests and education require­
ments in assessing job performance abilities, no require­
ment that grossly prefers whites over Negroes can be as­
sumed to be based on job performance unless supported by 
proper study and evaluation. Absent such study and evalu­
ation, the use of these requirements constitutes an un­
justified exclusion of Negroes in violation of Title VII.



14

C. Duke Has Made No Study or Analysis or Introduced 
Any Evidence at All That the Diploma/Test Require­
ment Is Related to Its Job Performance Needs.

The record in this case shows that Duke’s diploma/test 
requirement is not based on business needs and was adopted 
without proper study and evaluation. This case does not 
involve persons unknown to Duke; it  involves only four 
persons, each of whom has worked i(m Duku-lox at.least- 
~seveiT~years7j~'The Company is equipped to evaluate not 
only the general reliability and performance of these men, 
but also their specific abilities to learn and perform in other 
jobs. Indeed, Duke concedes that these men might perform 
well if given a chance. A lack of the need for the diploma/ 
test requirement is clearly demonstrated by the readiness 
of Duke to permit present white employees in the better 
departments to stay and be promoted without meeting this 
requirement. In face of the undisputed evidence that the 
diploma/test requirement is not essential and data showing 
the serious racially prejudicial effect on black workers, 
Duke’s persistence in maintaining this requirement is but 
a feeble attempt at rationalization for the continuation of 
this practice.

1. The High School Diploma Requirement—Company of­
ficials testified that this requirement was adopted without 
study or evaluation and without any particular evidence 
that it would serve the employment needs of Duke. It was 
adopted on the basis of what can be charitably described 
as blind hope. If Duke is permitted to adopt a high school 
diploma requirement on the flimsy basis set out on this 
record any employer in the country would also be abso­
lutely free to adopt such a requirement or some other 
educational requirement which would have the same effect 
of grossly preferring whites over Negroes.



15

2. The Test Requirement—The situation regarding the 
tests is even less justifiable than that regarding the high 
school diploma requirement. This requirement was adopted 
to protect a group of white employees in Coal Handling 
from the burdens of the high school diploma requirement. 
As in the case of the high school diploma requirement it 
was adopted without study, evaluation or analysis. At­
tempts by Duke at relating test scores to job success have 
been unsuccessful. Its only justification is as a substitute 
for the high school requirement and if that falls the test 
requirement must fall.

III.
DUKE’S DISCRIMINATORY PRACTICES DERIVE 

NO PROTECTION PROM SECTION 703(h) OF TITLE 
VII.

Section 703(h) provides that an employer may rely upon 
a “professionally developed ability test” which is “not 
designed, intended or used to discriminate.” This provi­
sion applies only to tests.
whatsoever to the high school diploma requirement which 
clearly violates Title VII for the reasons set out above. 
While section 703(h) could have relevance to the test re­
quirement, it does not apply because Duke’s tests are, not
“professionally developed” within the meaning..of the
Vtatiiter.are'’'‘fihtended” to discriminate. and are being
"“used” to discriminate even if not so intended.



16

ARGUMENT

This is the first Title VII race discrimination case to 
come before this Court on the merits. It follows five years 
of experience under this landmark statute during which 
courts have been enlightened and perceptive in giving it a 
broad and flexible interpretation.4 This judicial approach 
is consistent with the remedial role which Title VII was 
designed to play in countering employment discrimination. 
It has given Title VII the potential for becoming an effec­
tive force for fair employment in contrast to the many 
state fair employment laws which languished under re­
strictive applications. This case thus presents the Court 
with the first opportunity to affirm or reject an important 
general course which the lower courts have taken. The 
decision in this case will therefore fundamentally deter­
mine the future direction of Federal fair employment law. 
Judge Sobeloff eloquently stated this point in his dissent 
below:

“This decision we make today is likely to be as 
persuasive in its effect as any we have been called 
upon to make in recent years.

# # #
This case presents the broad question of the use of 

allegedly objective employment criteria resulting in 
the denial to Negroes of jobs for which they are poten-

4 See, e.g., Local 189, Papermakers and Paperworkers v. United 
States, 416 F.2d 980 (5th Cir. 1969), cert, denied, 397 U.S. 919 
(1970) ; United States v. Sheet Metal Workers, 416 F.2d 123 (8th 
Cir. 1969) ; Miller v. International Paper Co., 408 F.2d 283 (5th 
Cir. 1969) ; Choate v. Ca,terpiller Tractor Co., 402 F.2d 357 (7th 
Cir. 1968) ; Robinson v. Lorillard Co., 62 Lab. Cas. 9423 (M.D.N.C. 
1970).



17

tially qualified. . . . On this issue hangs the vitality 
of the employment provisions (Title VII) of the. 1964 
Civil Rights Act: whether The Act shall remain a 
potent tool for equalisation of employment opportunity 
or shall he reduced to mellifluous but hollow rhetoric 
420 F.2d at 1237 (Emphasis added.)

The decisions of the Court of Appeals and the District 
Court interpret Title VII so as to offer virtually no protec­
tion against such arbitrary use of diploma/test require­
ments, even where, as in this case, the requirements are 
of such nature as to have a discriminatory impact on black 
workers. Petitioners contend that this interpretation of 
Title YII is unnecessarily narrow and that it led the courts 
below to sustain a practice which would have been found 
unlawful under a proper interpretation of Title VII.



18

I.

Title VII Requires That Tests and Diplom a Require­
ments Be Related to Job Perform ance Needs W here Such 
Requirements Unequally Exclude Blacks From Em ploy­
m ent Opportunities. In Failing to Insist Upon Such 
Job Relatedness, the D ecision o f the Court Below Invites 
Evasion o f Title VII.

A. Tests and Diploma Requirements Have a Vast 
Discriminatory Potential.

Title VII was a legislative milestone6 designed to be a 
powerful force in alleviating the oppressed employment 
situation of black workers.6 As such it was framed in broad 
terms, barring not only outright refusals to hire blacks, 
but also making it unlawful “otherwise to discriminate 
against any individual with respect to his compensation, 
terms, conditions or privileges of employment,” 7 or to 
“classify . . . employees in any way which would, tend to 
deprive "any' l^Sividnal of emplQyment.-npport.unitias or 

_ otherwise adversely affect his status,,.as, an employee,” 8 
because of race. With this sweeping language Congress 
made it clear that Title VII was to reach all deterrents 
to full black employment opportunity.

6 Ranjel v. City of Lansing, 293 F. Supp. 301, 309 (D. Mich. 
1969).

6 See, e.g., H.R. Rep. No. 570, 88th Cong., 1st Sess. 2-3 (1963) ; 
H.R. Rep. No. 914, 88th Cong., 1st Sess. 138-41 (1963) (concurring 
report of Congressman McCulloch and others) ; Hearings on Equal 
Employment Opportunity before the General Subeomm. on Labor 
of the House Comm, on Education & Labor, 88th Cong., 1st Sess. 
passim, (1963) ; Hearings on Equal Employment Opportunity be­
fore the Subeomm. on Employment & Manpower of the Senate 
Comm, on Labor & Public Welfare, 88th Cong., 1st Sess. passim 
(1963).

7 Section 703(a)(1), 42 U.S.C. §2000e-2(a) (1).
8 Section 703(a)(2), 42 U.S.C. §2000e-2(a) (2).



19

There is no doubt that “objective” criteria, such as tests 
and educational requirements, are potent tools for substan­
tially reducing black job opportunities, often to the extent 
of wholly excluding blacks. The National Advisory Com­
mission on Civil Disorders (the Kerner Commission) put 
it bluntly:

“Racial discrimination and unrealistic and unnecessarily 
high minimum, qualifications for employment or promo­
tion often have the same prejudicial effect.” 9

In one typical case, the Equal Employment Opportunity 
Commission found that use of a battery of tests, including 
the Wonderlic and Bennett tests used by Duke Power 
Company, resulted inJIg% of whites passing the tests but 
only 6% of blacks.10 11 The EEOC' has recently ruled:

| JTt is now well settled that the use of the Wonderlic, / 
^Bennett and certain other preemployment tests result in ‘ 
reject ion of a disproportionate number of Negro job ap­
plicants.” ii flooH"of otlier' studies confirm a great racial
disparity in test scores, especially in the South where the 
disparity in educational opportunity has been the greatest.12

9 Commission Report at 416 (Bantam Books ed. 1968).
10 Decision of EEOC, Dee. 2, 1966, reprinted at p. Br. Ap. 1, 

infra.
11 EEOC decision 70-552 (Feb. 19, 1970) in CCH Fair Emp. 

Prac. Guide j[6139.
12 See J. Kirkpatrick, et al., Testing and Fair Employment 5 

(1968) ; J. Coleman, Equality of Educational Opportunity 219-20 
(1966) ; authorities collected in Cooper & Sobol, Seniority and 
Testing under Fair Employment Laws, 82 Harv. L. Rev. 1598, 
163,9-41 nn. 11, 13, 14, 15, 16, 17.

The Wonderlic test is a mixture of questions on vocabulary, 
mathematics, and other subjects, with a heavy emphasis on vocab­
ulary and reading ability. A testee is expected to answer questions 
such a.s:

“No. 11. ADOPT ADEPT—Do these words have
1. Similar meanings,
2. Contradictory,



20

The same disparate effect also results in the South when 
a high school diploma requirement is imposed. As of the 
last census, only 12% of North Carolina Negro males had 
completed high school, as compared to 34% of North 
Carolina white males.13

These gross differences between blacks and whites are 
directly traceable to race. The petitioners, who were born 
black, received a different education in segregated schools 
and grew up in a different cultural environment than they 
would have had they been born white. They were forced 
to drop out of school earlier because of economic necessity 
produced by discrimination and because discrimination led 
them to conclude that they could not make use of further 
education. These facts are largely true even for the Negro 
child born today. They are overwhelmingly true for peti-

3. Mean neither same nor opposite?”

“No. 19. REFLECT REFLEX—Do these words have
1. Similar meanings,
2. Contradictory,
3. Mean neither same nor opposite?”

“No. 24. The hours of daylight and darkness in September are 
nearest equal to the hours of daylight in

1. June
2. March
3. May
4. November”

(See A. 101b-103b) The ability to answer such questions is ob­
viously related to formal schooling and cultural background. The 
vocabulary questions call for an appreciation of subtle differences 
in word meanings and parts of speech; the question of hours of 
daylight cannot be answered reliably without knowledge of the 
vernal equinox.

13 EEOC Guidelines on Employee Selection Procedures, 35 Fed. 
Reg. 12333, at §1607.1 (b) (August 1, 1970). U.S. Bureau of the 
Census, U.S. Census of Population: 1960, Vol. 1, P art 35, at Table 
47 p. 167.



21

tioners, most of whom finished their schooling before the 
1954 Brown decision began the erosion of pervasive prac­
tices of segregation and discrimination. The resulting in­
ferior education and a tendency to earlier dropping out 
of school are racial characteristics of petitioners just as 
clearly as is living in a ghetto. This point—that discrimina­
tion on the basis of education and test-taking ability is 
a form of racial discrimination—was recognized by this 
Court in Gaston County, North Carolina v. United States, 
395 U.S. 285 (1969). There the appellant had sought to 
institute a literacy test for voter registration. The United 
States opposed this test under the Voting Rights Act of 
1965, contending that use of the test had “the effect of 
denying or abridging the right to vote on account of race 
or color” because of the inferior educations blacks had 
received; and this Court sustained the Federal government 
contention.

These facts regarding black/white education disparities 
make a very salient point, which numerous courts and 
governmental equal employment agencies have recognized. 
If requirements such as a high school diploma or passage 
of an “intelligence” test could freely be imposed, every 
employer in North Carolina and throughout the South 
could create a racially discriminatory promotional pre­
ference of three to one, or better, in favor of whites. Such 
a practice could result in a closing of the decent employ­
ment market to all but a handful of blacks. This is not an 
idle fear; since the enactment of Title VII there has been 
an upsurge in use of tests, often as the sole basis for 
making employment or promotion decisions.14

14 U.S. Dep’t. of Labor, Validation of Employment Tests by Con­
tractors and Subcontractors Subject to the Provisions of Executive 
Order 11246, at §§1 (d), (e), 33 Fed. Reg. 14392 (1968); Wall St. 
J., Feb. 9, 1965, at 1, col. 6.



22

On the other hand, courts and equal employment agencies 
have also recognized that Title YII does not go so far as 
to guarantee a job to every black citizen. It is an unfor­
tunate fact of life in America that a heritage of discrimina­
tion has left many blacks with insufficient skills for many 
of the better jobs in the economy. The disparity in black- 
white test scores and education levels is to some extent a 
reflection of the same deprivation as this lack of skills.

B. The Established Method of Guarding Against Dis­
criminatory Test and Educational Requirements,
While Protecting the Reasonable Needs of an Em­
ployer, Is to Insist That Such Requirements Be Re­
lated to Job Performance Needs.

The universal response of those courts and agencies con­
cerned by this dilemma has been to insist on job-related- 
ness as the sine qua non of fair use of tests and educational
standards. This does not mean that.a test must. ha..a .sample.

ac,IIal -iol) 'dd’1'0'1 for or tIu>t etnployefs cannot con. 
..aider reasonable future promotional possibilities in estab- 

, lifihing.aiggt^A8 defined by the Equal Employment Oppor­
tunity Commission, the agency charged with enforcement 
of Title VII, it means merely that tests must:

^.M riY-.measure the knowledge or skills required by the 
particular job or class of jobs which the applicant 

' seeks or which fairly affords Iho employer a chance to 
measure the applicant’s ability to perform a particular 
job or class of jobs.-’, EEOC Guidelines on Employ­
ment Testing Procedures (1966), reprinted at A. 129b, 
130b.15

_15 For decisions applying these guidelines, see, e.g., EEOC De­
cision 70-552 (Feb. 19, 1970), in CCH Fair Employment Prae. 
Guide 116139: EEOC Decision Case No. NO6809-327E (June 18, 
1969), in CCH Fair Employment Prac. Guide 8516; EEOC Deci­
sion, Dec. 6, 1966, reprinted at p. Br. Ap. 3, infra; EEOC Decision 
Dec. 2, 1966, reprinted at p. Br. Ap. 1, infra.



23

The EEOC takes a similar position regarding educational 
requirements.16 Most recently the EEOC position has been 
elaborated in its new Guidelines on Employee Selection 
Procedures, 35 Fed. Beg. 12333 (August 1, 1970). These 
Guidelines which specifically cover intelligence and aptitude 
tests and educational requirements, id. at § 1607.2, demand 
that employers using tests have available

“data demonstrating that the test is predictive of or 
signiBcantly correlated with iii,;H>i -anl.''efements of _ 

"work "iseEaviOT1 comprising or relevant to the job or 
joloVTdr wFicBGuidelines are being evaluated.” Id. at 

~fliief:4tc)':'' ’.....

Virtually the identical requirement is imposed by the Office 
of Federal Contract Compliance (OFCC) enforcer of Ex­
ecutive Order 11246 against discrimination by government 
contractors. Validation of Tests by Contractors and Sub­
contractors subject to the Provisions of Executive Order 
33 Fed. Reg. 14392, §2(b) (1968). The same principles of 
job relatedness have also been adopted by the several state 
fair employment agencies which have spoken on the 
subject.17

In the courts, although no other Court of Appeals has 
dealt at length with issues of testing and educational re­
quirements, at least two District Courts in other circuits

16 See EEOC Decision, Dec. 6, 1966, reprinted at p. Br. Ap. 3, 
infra. Contrary to assertions made in respondent’s opposition to 
certiorari, a careful reading of this EEOC decision will show that 
it involved an educational requirement (8th grade) as well as tests.

17 California, Fair Employment Practices Equal Good Employ­
ment Practices, in CCH Employment Practices Guide 1}20,86i; 
Colorado Civil Rights Commission Policy Statement on the Use of 
Psychological Tests in CCH Employment Practices Guide ^21,060; 
Pennsylvania Human Relations Commission, Affirmative Action 
Guidelines for Employment Testing, in CCH Employment Prac­
tices Guide j[27,295.



24

have done so, and have resolved the issue in favor of a job- 
relatedness requirement. Most explicit is Arrington v. 
Massachusetts Bay Transportation Authority, 306 F. Supp. 
1355 (D. Mass. 1969):

“ [I]f there is no demonstrated correlation between 
scores on an aptitude test and ability to perform well 
on a particular job, the use of the test in determining 
who or when one gets hired makes little business sense. 
When its effect is to discriminate against disadvantaged 
minorities, in fact denying them equal opportunity for 
public employment, then it becomes unconstitutionally 
unreasonable and arbitrary.” 30 F. Supp. at 1358.

This was a decision based on the Fourteenth Amendment. 
But the same view was adopted under Title VII in United 
States v. E. K. Porter Co., 296 F. Supp. 40 (N.D. Ala. 
1968), appeal noticed, 5th Cir. No. 27703. There the court 
reasoned:

“the court agrees in principle with the proposition that 
aptitudes which are measured by a test should be rele­
vant to the aptitudes which are involved in the per­
formance of jobs.” 296 F. Supp. at 78 (dictum).

Other Courts of Appeals and District Courts have also in­
dicated adherence to a similar point of view. See United 
States v. Sheetmetal Workers Local 36, 416 F. 2d 123, 136 
(1969); Bobbins v. Local 212, IBEW, 292 F. Supp. 413, 
433-34, 439 (S.D. Ohio 1968); Penn v. Stumpf, 308 F. Supp. 
1283 (N.D. Calif. Feb. 3, 1970); cf. Porcelli v. Titus, 302 
F. Supp. 726, 60 Lab. Cas. 1J9302 (D. N.J. 1969); Colbert 
v. H.K. Corporation, C.A. No. 11599 (N.D. Ga, July 6, 
1970) appeal noticed August 3, 1970.18

18 In Parham v. Southwestern Bell Telephone Co., —— F. Supp. 
— , 60 Lab. Cas. j[9297 (W.D. Ark. 1969), appeal noticed, 8th



25

In looking to job relatedness as the touchstone of fair 
use of educational and test requirements, these courts are 
merely carrying forward a Title VII principle firmly estab­
lished in a series of cases challenging other objective em­
ployment requirements. The use of tests and educational 
requirements is but one example of a new breed of racial 
discrimination. While outright and open exclusion of 
Negroes is passe, the use of various forms of neutral, ob­
jective criteria which systematically reduce Negro job op­
portunity are producing much the same result. As this 
Court has long recognized in other contexts of racial dis­
crimination, those rules which are objective and neutral in 
form may well be racially discriminatory in substance and 
effect. Under this principle, the Court has, for example, 
struck down grandfather clauses for voter registration,19 
the use of tuition grant arrangements which foster segre­
gated schools,20 and the use of a gerrymander which under­
cuts Negro voting power.21 Under Title VII, as well as in 
these other contexts, it is essential that “sophisticated as 
well as sim ple minded modes of discrimination” 22 be out­
lawed.

The initial Title VII case challenging an objective cri­
terion that caused racial discrimination was directed at the 
practice of nepotism. In the context of a white dominated

Cir. No. 19969, a series of preemployment tests were sustained 
without specifically inquiring into job-relatedness. However, since 
the court found that the tests were “simple”, that “plaintiff himself 
did well on them”, and that the tests were not operating as a serious 
barrier to black employment, it was hardly necessary to look to job­
relatedness. Id. at 6746.

19 Guinn v. United States, 238 U.S. 347 (1915).
20 Louisiana Financial Assistance Comm’r v. Poindexter, 389 

U.S. 571 (1968), affirming 275 F. Supp. 833 (B.D. La. 1967).
21 Gomillion v. Ligktfoot, 364 U.S. 339 (1960).
22 Lane v. Wilson, 307 U.S. 268, 275 (1938).



26

work force, nepotism, even though primarily motivated by 
racially innocent familial purposes, has a highly discrim­
inatory effect. A nepotic practice was therefore struck 
down in Local 53, International Assoc, of Heat & Frost 
Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047 
(5th Cir. 1969). !As the Fifth Circuit later explained, the 
nepotic practice violated Title VII because “it served no 
purpose related to ability to perform the work in the as­
bestos trade,.? Local 189, United Paper-makers and Paper- 
workers v. United States, 416 F.2d 980, 989 (5th Cir. 1969), 
cert, denied, 397 TT.S. 919 (1970). In other words, the prac­
tice was not job related.

The court in the Papermakers Local 189 case went on to 
extend this job-relatedness principle to strike down certain 
seniority rules. These rules preferred white workers over 
their black contemporaries on the basis of seniority ac­
quired when the black workers had been openly excluded 
from desirable jobs. Even though these seniority rules were 
adopted innocently for nonracial reasons, the court con­
cluded that such rules could not be sustained where they 
had the effect of barring black workers from jobs they were 
capable of performing. Id. at 988. The same application 
of the job-relatedness principle to strike down discrimina­
tory seniority rules has been made by the Eighth Circuit 
and by District Courts in the Sixth and Fourth Circuits. 
United States v. Sheet Metal Workers, Local 36, 416 F.2d 
123 (8th Cir. 1969); Dobbins v. Local 212, IBEW, 292 
F. Supp. 413 (N.D. Ohio 1968); Quarles v. Philip Morris, 
Inc., 279 F. Supp. 505 (E.D. Va. 1968). See also United 
States v. Hays Int’l Corp., 415 F.2d 1038 ( 5th Cir. 1969).23

23 There is one District Court decision contra in the Fifth Cir­
cuit, United States v. H. K. Porter Co., 296 F. Supp. 40 (N.D. 
Ala. 1968) appeal noticed 5th Cir. No. 27703. However, this deci­
sion preceded the Court of Appeals decisions in Papermakers Local 
189 and Hayes In t’l. Corp., cited above, and is plainly overruled 
by them.



27

And in a very recent case, the principle was applied to strike 
down the discriminatory use of arrest records. Gregory v.
Litton Systems Inc., -----  F. Supp. ----- ; 63 Lab. Cas.
91 9485 (C.D. D. Calif. July 28, 1970).

As Judge Sobeloff’s dissenting opinion below explained, 
the teaching of these seniority and nepotism cases is that:

“the statute interdicts practices that are fair in form, but 
discriminatory in substance . . . The critical inquiry is 
business necessity and if it cannot be shown that an 
employment practice which excludes blacks stems from 
legitimate needs the practice must end.” 420 F.2d at 
1238.

Judge Sobeloff went on to observe that this principle ap­
plies to discriminatory tests and educational requirements 
as well as to seniority and nepotism. Where such require­
ments are not job-related they are not justified by business 
necessity and must be struck down.24 *

The rationale of those courts and agencies in insisting 
upon job-relatedness is clear. If a test, educational stan­
dard (or other objective requirement) is job-related, em­
ployees are hired or promoted on the basis of their ability 
to perform, which is fair. But where a test or educational 
requirement is not job-related, hiring and promotion is 
done on the basis of educational and cultural background, 
which given the facts about schooling, housing and other 
factors affected by race, is only thinly veiled racial dis­
crimination. This racial discrimination in some cases may 
be a product of naked racism. In other cases, it may simply 
be motivated by a commitment to what some may perceive 
as middle class values and certain personal life styles. But 
in either case, the result is the same—seriously reduced

24 See generally Cooper and Sobol, Seniority and Testing Under
Pair Employment Laws, 82 Harv. L. Rev. 1593, 1669-73 (1969).



28

black job opportunity and gross employment preference 
for whites over blacks26—and it is this discriminatory re­
sult which Title VII declares unlawful.26

The decision below stands out in bold relief against the 
virtually unanimous endorsement of the job-relatedness 
principle by other courts and agencies. This principle was 
openly rejected by the court below. Specifically, as to the 
test requirement, the Court of Appeals recognized:

“The [District Court! held that the tests . given by ̂
T  Duke were not job-related. . . . 420 F.2d at 1234. k

But the court went on to conclude:
“We agree with the district court that a test does not 
have to be job-related in order to be valid under [Title 
VII].” 420 F.2d at 1235.

26 Black unemployment, has run at roughly double the white rate 
for the past two decades and continues at that rate even today. 
See National Advisory Commission on Civil Disorders, Report 
253 (Bantam Ed. 1968) ; Bureau of Labor Statistics, Employment 
and Earnings, June 1970, Table A-3, Major Unemployment Indi­
cators.

26 The emphasis or result rather than motive is clear in sections 
703(a)(2) and 703(c)(2) of Title V II which define unlawful 
practices as those which “tend to deprive” or “adversely affect” 
because of race, without reference to the employer’s*'^reasdM'“TOr' 
the practices. The only reference to intent in the general provi­
sions of Title VII is in a remedial provision, section 706(g), which 
is designed only to assure that employers are not subjected to in­
junctions for accidental events. Any knowing and purposive act, 
such as the intentional adoption and continuation of test and edu­
cational requirement with full knowledge of its effects is covered 
by this provision. Papermakers Local 189 v. United States, 416 
F.2d 980, 995-97 (5th Cir. 1969), cert, denied, 397 U.S. 919 (1970). 
See Blumrosen, Seniority and Equal Employment Opportunity: 
A Glimmer of Hope, 23 Rutgers L. Rev. 268, 280-84; Cooper & 
Sobol, Seniority and Testing Under Fair Employment Laws, 82 
Harv. L. Rev. 1598, 1674-76 (1969). “Intent” is also referred in a 
special section dealing with tests, section 703(h), which is dis­
cussed at pp. 46-51, infra.



29

As to tlie diploma requirement, the court was less explicit, 
but it plainly did not ask, as do the EEOC and other courts 
and agencies, that the requirement be shown to “fairly 
measure knowledge or skills” needed on jobs at Dan River. 
Moreover, since Duke’s own testimony established that the 
tests and the diploma requirement measure the same thing 
(A. 181a), if the tests are not job-related presumably the 
diploma requirement also is not. Instead of evaluating job 
relatedness, the Court of Appeals seemed to be searching 
for some affirmative evidence of racial animus—some show­
ing of a motive to discriminate in adopting the challenged 
requirements. If this is to be the standard, then Title VII 
will be rendered largely ineffective in pursuing the goal 
of full fair employment. The record in this case indicates 
how easily any employer can justify even the most arbitrary 
and discriminatory use of tests under the standard applied 
by the Court of Appeals. See pp. 39-44, infra.

By its failure to insist on a reasonable relationship be­
tween the diploma/test requirement and job performance 
needs, both the Court of Appeals and the District Court 
have rejected the established standard for preventing un­
fair use of test and educational requirements and have 
opened the door to evasion of Title VII by innocence and 
design. This Court should recognize the expertise of the 
EEOC87 and reaffirm the soundness of the job-relatedness 
requirement.

27 See Udoll v. Tollman, 380 U.S. 1, 16 (1965) ; FTC  v. Colgate- 
Palmolive Co., 380 U.S. 374, 385 (1965); Fawcus Machine Co. v. 
United States, 282 U.S. 375, 378 (1931) ; United States v. American 
Trucking Assn., 310 U.S. 534, 549 (1940) ; United States v. Public 
Utilities Comm.. 345 U.S. 295, 314-315 (1953) ; FTC  v. Mandel 
Bros., 359 U.S. 385, 391 (1959). This point is further developed in 
the brief of the United States as amicus curiae.



30

II.

The Record Below Offers No Basis for Finding That 
the D ip lom a/T est Requirem ent Meets This Job-Related- 
ness Standard,

The method of determining whether a diploma/test re­
quirement is reasonably related to job performance needs 
will vary from case to case. In some cases the relationship 
will be patent. For example, in one recent decision the 
EEOC sustained use of tests of arithmetic and change- 
making ability for selecting “checkers”. In so doing, the 
Commission observed that the testTcoWred “specific skills 
(change making and computation) which are actually per­
formed by incumbents of the job classifications for which 
they are administered” .28 InJfagjaasft.i)f JR»2£,
aptitude tests, the EE()fT7requently calls for more thor- 
o agT stady^^nstify  test use.2* Obviously many factors 

—will influence this determinalion. including the extent to 
which the requirement is prejudicing black workers. A re­
quirement which does not result in a great preference for 
whites over blacks need be subjected to little, if any, exami­
nation under fair employment laws.30 However, the di­
ploma/test requirement used in this case is clearly one 
which has a serious prejudicial effect on blacks, and the

28 EEOC Decision No. 70-630, Case No. AT 68-3-824E (Mar. 17, 
1970), in CCH Fair Employment Pract. Guide ff6136.

89 See EEOC Guidelines on Employee Selection Procedures, 35 
Fed. Reg. 12333 (August 1, 1970). EEOC Decision No. 70-501, 
Case YAT9-633 (Jan. 29, 1970), in CCH Fair Employment Prac. 
Guide Tf6112 (covering several aptitude tests including Bennett 
test used by D uke); EEOC Decision No. 70-552 (Feb. 19, 1970), 
in CCH Fair Employment Prac. Guide ^6139 (covering Wonderlic 
and Bennett tests used by Duke).

30 See Parham v. Southwestern Bell Telephone Co.,----- F. Supp.
----- , 60 Lab. Cas. f9297 (W.D. Ark. 1969).



31

record is devoid of any meaningful showing that the re­
quirement is related to job performance needs. Therefore, 
if the court below had made any inquiry beyond merely 
looking for an affirmative showing of racial animus, the 
practices of Duke would have been found unlawful.

A. The Diploma/Test Requirement Clearly Has a 
Prejudicial Effect on Black Workers.

The prejudicial effect of this requirement is firmly estab­
lished by the abundant data cited earlier—̂that only Va as 
many blacks as whites in North Carolina have a high school 

•diploma,,..and. onb^a-iraction as m^y'^lach^ as whites will 
pass the Wonderlic and Bennett tests*. Sfee pp. 19-20, supra. 
But beyond these general statistics, the prejudicial effect 
can also be seen in the specific impact of the requirement 
at Duke. Since the requirement applies only to certain 
interdepartmental transfers, its real impact is only on those 
employees in departments who need to transfer for decent 
promotional opportunity. The only persons thus burdened 
are the four black workers involved in this petition. They 
are frozen in the Dab or Department with a top pay expecta­
tion of only. $1,895 /per hour (A. 72b).31 All of the white 
workers are in departments with promotional expectancies 
leading to substantial pay levels.

B. It Cannot Be Assumed Without Supporting Evidence 
That the Continuation of This Prejudicial Require­
ment Is Related to Duke’s Job Performance Needs.

The aspect of diploma and test requirements that is so 
appealing and yet so deceptive to employers is a super­
ficially plausible relationship to job performance. The pos­
sibility of getting a more “intelligent” employee through 
use of such devices is often assumed to be a means of get­

31 The foreman job in the Labor Department pays per
hour, but it is not open to non-high school graduates’ (A. 63b).



32

ting more productive and more valuable employees. But 
in the context of industrial jobs, such as those at Duke’s 
Dan River Plant, an immense body of evidence has shown 
this assumption to be unfounded.

This point has been proven time and again in careful 
studies by industrial psychologists investigating the 
“validity” of standard tests such as the Wonderlic and the 
Bennett in predicting an individual’s ability to perform 
industrial jobs. It has been demonstrated in dozens of 
studies there is commonly little or no relationship between 
test scores and job performance. An eminent industrial 
psychologist, Dr. Edwin Ghiselli of the University of Cali­
fornia, recently reviewed all the available data on the pre­
dictive power of standardized aptitude tests in an effort to 
develop better testing practices. Dr. Ghiselli is a strong 
supporter of tests. Yet he was forced to conclude that in 
trades and crafts aptitude tests “do not well predict suc­
cess on the actual jobs,” 32 and that in industrial occupa­
tions “the general picture is one of quite limited predictive 
power.” 33 In many situations there is actually a negative 
relationship between test scores and job success.34

What does this mean in practical terms'? An example, 
which is by no means unusual, is contained in a report of a 
study performed in a large Southern aluminum plant.35 
The study showed that scores on the Wonderlic test had 
no relation whatsoever to job performance ability. Black

32 B. Ghiselli, The Validity of Occupations Aptitude Tests 51 
(1966).

33 Id. at 57.
34 E.g., id., at 46.
35 Mitchell, Albright & McMurry, Biracial Validation of Selec­

tion Procedures in a Large Southern Plant, in Proceedings of 76th 
Annual Convention of the American Psychological Association, 
Sept., 1968, reprinted in Appendix hereto at pp. Br. Ap. 6-7, infra.



33

workers were scoring only half as well as whites on the 
test, but there was no difference between races in job per­
formance ability. If the test had been blindly used, Negroes 
would have been grossly screened out without business need 
and contrary to the interests of the employer. Other studies 
have shown, for example, that the Wonderlie and related 
tests are of no significant vaES3£-pS,3ifiiing performance 
brUrfinance facp:)ry workers or radio assembly workers,36 37 
workers " in the printing and publishing industry,3,7' Birth 
Workers in the manufacture of finished lumber products 
and transportation equipment.38 As to the Bennett and re­
lated tests, studies have shown, for example, that test 
scores are of no significant value in predicting job success 
in occupations such as textile weaving39 and jobs in the 
manufacture of electrical equipment.40

These results should not be surprising. Aptitude tests 
may be expected to predict future academic performance 
rather well because grades are measured by performance 
on more tests. But industrial job performance involves a 
range of skills and abilities entirely divorced from a pris­
tine test room setting. There is an understandably low 
correlation between test taking skills and job performance 
skills.

This is particularly true when the test is being given to 
a mixed racial group. One of the basic assumptions under­
lying tests is what might be called the “equal exposure”

36 Super and Crites, Appraising Vocational Fitness 106 (Rev. 
ed. 1962).

37 E. Ghiselli, The Validity of Occupations Aptitude Tests 137 
(1966).

38 Id. at 135, 148.
33 I d  at 132.
40 Id. at 147.



34

assumption. Because a test measures how well a person 
has learned various skills and information, test scores may 
sometimes make a reasonably useful prediction of perfor­
mance on the job. But when this equal exposure assumption 
is false—as it surely is in the case of comparisons between 
Southern Negroes and whites—the already shaky basis for 
test predictions is drastically undercut.41 For this reason, 
as petitioners’ expert witness Dr. Richard Barrett testified 
he found in his Ford Foundation study,} a test may predict 
differently for one racial group than ft does for another

Of course, tests are not always so poor at predicting. In 
some cases tests may be reasonably useful. The point is 
that predicting job performance on the basis of tests or on 
other measures of educational background is a highly pre­
carious endeavor dependent on a myriad of factors.42 Be-

41 This point was made very clearly by the court in Hobson v. 
Hansen, 269 F. Supp. 401, 484-485 (D.D.C. 1967) :

“A crucial assumption [in evaluating aptitude test scores] . . . 
is that the individual is fairly comparable with the norming 
group in terms of environmental background and psychological 
make-up; to the extent the individual is not comparable, the 
test score may reflect those differences rather than innate dif­
ferences. . . .

“ . . . For this reason, standard aptitude tests are most precise 
and accurate in their measurements of innate ability when 
given to white middle class students.

“When standard aptitude tests are given to low-income Negro 
children, or disadvantaged children, howover, the tests are 
less precise and less accurate—so much so that test scores 
become practically meaningless. Because of the impoverished 
circumstances that characterize the disadvantaged child, it is 
virtually impossible to tell whether the test score reflects lack 
of ability—or simply lack of opportunity. . . . ” (Emphasis 
added.)

42 See Ghiselli, The Generalization of Validity, 12 Personnel Psy­
chology 397-398, 400 (1959) :

“A confirmed pessimist at best, even I was surprised at the 
variation in findings concerning a particular test applied to 
workers on a particular job. We certainly never expect the



35

cause of the frequency with which test scores show little or 
no relation to job performance, it cannot be assumed in 
any particular case that a test is making a useful prediction 
without supporting evidence. As outlined in the testimony 
of Dr. Barrett, sound business practice as well as fair em­
ployment, calls for an employer to make a careful analysis 
of the tasks involved in his jobs and to determine what 
skills and abilities are needed to carry out those tasks. 
After such an analysis, the employer can select, on the basis 
of informed judgment and careful study, procedures which 
will rationally and fairly appraise those skills (A. 125a- 
129a).48 Both the EEOC and OFCC Guideline on Selection 
Procedures, as well as all standard texts on test use insist 
on such careful study as a prerequisite to using any par­
ticular test to deny promotions or jobs.* 43 44 Even the manual

repetition of an investigation to give the same results as the 
original. But we never anticipated them to be worlds apart. 
Yet this appears to be the situation with test validities. . . .”

“ . . .  We start off by making the best guesses we can as to which 
tests are most likely to predict success and are not at all sur­
prised when we are completely wrong.”

43 Even those in the business of selling tests, who might be ex­
pected to ease the way for their use, concede the need for such 
study. See Science Research Assoc., Inc., a subsidiary of IBM, 
Business and Industrial Education Catalog 1968-69, at 4:

“A sound testing program is based on four critical steps:
1. Careful job analysis.
2. An analysis and assessment of essential job character­

istics.
3. Selection of the test or tests.
4. Testing the tests.”

44 EEOC Guidelines on Employee Selection Procedures, 35 Fed. 
Reg. 12333 at §§1607.4, 1607.5, 1607.7; OFCC, Validation of Tests 
by Contractors and Subcontractors subject to the Provisions of 
Excutive Order 11246, 33 Fed. Reg. 14392, §§2, 3, 5, (1968).

“Some adequate measure of validity is absolutely necessary be­
fore the value of a test can really be known and before the 
scores on the test can be said to have any meaning as predictors



36

for the Wonderlic Test, upon which Duke relies, unequivo­
cally states:

of job success. . . . The use of unverified tests, whether through 
innocence or intent, cannot be condoned. . . . For example, if 
a test is known to measure some psychological ability, such as 
ability to work with mechanical relations, and certain me­
chanical performances are required in the performance of the 
job, the test still cannot be considered valid until the scores 
have been checked against some index of job success.” Ghiselli 
and Brown, Personnel and Industrial Phychology 187-88 
(1955) ;

“Tests must always be selected for the particular purpose for 
which they are to be used; even in similar situations, the same 
test may not be appropriate. . . . Tests which select super­
visors well in one plant prove valueless in another. No list 
of recommended tests can eliminate the necessity for carefully 
choosing tests to suit each situation. . . .  No matter how com­
plete the test author’s research, the person who is developing 
a selection or classification program must, in the end, confirm 
for himself the validity of the test in his particular situation. 
. . .  In most predictive uses of tests, the published validity 
coefficient is no more than a hint as to whether the test is 
relevant to the tester’s decision. He must validate the test in 
his own school or factory. . . . ” 1 Cronbacli, Essentials of 
Psychological Testing 86, 105, 119 (2d at 1960).

“It is of utmost importance that any tests that are used, for 
employment purposes or otherwise be validated. . . .  I t  is only 
when a test has been demonstrated to have an acceptable de­
gree of validity that it can be used safely with reasonable as­
surance that it will serve its intended purpose.”

« * # * *
“The point to be emphasized throughout this discussion is that 
no one—whether he is an employment manager, a psychologist, 
or anyone else—can predict with certainty which tests will be 
desirable tests for placement on any particular job.” Tiffin 
and McCormick, Industrial Psychology 119, 124 (5th ed.
1965) .
See also e.g., Ghiselli and Brown, supra, at 210; Rueh, Psy­
chology and Life 67, 456-57 (5th ed. 1958); Siegel, Industrial 
Psychology 122 (1962) ; Thorndike, Personnel Selection Tests 
and Measurement Techniques 5-6 (1949); Freeman, Theory 
and Practice of Psychological Testing 88 (3rd ed. 1962) ; 
Lawshe and Balma, Principles of Personnel Testing (2nd ed.
1966) .



37

“The examination is not valuable unless..itis.,, carefully 
used, and norms are established f or each, situation in 
which it is to be applied.” (Emphasis added.)45

Insofar as a high school diploma requirement is used to 
measure job performance abilities it is no better than a 
test and probably much worse. There is so much variation 
in the quality of high schools, the nature of the courses 
taken, the grades in the courses and many other factors 
that a high school diploma is a highly unreliable indicator. 
In a recent book examining the significance of educational 
requirements for jobs, Professor Ivar Berg sets out data 
from a series of studies covering workers in such industries 
as a Mississippi textile company, a Southern hosiery manu­
facturing plant, two urban utility companies and an auto 
assembly plant. Professor Berg also examined the per­
formance of Air Traffic Controllers in detail. The conclu­
sion of every one of these studies was that the formal edu­
cational attainments of the workers bore no significant 
relationship to job success.46

In light of the experience derived from years of study 
with tests, Professor Berg’s findings are to be expected. 
It should be obvious that if a consistent and reliable meas­
ure (such as a test) cannot well evaluate job performance 
potential, an inconsistent and unreliable measure of the 
same thing (such as a high school diploma requirement) 
cannot do so.47 Many companies honestly interested in fair

45 Wonderlic Personnel Test Manual 2 (1961).
46 Education and Jobs: The Great Training Robbery, 87-90, 

167-72, (1970), summarized in Berg, Rich Men’s Qualifications for 
Poor Man’s Jobs, Trans-Action, Mar. 1969, at 45, 49.

47 While it is impossible to determine on the record before us 
what the results might have been of a study at Dan River similar 
to those conducted by Professor Berg, the evidence suggests that 
the high school diploma would have been found irrelevant to any



38

employment have decided, after investigating the matter, 
that a high school diploma requirement is not worthwhile 
and should be dropped. This group includes the First 
National City Bank, Metropolitan Life Insurance Com­
pany, American Broadcasting Company and the Chemical 
Bank New York Trust Company.48

It is sometimes suggested that a high school diploma re­
quirement is useful as a measure of motivation and perse­
verance rather than as a measure of learning. This may 
he true in some situations involving the selection of new 
employees and may sometimes justify use of the require­
ment in such situations (assuming the discrimination in­
herent in this measure of perseverance is adequately dealt 
with). In this case, however, Duke has made it clear that 
the requirement is being used as a measure of learning, not 
motivation (R. 102a, 188a). This is necessarily so because 
it would be foolish to attempt to use a high school diploma 
requirement to assess the motivation and perseverance of 
employees whose work habits have been observed for sev­
eral years. This direct in-plant observation enables a far 
better assessment than any externally based standard.

In view of the low validity and reliability of test and 
education requirements in assessing job performance abili­
ties, no such requirement that grossly prefers whites over

iV4

job needs there. That has certainly proven to be the case for the 
white employees working at the company in 1955 when the re­
quirement was adopted. IThe present average. saLxx..:level .of these..
whites who happen to KavelTTiIgl^^ ($3141) is not,
simificantlv different from those who ^ h o t  have, a diploma-... 
t$3l'30FtATit05bi-I(J8b7'T2BBj: 'This indicates! {ESrtli&e non-high 
school employees have not been significantly impeded by their lack 
of education in moving into better jobs at Dan River.

48 Hearings before the United States Equal Employment Oppor­
tunity Commission on Discrimination in White Collar Employment, 
New York City, Jan. 15-18, 1968, at 46-48, 99, 377, 466.



39

Negroes can be assumed to be based on job performance 
need unless supported by proper study and evaluation. 
Absent such study and evaluation, the use of these require­
ments constitutes an unjustified exclusion of Negroes in 
violation of Title VII.

C. Duke Has Made No Study or Analysis or Introduced 
Any Evidence at All That the Diploma/Test Require­
ment Is Related to Its Job Performance Needs.

The arbitrariness of Duke’s continued use of the diploma/ 
test requirement is astounding in light of the care and 
study needed to assure fairness. It is important to remem­
ber that this case does not involve a great mass of persons 
unknown to Duke who~mTaiO o^oH ecn5v some rules of 
thmh1j"~jpTt involves only four persons, each of whom has 
worked steadily at the Dan River plant for at least seven 
years. For a portion of this time before July 2, 1965, they 
could only serve as laborers under Duke’s rigid policy 
of segregation.j During this period of their early manhood 
they were, in etfecCdif^^ Duke from furthering

'^TKeir education by the knowledge_ihat .it muld. not load to 
promotion. ^All four of these men have now served in the 
job of “semi-skilled laborer” for at least three and a half 
years (A. 109b, 77b).49 * * This job category at Duke involves 
far more than simple janitorial tasks. As semi-skilled 
laborers, the petitioners have been required to operate a 
wide variety of mechanical equipment and machinery, in­
cluding mowing machines, tractors, lift trucks, jack ham­
mers, air motors, grinders; and make minor repairs to this 
equipment (A. /65b)/ These duties are similar in most 
respects to the (Julies of men in the Coal Handling Depart­
ment (A./49m. In many cases, semi-skilled laborers have

49 Willie Griggs and C. E. Purcell, the two blacks most recently
promoted to the “semTsTHffed' laborer” position were moved on
Nov. 14, 1966 (A. 77b).



40

worked with the Coal Handling Department and gained 
experience and familiarity with the duties there (A. 106a, 
124b). Therefore the company is well equipped to evaluate 
not only the general reliability and performance of these 
men hut also their specific abilities to learn and perform 
in a context resembling the Coal Handling Department.60

The company concedes that many laborers might per­
form well in Coal Handling if given the chance (A. 124b). 
This conclusion is confirmed by the fact that eight of twelve,, 

_men in the CoalJELaJldUag,I),fina&to 
foremen and the three senior operators are performing . 

jyell despite having only a ninth grade education or less 
(A. 105b-108b, 126b). When ordered by the Court of Ap- 
peals to open up Coal Handling jobs and inside jobs to the 

3‘ g or 7 black non-high school graduates hired before 1955,
- Duke willingly acceded to the order without even attempt­

ing to cross-petition for certiorari; thus showing that non- 
high school laborers could feasibly he considered for better 
jobs.

Yet, despite this overwhelming evidence that a high school 
diploma is not needed to perform at least some better jobs 
at Dan River, particularly in the Coal Handling Depart­
ment, and despite the company’s extensive personnel data 
on the four black laborers hired after 1955, the company 
continues to insist that these four workers cannot be trans­
ferred to any better job without meeting the diploma/test 
requirement. The company claims that it has not even 
considered whether the qualifications and performance of 
the four laborers is sufficient to merit promotion (A. 104a).

60 Indeed, one of the defined duties of the Labor Department 
foreman is to “evaluate employees under his supervision for merit 
reviews and promotions”. Defendant’s Answer to Interrogatory 
No. 18, filed Feb. 28, 1967 (Not in printed record).



41

One would think that in the face of (1) undisputed evi­
dence that the diploma/test requirement is not essential, 
(2) data showing that the requirement has a seriously 
racially prejudicial effect, and (3) the knowledge that the 
burden of this requirement falls only on four long time 
employees whose status is in some sense a moral responsi­
bility of the company, the persistence of Duke would be 
based on some compelling reason. What the record indi­
cates, is not a compelling reason but rather a feeble attempt 
at rationalization.

1. The High School Diploma Requirement—The basis 
on which this requirement is claimed to have been adopted 
is set out in the testimony of A. C. Theis, Vice-President of 
Production and Operation for the Duke Power Company. 
Mr. Theis said that the company found that some of its 
employees had insufficient ability to be promoted to top 
level jobs. He then explained:

“This was why we embraced the High School education 
as a requirement. There is nothing magic about it, 
and it doesn’t work all the time, because you can have 
a man who graduated from High School, who is cer­
tainly incompetent to go on up, but we felt this was a 
reasonable requirement. . . (A. 93a).

“I am perfectly willing to admit to you that there are 
people without a High School education, who are in 
the Operating jobs, for instance, at Dan River, who 
have done a satisfactory job. I ’m not denying that at 
all. I  can’t deny that because we certainly have them 
there who have done this job, who have been there 
for over ten years. I don’t think there is anything 
magic about a High School education. . . .” (A. 103a- 
104a).



42

This explanation could he repeated by any company in the 
world. It shows nothing more than a whim, a blind hope 
without any study, evaluation or analysis. The company 
did not determine that lack of education was the disabling 
factor for its unsuccessful employees. The company made 
no formal job evaluation study, and prepared no summaries 
of duties required on jobs or analysis of the qualifications 
needed to do those jobs (A. 19b, 57b-71b, 109-110a).51

Petitioners are quite willing* to concede that there may 
conceivably be some jobs at Duke for which the diploma/test 
requirement is relevant, although that remains to be proven. 
But it is equally clear that there are many jobs in the 
better departments, particularly in Coal Handling, where 
the requirement is unlikely to be of any relevance to job 
performance. Duke’s decision to apply the requirement 61

61 The Court of Appeals was incorrect in asserting that Duke’s 
expert witness, Dr. Moffle, had “concluded .tfiat a high school edn.T. 

.cation would provide the trainings abifity and judgment to perform 
_ tasks in the higher skill classifications ” 420 F.2d 12153. This find­

ing, if accurate, wo hid feeftainly go to th e  question of job-related- 
ness. However, it is based on the misreading of Dr. Moffie’s testi­
mony. He said only that , “the assumption iff”, that the educational 
requirement is job related, not that he had verified or even sup-^ 
ported~the assumption'1 T iu lg la T r  This is understandable" since 

''" D lC  ffirffle ’dTT’not participate in establishing the high school re­
quirement in the mid-1950’s (A. 177a) and was never asked to 
ratify it. He was qualified as an expert only in “Industrial and 
Personnel Testing” (A. 164a) and was asked on direct examination 
to testify only to the appropriateness of the tests used by Duke 
(B. 162a-175a). As to the high school requirement, he clearly de­
ferred to the company:

“Q. [to Dr. Moffie] Would the High School education by 
itself tell you whether an employee has the ability or 
trainability for a job at a higher level?

A. [by Dr. Moffie] A High School education would merely 
tell you that you have the necessary abilities as defined 
by a High School education, and if the company feels 
that this is required in these jobs, that’s all it would 
tell you” (A. 188a).



43

across the board to all jobs in all formerly white-only 
departments, without any study or evaluation, is an ar­
bitrary action with a serious racially discriminatory 
impact.

Nor can these requirements stand as a reasonable 
attempt by Duke to upgrade its work force and obtain 
employees who will be able to move through progression 
lines to top level jobs, as the court below suggested. For 
one thing, we an; dealing .here with four existing employees 
who are already part of the work force and will remain so. 
I'T'cbmpany does not upgrade its force by underutilizing 

"'existing employees; it does so when it hires new employees.
""Second, Duke has not shown, the..requirements to be

relevant to even the highest level jobs in the plant and.;> 
"thereTo^^ have not been justified as job- ;
"related even to future promotional possibilities. Finally, 

"■''and most important,"the" employment and promotion situa-
tion at Dan. Rivers is fery stalk-dM hike's witnesses de­
scribed Dan River as mi teal stable employment situation” 
(A. 65a). No new employees were hired from 1965 to 1967 
(the period covered by interrogatories up to trial) (A. 74b); 
and there were no transfers of employees to other plants 
during this period (A. 77b, 83b). Only 19 promotions were 

^ Ajmade within the plant in this twm"yeSFp5Sod7-(A. 77b, 83b), 
' nm average rate of one promotion every ten years for each 

iFthe 95 men in the plant. This is hardly a situation where 
^employees must be frozen out of middle level jobs which 
% they can perform for fear that they will soon be knocking 

at the door of jobs which may be beyond their capabilities.62

If Duke were permitted to adopt a high school diploma 
requirement on the flimsy basis set out on this record, any 
employer in the country would also be absolutely free to

63 If such a situation did occur, Duke could, of course, be free to 
deny promotion to that upper level job.



44

adopt such a requirement or some other educational re­
quirement which would have the same effect of grossly 
preferring whites over Negroes.

2. The Test Requirement—The situation regarding the 
tests is even less justifiable than that regarding the high 
school diploma requirement. The claimed basis for this 
was also set out by Mr. Theisj On July 2, 1965, the effective  ̂

te of Title VII the company had introduced t ^ ^onderlic
nd Bennett tests as a,hurdle which afl'new^mployees 

were, required to* pass.^ For some tlm^ white employees 
in the Coal Handling Department who were not high school 
graduates had been seeking an alternative means of trans­
ferring to an “inside” job (A. 85a-86a). Mr. Theis ex­
plained :

“I seized on these tests as being a possible way that 
I could free up these men who were blocked off. . . 
(A. 86a).

“In fact, that’s what made me select these 2 tests—to 
offer them an opportunity to be qualified, because the 
white employees that happened to be in Coal Handling 
at the time, were requesting some way that they could 
get from Coal Handling into the Plant jobs. . . .”
(A. 199a-200a).

Here again there was no job evaluation or other study 
or analysis. No attempt to validate the tests was made. 
(A. 115b). The tests were simply “seized” as a convenient 
way of helping out a group of whites.

This is not because Duke is unfamiliar with the need for 
study and validation of tests. They have retained an in-

63 The legality of this requirement for new employees is not in 
issue in this case. However, the timing of the adoption of the test 
requirement and its well known discriminatory impact on Negroes 
raises a good deal of suspicion.



45

dustrial psychologist to do a validation study of tests 
throughout Duke’s system (A. 115b-116b). -However, he,. 
has been unable to validate the tests so far even though^ 
he has completed at least one study on 100 to 200 people 
(A. 179a). He is having the common experience of being 
unable to produce a correlation between test scores and job 
performance abilities.

Because it is so clearly the case, Duke apparently con­
cedes that its tests do not necessarily predict job perfor­
mance andythe court below found that they were not iob 
related, J[ Rather, "Duke seems to take the position that the 
test is used in place of the high school diploma and is valid 
as a substitute therefor (A. 180a-182a). Since the need 
for a high school diploma is based on no study or evidence, 
and is therefore unlawful, a test which measures the same 
thing and admittedly has not been related to job perfor­
mance can hardly stand.

Because neither the high school diploma requirement 
nor the test requirement is supported by any study, evalua­
tion or validation which shows that it is justified by Duke’s 
job performance needs, the gross discriminatory impact 
on Negro incumbents cannot be ignored. The use of either 
requirement tends to deprive Negroes of promotional op­
portunity in violation of Title VII.



46

III.

D uke’s D iscrim inatory Practices D erive No Protection  
From Section 7 0 3 (h )  o f Title VII.

The educational and test requirements at Dan River con­
stitute an unlawful racial discrimination as explained at 
length above. Since these requirements tend to prefer 
whites over blacks, by three to one, it is discrimination with 
a vengeance. Duke nonetheless attempts to obtain some 
protection for this discrimination under section 703(h), 42 
U.S.C. §2000e-2 (h). This defense has no merit.

Section 703(h) provides that an employer is free:
“to give and to act upon the results of any professionally 
developed ability test provided that such test, its ad­
ministration or action upon the results is not designed, 
intended or used to discriminate because of race . . .” 
(Emphasis added).

It should first be noted that this provision applies only to 
tests. It has no applicability whatsoever to the high school 
diploma requirement. As to Duke’s test requirement, this 
section could have some relevance; but Duke’s tests fail to 
meet the requirements of this provision and therefore de­
rive no protection from it.

First, Duke’s test use is not “professionally developed” 
as required by section 703(h) because professional stan­
dards require, as a prerequisite to test use, study and evalu­
ation which Duke did not undertake. See, pp. 31-39, supra-. 
Duke would apparently read the term “professionally de­
veloped” to mean that any test developed by professionals 
at its inception could be administered in any employment 
situation. This would permit, for example, use of a typing 
test to select ditchdiggers or the use of the College Boards



47

to select janitors. The EEOC, in its Guidelines on Employ­
ment Testing* Procedures, has ruled more reasonably tha t:

“The Commission accordingly interprets ‘professionally 
developed ability test’ to mean a test which fairly 
measures the knowledge or skills required by the par­
ticular job or class of jobs which the applicant seeks, 
or which fairly affords the employer a chance to 
measure the applicant’s ability to perform a particular- 
job or class of jobs. The fact that a test was prepared 
by an individual or organization claiming expertise in 
test preparation does not, without more, justify its use 
within the meaning of Title VII.” (A 130 b).

Duke’s test use fails to meet this standard.
Second, an “intent” to screen out blacks is at least a part 

of Duke’s intention in using its tests. This can be inferred 
from the timing of the decision to install tests, the lack of 
study that went into it, and Duke’s persistence in maintain­
ing the tests. To summarize the facts on this point, in 1965, 
shortly after Federal law first required Duke to drop its 
overt racial discrimination, tests were put in to modify the 
high school diploma requirement in response to pressure 
from whites in the Coal Handling Department who wanted 
to transfer and who could not meet it. See p. 17 supra. 
Instead of lowering the requirement or waiving it for long­
time employees, which would have permitted many blacks 
to qualify for transfer, the company seized on the alterna­
tive of a test that continues to relate to educational and 
cultural background. The company knew that the burden 
of this requirement fell primarily on blacks in the Labor 
Department. In March of 1966, these blacks expressly com­
plained to company officials about the unfair impact of the 
test (A. 120b). The company was surely aware of the 
notoriously poorer performance of blacks on these tests.



48

Yet the company made no attempt to equate the situation 
of blacks in the Labor Department with that of whites in 
the better departments who were being exempted from the 
high school and test requirements. It did not make any 
study or investigation to determine whether the tests were 
job-related, i.e., whether they fulfilled genuine business 
needs. The company has conceded that it really has no 
definite information about the efficacy or validity of the 
tests (A. 179a). The only thing that Duke could have known 
for certain about its tests was that they had a highly ad­
verse impact on black workers. Taking account of Duke’s 
long history of segregation and discrimination, the conclu­
sion is inescapable that the discriminatory impact of the 
tests was in the minds of Duke’s managers and formed at 
least part of Duke’s intent in 1965.

Third, whatever Duke’s intent, there is no question that 
the tests are in fact “used” to discriminate against black 
workers. Such is the clear result of using tests which apply 
primarily to blacks in the plant while effectively exempting 
whites, and it is the clear result of using tests to measure 
educational attainment when such is not relevant to job per­
formance needs.

To the extent that any of these three points is correct, 
Duke’s test use is outside the protective scope of section 
703(h). It should not be at all surprising that section 
703(h) does not protect a test use such as that at Dan 
River. If section 703(h) were read as Duke proposes it 
would give virtually carte blanche to any employer to use 
tests to effectively create gross preferences in favor of 
whites. The legislative history demonstrates that it was 
not intended to have any such significance.

The test clause in section 703(h) was introduced by 
Senator John Tower as an express response to a decision



49

of a hearing examiner under the Illinois Fair Employment 
Practices Act in a case involving the Motorola Corporation. 
110 Cong. Rec. 9024-42 (1964). This decision, handed down 
while Title VII was on its way through Congress, indicated 
that the use of any test having an adverse impact on blacks 
might be unlawful per se, without regard to the question 
of job performance needs. Decision and Order of FEPC 
Hearing Examiner, reprinted in 110 Cong. Rec. 9030-9033 
(1964).54 * This is obviously not the theory being advanced 
by petitioners before this Court insofar as it ignored the 
question of job performance. As Senator Tower correctly 
pointed out, this ruling established a “double standard” 
and might require the hiring of Negroes who were un­
qualified for a job.

Senator Tower therefore introduced an extensive amend­
ment to Title VII which he explained as “not an effort to 
weaken the bill” but rather to protect the right of an 
employer to assess an applicant’s “job qualifications.” 110  
Cong. Rec. 13492 (1964). Senator Tower made it clear that 
his amendment “would not legalize discriminatory tests.” 
Id. at 13504. He said he sought to protect only tests 
“designed to determine or predict whether [an] individual 
is suitable or trainable with respect to his employment 
in the particular business or enterprize involved,” Id. at 
13492, thus indicating adherence to a job-relatedness 
standard. The sponsors of Title VII were of the view that 
the bill as it stood already protected employers against 
a decision such as Motorola because of differences between 
Title VII and the Illinois law. Moreover, they objected 
to Senator Tower’s amendment because it was loosely 
worded and could read to give an employer an absolute 
right to use a professionally designed test even if it oper­

54 See 110 Cong. Rec. 9024 (1964), quoting editorial in Chicago
Tribune, March 7, 1964, critical of the Motorola decision.



50

ated discriminaterily. Remarks of Senators Case and 
Humphrey, Id. at 13503-04. For these reasons, Senator 
Tower’s extensive amendment was rejected by the Senate. 
Id. at 13505. Subsequently, Senator Tower introduced a 
much abbreviated and watered-down version of his amend­
ment which had been cleared with proponents of the bill. 
110 Cong. Rec. 13724 (1964). Senator Humphrey, a sponsor 
of the bill, said:

“Senators on both sides of the aisle who were deeply 
interested in Title VII have examined the text of this 
amendment and have found it to be in accord with the 
intent and purpose of that title.” Id. at 13724. (Em­
phasis added).

The amendment passed on voice vote without debate and 
is now included in section 703(h).

This history demonstrates that the test clause, like so 
many other special provisions in section 703,56 was designed 
to have no more than clarifying effect. Moreover, since 
the original, and presumably more permissive, version of 
Senator Tower’s amendment intended to include a job­
relatedness requirement for tests, it is reasonable to im­
ply such a requirement in the less permissive version that 
was enacted.56

56 Gf. Section 703(f) and (g) and other parts of 703(h) of 
Title VII.

66 Senator Humphrey reached this conclusion in a letter to the 
American Psychological Association, stating flatly that section 
703(h) did not permit tests that were “irrelevant to the actural 
job requirements.” Letter to American Psychological Ass’n (no 
date given), quoted in The Ind. Psychologist (Div. 14, Am. Psycho­
logical Ass’n. Newsletter), Aug. 1965, at 6.



51

CONCLUSION

The essence of the issue in this case is whether employers 
may be licensed to give employment preferences of three, 
or more, to one to white workers over black. The Court 
of Appeals decision, which authorized diploma and test 
requirements absent an affirmative showing of racial 
animus, in effect granted that license. The petitioners 
submit that this interpretation of Title VII renders the law 
powerless to combat the growth of irrelevant requirements 
having a serious racially prejudicial impact. It is incon­
sistent with the entire thrust and purpose of this landmark 
legislation. The decision below should be reversed and 
remanded, with directions to apply a job relatedness 
standard consistent with the rulings and interpretations



52

of the Equal Employment Opportunity Commission and to 
award petitioners a reasonable attorneys’ fee.

Respectfully submitted,

C onrad 0 .  P earson
203y2 E. Chapel Hill Street 
Durham, North Carolina 17701

J ulitjs L eV o n n e  C hambers 
R obert B elton

216 West 10th Street 
Charlotte, North Carolina 28202

S a m m ie  Ch e ss , J r .
622 E. Washington Dr.
High Point, North Carolina 27262

J ack G reenberg 
J ames M. N abrit, III 
N orman C. A maker 
W illia m  L . R obinson  
L owell J o h nston  
V ilm a  M. S ing er

10 Columbus Circle
New York, New York 10019

George Cooper 
C h r isto ph er  Clancy

401 West 117th Street 
New York, N. Y. 10027

Attorneys for Petitioners

A lbert  J .  R osenthal
435 West 116th Street 
New York, N. Y. 10027

Of Counsel



BRIEF APPENDIX



Br. Ap. 1

Decision of EEOC, December 2, 1966, reprinted 
CCH, Employment Practice Guide, $17,304.53  

Number jg—49 Decisions and Rulings 7 4 1 3 - 2 7
3-9-67

r *  in  17,304.53] D iscr im ina to ry  tes t ing  procedures.

Decis ion of Equal  E m p lo y m en t  O p p o r tu n i ty  Commission,  D ecem ber  2, 1966.
Reasonab le  cause existed to  sup p o r t  conclusion that employer 's  tes t ing  procedures  

d iscr im ina ted  on the  basis  of  race where  the  cri te ria  used were  no t  rela ted to  the  successful 
pe rfo rm ance  of jobs for which the te st s  w ere  given and only one of 17 N egroes  tak ing  the 
tests for a dvancem en t  from “d ead -end” jobs  to  “ line of p rog ress ion” jobs  passed.  In  p lants  
w ith  a  h is to ry  of discr imination,  tes t ing  p rocedures  will be carefully scrutinized ,  and the  
b u rden  is on  the  em ployer  to  show  tha t  te st s  a re  not  used to  exclude Negroes  from job  
opportuni ties .

B ack  references .— ft 1209, 16,904.
O n  A u g u s t  24, 1966, the  Commission  

a dop ted  Guidelines on Em ploym ent Testing  
Procedures [If 16,904]. In  light of the  Guide­
lines, the Commission concludes that reasonable 
cause exis ts  to believe tha t  R esp o n d en t’s 
te s t ing  p rocedures  are  in vio la tion of Ti tle  
V I I  of  the  Act.

T h e  fo llowing facts  a re  undisputed .  R e ­
sponden t  em ploys  app rox im ate ly  2,465 p e r ­
sons in its P ap e r  Mill and  C onver te r  P lants .  
. . . W h i le  N egroes  const i tu te  app ro x i ­
m a te ly  40r/c of ( the  local] popula t ion ,  they  
const i tu te  6%  of R esp o n d en t’s w o rk  force. 
C o m m en c in g  in 1958 R esp o n d en t  has a d ­
minis te red  va rious te st s  to  applicants  for 
em ploym ent .  F r o m  the beg inn ing  of 1957 
th ro u g h  Apri l 1964 R esponden t  hired 386 
whites  and  12 N egroes ;  of the  C onver te r  
p lant employees  hired  since then,  betw een 
April  1964 and  N o v em b er  1965, 75 arc  
white  and 4 are  Negro .

M o s t  of the  jo bs  a t R es p o n d en t’s plant  
a re  in lines of progression ,  w hich  means 
th a t  an employee  moves  up from a lower 
pay ing  job  on  the  bo t tom  to  a  h ighe r  p a y ­
ing  job on  the  top in accordance with  
sen iority ,  if able to  pe rfo rm  the w ork .  M ost  
of the  rem a in ing  jobs, which involve less 
skil led and  more menial work ,  are  lower 
pay ing  “ dead  en d ” jobs  with no prospect 
of advancem ent .  O f  the  white  employees in 
the  C onver te r  opera tion,  797 (X2r/<) are  in 
line of p rogress ion  jobs  while 177 (189c) 
are  in dead  end jobs. O f  the  N e g ro  e m ­
ployees in the  C on v er te r  ope ra tion,  8 (89c) 
are  in line of p rogress ion  jobs  while 89 
( 9 2 # )  a rc  in dead end jobs. In  1964 R e ­
s ponden t  com m enced  adm in is te r ing  tests to  
employees  desi r ing to move  from dead end 
jobs  to  line of p rogress ion  jobs o r  from one 
line of p rogress ion  to  another .  Em ployees  
win) were  in line of  p rogression  jobs were  
not  requ ired  to take  the  te st s  to  keep their  
jobs  o r  to  be p ro m o ted  within  lines of 
p rogress ion  Since 1964, 94 white  employees 
and  17 N e g ro  em ployees  have  taken the 
t ran s fe r  test s.  O f  these , 58 whites  0 8 9 0  
and one  N e g ro  ( 6 9 0  passed.  T h e  one 
N e g ro  w h o  passed  was outb id  for the  job 
he was seeking  by  a h igher  senio r ity  white.

Employment Practices

l

I t  is significant that until  1963, shortly  
before the  transfe r  te st s  were  inst ituted, R e ­
s ponden t  main ta ined  segrega ted  jobs  and 
lines of progression ,  so  tha t  Negroes  were  
categorically  excluded on  the basis of their  
race from the more sk i l led .and  be t te r  p a y ­
ing  jo bs  which w e re  reserved for “ whites 
only .” While  the  bars  are  no longer  e x ­
press ly  in t e rm s .o f  race, it is pla in that  R e ­
s p o n d en t’s te st ing  p rocedures  have had  the 
effect of  continuing  the  restr ic tion on the 
entrance  of N eg ro  employees  in to “white” 
line of p rogress ion  jobs.

W e  s ta ted  in o u r  Guidelines: “ I f  the facts 
indicate  tha t  an employer  lias discr iminated 
in the past  on the basis of race . . . the 
use of te st s  in such  circumstances  will be 
scrutinized carefully  by  the  Commission.” 
Accordingly ,  where ,  as here,  the  em ployer  
has a h is to ry  of excluding Negroes  from 
em ploym en t  and from  the b e t te r  jobs  b e ­
cause of their  race, and  where ,  as here, the  
em ployer  now  utilizes em ploym ent  tests 
which  function to  exclude Negroes  from 
em ploym en t  opportuni ties ,  it is incumbent 
upon the  em ployer  to  show  affirmatively 
tha t  the  te st s  themselves  and the  m e thod  
of the ir  appl ication arc  non-discr imina tory  
w ith in  the m ean ing  of T i tle  V II .

Ti tle  V II  permi.s employers to use ability 
te st s  which are  “ professionally developed” 
and which are  not “ designed,  intended o r  
u sed” to  discr iminate . As we have s ta ted  
in o u r  Guidelines, to  he considered as “p ro ­
fessionally developed,” not only  m us t  the 
te st s  in quest ion be devised by  a person 
o r  firm in the business o r  profession  of de ­
veloping em ploym en t  tests, but in addition,  
the  tests must be developed and applied in 
accordance with the accepted s tandards  of 
the  te st ing  profession. Relevant here  are  
the  requ irem ents  that the  te st s  used be 
s t ruc tu red  in te rm s  of the  skills required 
on  th e  specific ;obs  in quest ion  and tha t  
the  test s  be validated for those specific 
jobs. In o the r  .vords, before  basing p e r ­
sonnel  act ions  o:i test  results , it must have 
been de term iner  tha t  those who pass  the  
te st s  have  a grea te r  chance for success on 
the  part icu lar  jc bs in question than  those

fl 17,304,53



Br. Ap. 2

7 4 1 3 - 7 0
w h o  fid .  M t rove r ,  where  the  w ork  forre ,  ! 
c-r n, ts ti.ii w ork  force, is mult iracia l,  the 
U:.-.ts shou ld  he va lidated  accord ingly .

In  t i e  if <t-mt c-i'-r, all ;»r- -mtLtive Co:*.- \
• i - r i a r t  ' t-es are  required  to  pa^ : i

the  < :ti** Mi ip lovm ent  T es t  iA o r  IIS. A.j>- , 
p licauts  fur jobs  “ requir ing mechanical j 
ab i l i ty” a re  yS:»-< requ ired  to  pass  the  R en­
net! 'Test  of Mechanical Com prehension  
F o r m  A A and  F T  I N um erica l  T e s t  A or IF 
F o r  t ransfer ,  em ployees  are  requ ired  to  pnsc 
o r  have p a rs ed  one  o r  m ore  of th e  above 
te s ts  plus the  VVonderlic Pe rsonne l  T es ts  
F o r m  A. T h e  O t i s  and  W o n d e r  lie te r ts  
m easu re  “ general  inte lligence,” w ith  p a r ­
t icu la r  load ing  on verbal facility; the  P T I  
t e s t  m easu re s  skill in a r i thm etic ;  th e  Ren- 
n e t t  test m easu re s  know ledge  of p h v v c a l  
pr inciples.  'I here  is no th ing  in the  vo lum i­
nous rn lterials subm it ted  by  R esponden t  to 
indicate  tha t  the  t ra it s  m easu red  by  these  
te s ts  a re  t ra i ts  which  a rc  necessary  for the  
successfu l pe r fo rm an ce  of tire <poof;c jobs 
ava i lable  at R es p o n d e n t ’s plant.  Nor does

Kumber 3t?—5Q 
Z^t  -67

it appea r  th a t  any  of the  te st s  have  been 
va lidated  p roper ly  in te rm s  of the  specific 
jobs  avai lable a t R esponden t 's  plant,  o r  in 

of tb r  racial co*!*!- ‘-ition of R espond-  
c - P-  v ■ .  ,'••• -r.1 in  l.-e abse ruv  of ev i­
d e n c e  die P*sts n-c p roper ly  re la ted  to 
the  jobs  ami have been p roper ly  valida ted, 
Responden t  has no  ra tional basis  to r  be ­
lieving that employees and applicants who pass 
the tests will make more successful employees 
than those who f a i l ; conversely, Respondent 
has no rat ional basis for bd iev in r  that e m ­
ployees and appl icants  w ho  fail the  tests 
would  no t  m ak e  successful employees . R e ­
sponden t  s tes t ing  procedures,  therefore ,  are  
not “proiessionally developed.*’ Accord;mrly, 
since R es p o n d en t’s test ing p rocedures  5?rvc 
to  pe rpe tua te  the  same pa t te rn  of racial dis- 
c r im ination  w h : 'h  responden t  mainta ined  
overtly  fur m an y  years  before  it b egan  te s t ­
ing, we conclude tha t  there  is reasonable  
c;tibv to  believe that R esponden t ,  thereby,  
ha> vio lated and continues  to  violate Ti tle  
V I I  of the  Civil R ights  Act  of 1964.

I f  17,304.54] F a i lu re  to  advance  N e g r o  em ployees  to  h ig h e r  ra ted  jobs  on  basis  of 
seniority .

Deed'd. >n of Equal  Eni jdoyrm  :*t O p p o r tu n i ty  Commission ,  Case Nos. 5-11-2650, 
6-3-27(0— 0-3-2723, N ovem ber  1^, VK/o.

Reasonable  cau**e exis ts  to  h ehcv r  tha t  a steel corpoi.ih>in has vio lated T i t le  V I I  by  
m ain ta in ing  an exclusively N e g ro  job  classification with n the muin tenancc-o t -way  d e p a r t ­
m ent ,  by  t ran s fe r r in g  whites  from  o th e r  d e p ar tm en ts  to  hi) hiirher -ramd jobs  within  the 
d e p ar tm en t ,  ami bv  refusing to  p rovide  a  tra in ing  p ro g ram  winch would enable Negroes  
to  advance  to  h igh e r - r a ted  jobs  within the  depar tm ent .

Hack refe rence.—f  1217.
Reasonab le  cause floes not exist  t o  believe tha t  a union  vio lated T i t le  V I I  by  refusing 

to  p rocess  the  grievance  of a N e e r o  mem ber,  invest igat ion  revealed  tha t  the  grievance 
wa.. processed  o ta llv ,  tha t  it was denied, tha t  the  tin on m em b er  was notif ied of the  
deni:.!, and  tha t  he failed to  appeal with in ten d a \>  a> rei Hired by  the  collective barga in ing  
agreem ent .

Hack reference.— f[ 1217.

Summary <•/ Cl: w>V/c.r
T h e  C harg in g  P a r t i e s  allege d iscr im ina ­

tion  on  the  basis  of race (N e g r o )  as 
fo llows;

(a ;  C h a re in c  Part ies  w ork  in the  Had 
T r an s p o r ta t io n  Diei-bon, M aintenance  of 
W'av n e p a r tm e n t ,  of the  I'nitecl S ta tes  
Steel Corpora t ion .  T h e re  is l u t h  or  no  
op p o r tu n i ty  for advancem ent  for Negroes  
in tli *ir curren t  senio r ity  unit. In addi tion,  
several white m en with less senior i ty  were  
b ro u g h t  in to  t h e  D ep ar tm en t  to  nil higher 
ra ted  jobs . R esponden t  hires m en t rom

1 Ai v,*rrfmg to /..r y.iitumu:*t‘ntil and
Psych -‘.Iciitrut Texts nrui Manuals published by 
the American Psychological Association < 1 **'*">>. 
tests httould be revaiiuattsi at least every 15

f IV,304.54

othe t  d e p a r tm en ts  ra the r  than  le t t ing  tlie 
N egroes  exercise tiieir  senio r ity  righ ts  w i th ­
in tlie D epar tm ent .

{!;) O t  the  charge,  C harg ing  P a r ty  Speed 
includes L c.i! Union  1733 of United S tee l­
works r.*- < J America  as Responden t  with  re ­
j e c t  ti tin-- above matte r ,  in th.it the  Union  
faded to  pm cess  the grievance.

Sum vuiry  o f  InrcsU yati-n

fa )  T h e  invest igation substan t ia tes  the  
J alh-gations of the  ('barging- Pa r t i es  tha t

> The Otis t>-sts were cie-. ised in 1922. the
Kennftt !n 1-), the VVonderltc In 1942 and the 
PTI ;n 1950.

©  196i, C om m erce  Clear ing  H ouse ,  Inc .

i



Br. Ap, 3

Decision of EEOC, December 6, 1966, reprinted 
CCH, Employment Practice Guide, 17,304.55 

Humber 19—sx Decisions BEui Hulusgs 7 4 1 3 - 2 9
3-24-67

the  R esponden t is d iscrim in a tin g  against the 
C h arg in g  P a rtie s  by co n tinu ing  to  m ain ta in  
a  jo b  classification  w hich is exclusively  
N egro .

T h e  M ain tenance  o f W a y  D ep artm en t 
(h e re in a fte r re fe rred  to  as M O W ) is a 
p o rtio n  of ihe b a rg a in in g  un it rep resen ted  
by  Local 1733 of the  U n ited  S tee lw orke rs  
o f A m erica . T h is  sam e local rep resen ts  
m ost of the  em ployees in the  M echanical 
S hops D ep artm en t. M O W  is a  sen io rity  
un it w ith  ap p ro x im ate ly  130 job  o p p o rtu n i­
ties. O n ly  18 of these  job  o p p ortun ities  are 
above JC -4  and in a L ine of P rom otion .

T h e  C h arg in g  P a rtie s  a rc  classified as 
T rack  Laborers. H istorically  and currently, 
th is  is an  a ll-N eg ro  classification . T h is  
c lassification  con ta in s 112 of th e  130 job  
o p p o rtu n ities  in M O W . S ince 1950, th e re  
has been  but one add ition  to the  T rack  
L a b o re r  S en io rity  R oste r, and th is w as a 
N egro , a M r. W illiam  M athew s, w ho  was 
add ed  in S ep tem ber o f 1965.

P r io r  to  A pril of 1966, pe rsonnel actions 
w ith in  M O W  w ere v irtu a lly  s ta tic :

(1 ) In  1959-1960 th ree  (3) m en (w h ite ) 
w ere  b ro u g h t in to  the  D ep artm en t to  w ork 
a t unskilled jo b s  th a t sen io r N egroes could 
have qualified for-

(2 ) In  A pril o f 1966, an ex p ert w elder 
(w h ite )  w as b ro u g h t in to  the D ep artm en t 
from  th e  R eg ional P oo l to  w ork  as a T rack  
W eld er.

(3 ) In  M ay of 1966, a n o th e r T in  M ill 
em ployee  (w h ite ) w as d raw n  from  the 
R eg ional P ool, th is  tim e for th e  job  of 
S ignal R epairm an .

T h e  T rac k  L ab o re r jo b  c lassification p ro ­
v ides no  tra in ing  o pportun ities . F o u rteen  
of th e  18 job  o p p o rtu n ities  above the  T rack  
L a b o re r job  have special tra in in g  re q u ire ­
m en ts. A t best, you have app rox im ate ly  
100 m en  vy ing  fo r fou r jo b  opportun ities . 
T h e  C harg ing  P a rtie s  can not asp ire  to  
an y th in g  o th e r  th a n  a JC -4  T rac k  L ab o re r 
position . T h e  low  ra tio  o f h igher g rad ed  
jo b s  to  the  JC -4  job , and  the  low  level of 
pe rsonnel tu rn o v e rs  in M O W  con tribu te  to  
the  persistence  o f th e  C harg ing  P a rtie s ' 
p red icam ent.

(b ) T h e  investigation  does not su b s ta n ­
tia te  the  a llegations th a t w ere  filed again st 
Union Local 1733 by C harging P a rty  Eugene 
Speed.

M r. Speed alleged failure of the union  to 
p rocess a grievance he filed. A fte r investi­
gation , it w as de te rm ined  tha t M r. Speed 's 
grievance w as processed  verba lly  (g r iev ­
ances are n o t reduced  to  w ritin g  until the  
th ird  s tep ) , th a t it w as denied  and d ropped  
at a  low er step , and  th a t M r. Speed w as 
notified  of th is fact and  failed to  appeal the 
action w ithin 10 days  as s tipu la ted  by co n ­
trac t. H is g rievance, therefore , w as not 
processed  fu rther.

Decision

(a )  R easonab le  cause exists to  believe 
th a t the  R esponden t com pany  is v io la ting  
T itle  V I I  of the  Civil R igh ts  A ct of 1964 
as alleged.

(b )  R easonab le  cause does no t ex ist to  
believe th a t Local 1733 of the U nited  S tee l­
w o rk e rs  of A m erica  is v io la ting  T itle  V II  
of th e  Civil R ig h ts  A ct o f 1964 as alleged.

/  [fl 17.304.55] E m p lo y m en t te s ts  fou n d  to  be un re la ted  to  job  co n ten t a re  deem ed 
» d iscrim ina to ry .

D ecision  o f E qual E m ploym en t O p p o rtu n ity  C om m ission , D ecem ber 6, 1966.
R easonab le  cause ex ists  to  believe th a t  a food p rocessing  p lan t has violated T itle  V I I  

by  ad m in is te r in g  an  inte lligence test w hich is n o t re la ted  to  job  requ irem en ts in o rder 
to  re s tr ic t the n u m b er o f N eg ro  em ployees and by  re fusing  to  h ire N eg ro  job  applicants 
solely because  they  w ere unab le  to  pass tlie d iscr im in a to ry  test.

Back re ferences .— 1209, 1217.

Sum m ary  o f  Charges
T h e  C h arg in g  P a rtie s  a llege d iscrim in a ­

tio n  because of race, as fo llow s: A fter
N eg ro  app lican ts  had qualified fo r em p loy ­
m en t by passing  a  d ex te rity  te s t (G A T H ), 
th ey  have subsequen tly  been  system atically  
excluded  by  the  R esponden t th ro u g h  the 
use of an  in te lligence  te s t (W o n d e rlic ). 
N egroe* w ho have been able to  pass  the 
in te lligence te s t have som etim es not been

E m p lo y m en t P rac tic e s

em ployed, and  w h ite  applicants have been 
h ired  e ith e r w ith o u t te s tin g  o r w hen they  
have applied a t la te r da tes than  qualified 
N egro  app lican ts . T h e  change in s tan d a rd s  
fo r em p loym en t w orks to  the  d isadvan tage  
of N egroes  in the  com m unity  because of 
low  e d u ca tio ra l a tta inm en t. In  add ition , the 
R esp o n d en t’s use o f the  local s ta te  em p loy ­
m ent serv ice  office for initial screen ing  of 
app lican ts  re su lts  in d isadvan tage  due to

17,304,55



Br. Ap. 4

7  4  S 3  -  £  0  IT

trad itio n a l d isc r im in a to ry  p rac tices  by  th a t 
facilstj'— w here  N eg ro  a p p l ic a n t  m ay not 
sit. w here  they  en co u n te r rn d e rr^ q  and  
o n e rs  of dom estic  v-.-rk instead  or indus­
tria l w ork , and  w here  they  su tle r  delayed 
re fe rra ls  o r  a rc  refused  re fe rra ls  io  in lus- 
111o.l em p loym en t.

C hargin '.: P a rtie s  and  th e  local C O R K  
c h ap te r  (o n  beh alf of N eg ro  c itizen s) co n ­
tend  th a t r .ey i 'o r.d e rt utilize* certa in  m e th ­
ods to  avoid  h iring  su b stan tia l num b ers  of 
Nc;.rroe>. F u r th e rm o re , they  allege th a t the  
co m pany  an d  tire local po w er s tru c tu re  
have ag reed  to  lim it the. n u m b e r ol N eg ro  
w om en to be hired., to  avoid d is tu rb in g  th.e 
do m estic  w o rk  force.

Sum m ary  o f  Investigation

1. T h e  R esp o n d en t’s facility  fo r p ro ce ss ­
ing  p o u ltry  to r ih.*/.en an d  canned  food 
product? received widespread publicity prior 
to  o pen ing  in Ju n e . 19o6. As c a tty  a> ttie 
su m m er of 1065 ap p lican ts  a t th.e s ta te  em ­
p lo y m en t office requested  re fe rra ls  to  the 
co m p an y ; sc reen in g  te s ts  began  in tiie  vriri­
te r  o f 1065. A s of O c to b er 6. BT6, R e­
sp o n d en t had  h ired  1,011 pe rsons, including  
176 N egroes, classified as fo llow s: 124 un - 
sldlled ami 19 semiskilled w orkers. In serv­
ice workers, 8 skillid  workers, 5 technicians, 
and  2 clerical w orkers. S everal h undred  
jo b  o p p o rtu n itie s  a re  expected  to  m ateria lize  
and  be filled w ith in  the  nex t few  m on ths  
as th e  p lan t o pe ra tion  a rh loves full p ro d u c ­
tion. T h e  m a jo rity  of jobs availab le  fall 
in to  th e  category* of unskilled  w o rk  involved 
in d ressin g , cook ing , and p ackag ing  pou ltry .

2. In v es tig a tio n  d isclosed  th a t selection 
p  occsscs u*ed by  R esp o n d en t have lent 
th em selv es  to  d isc r im in a to ry  practices.

a. Appiicatum  LvahuHicn: In itia l sc reen ­
ing  of m ore  th a n  6,<A’)0 app lications e lim ­
ina ted  im m ed ia te ly  tlu>se w ith  less than  
e ig h t y e a rs ’ school, e rra tic  o r  in ap p ro p ria te  
w o rk  h is to rie s , over 5() years  of age, and  
irc o m p le te  ap p lica tio n s; iri add ition , p re f­
e rence  w as g iven  those  w ith  industria l w ork  
experience. All c rite ria  w ere  tug  rig id ly  
ad h ered  to , in th a t som e pa<t 50 and a  few 
w :til less th an  e ight y e a r - ’ school w ere em ­
ployed. A b o u t 1.500 app lications w ere  re- 
j T i e d ;  n early  th re e -q u a rte rs  of these w ere 
f -om  N eg ro  app lican ts , w ith schoo ling  a 
m a jo r  factor. N eg roes  com prise  nearly  
( ne-hali of th e  popu la tion  in the county , 
?r.d m ore th an  halt in n e ig h b o rin g  counties, 
l  u t of th o se  over 25 vear* of age w ho did 
t ot com ple te  e igh t y ears  of school in Surn- 
t~r, 62 per c en t a te  N egro . E ig h t years  of 
sch oo ling  is no  m o re  valid an in d ica to r of

1! a?,3G4.S5

T*-'T Number 37—52
3 - 2 4 - 6 7

I job  qualifications th a n  is a  p ass in g  sco re  
j on the  in te lligence  te s t such  as th e  W o n -
| dcrhV.

| i>. Physical Exair.ir.giion: N o  de ta iled  ex-
i an .:n a tio n  \vac- m ade of m edical records, 
j H ow ever, inver-ti ra tio n  d isclosed  th a t  there  

r :n y  be ?. s lig h t d isad v an tag e  for N eg ro  a p ­
p licants because of th e  la rge  proportion , of
re.! w:tio rs  to r :rp cu ca l reasons.

c. Refercr.cc Cheeks: R eference checks.
w ide:h a re  not requ ired  in w riting , a re  a
m ap w stum hiiii: g block , and  often b a rrie r.
to  rr any' Negro> applicant? inasm uch as some
emp:ioyeis (e* :»ecLaiiy p riva te  hoi ischolds
and fa rm ers ) a"n re lu c tan t to  b /pc th is
SOU'ce of low-iia id  labor. O f those N egroes
a  IrenLfly hired. a t least one -ha lf \v>ere for-
rr.erl y  dom estics , paid a t th e  ra te of $3.50
pcr <lav .

.1 Matiunl D exterity  Testing:  A t least 40
pmc r.t o f tiie fem ales re fe rred  by  t he s ta te
erv»liovm cnt olrfice w ere N egroes  v •ho had
pa-'s-rii the G A T B  finger and  m an:ia! de:;-
ten t;y testing . O ne  techn ical :rrc g u la rity
in the  use of th is  te c-t w as noted , in th a t
one critical sco re  of the  GA i ti B -238 sc-
ries {validated for p o u ltry  la b o re rs ) w as
not 1(>«‘ing user! . S ec tion  IV  o f the M anual
fo r t lie U S E S G eneral A p titu d e  T:est B at-
terv , published by th e  D e p artm en t o f L ab o r
(1 066)j sets  fo rth  finger d e x te rity  1fF ) and
m anual dexterity ' (M ) fac to rs  as im p o rtan t 
ap titu d es  in the  selection  o f pa id  try -d re s s ­
ing  w o rk e rs  ( D. O . T . C ode 525.867). A n 
earlie r f l°6 2 )  v e rs ion  of Section  I I I  of the 
C w de ( i  the Use o f  the G A T B  a lso  re fers  
to  ap ti tides: F  an d  M . T h e  co rre la tio n  be­
tw een lliese ap titudes and  su p erv iso ry  r a t ­
ings oi c u rre n t em ployees w as 0.53. T h is  
v a lid ity  coefficient is m oderately ' high and 
is <iuitc adequate  fo r th e  p red ic tion  of a p ­
p lican ts ’ subseq u en t perfo rm an ce  on th.e job.

N e ith e r  the  Dictionary o f  O'ccttf T i­
tles (1 >. O . m>r the  G A T B  M anual con ­
ta in  any  in fo rm ation  to  su b stan tia te  the  
n o tio n  th a t general in te lligence, verbal a b il­
ity , n;i nerica l ab ility , o r  spatial ab ility  a re  
requ ired  fo r the p e rfo rm ance  of th is kind  
o f unv-ilb ’d w ork. S ince th e  W o n d crlic  
f Y r o . t t . t i  T e s t is heavily  loa<led w itli tlie  
verbal, num erical, and  a b s tra c t reason ing  
comjK) ten ts  of “ general in te lligence’’, its 
c o n ten t is irre lev an t to  jo b  co n ten t and em ­
ployee p erfo rm ance  am ong p o u ltry -d re ss in g  
w ot k'M s.

e. I  :tellig-'nce Testing: O ne m on th  .after 
h iring  began, R esponden t in troduced  the 
\VV nd rlic P‘*t. A tria l w ith  th e  W onderlic  
had bo>n conducted  d u rin g  the  sp rin g ; N e- 

1 g ro  aw l w iiite personnel w ho  failed to

0  1967, Commerce Clearing House, Inc.



Br. Ap. 5

D*®«l*I®ns a n d  l iu lin g s  7  4  1 3 * 3 1Huanfeer 42*~45 
5-1*67

achieve qua lify ing  sca re s  in ibis early  te s t­
ing  w ere h ired  d esp ite  th e  re su lts  and  have 
p roved  to  be sa tis fac to ry  em ployees. R e­
sp o n d en t personnel w h o  ad m in is te r ■ the  
W o n d erlic  have no tra in in g  fo r o r expe­
rience  w ith  te s tin g ; th ey  use  fo r guidance 
a  sm all book let accom pany ing  the test. 
T h ey  have a rb itra r ily  su b trac ted  m ore  than  
one p o in t from  th e  score  designa ted  by p ub ­
lishers  o f the test as th e  na tiona l n o rm  for 
p e rsons  com ple ting  e ig h t years  of school. 
A  certa in  n u m b er o f irreg u lar itie s  in te st 
ad m in is tra tio n  and sco rin g  w ere no ted , in 
th a t a  miml>er of re co rd s  revealed  q u estio n ­
able  sco ring  and im p ro p er g rad ing , as well 
as a lte ra tio n s  on  te s t papers. R esp o n d en t 
con ten d s  th ese  w ere  clerical e rro rs.

3. S eldom  will th e re  be independen t ev i­
dence th a t R esponden t in tended  its educa ­
tional and testing requirem ents to  eliminate 
a  d isp ro p o rtio n a te  n u m b er of N eg ro  job  
app lican ts , bu t it is e lem en ta ry  th a t a  p e r­
son  m ust be held to  in tend  the  no rm al and 
fo reseeab le  consequences of his actions. If 
R esp o n d en t did n o t an tic ipate  th e  resu lts  
of its sc reen in g  p ro ced u res, it is certa in ly  
aw are  of th em  now. T h is  is not to  suggest 
th a t  in all c ircum stances  it is im p ro p er for 
an em p lo y er to  u tilize  selection  devices 
w hich m ay inc iden tally  re jec t a d isp ro p o r­
tiona te  n u m b er o f N eg ro  app lican ts , but 
where, as here, the educational and testing 
criteria have the effect o f  discrim inating and 
are not related to job performance, there is 
reasonable cause to believe that Respondent, 
by utilizing such devices, thereby violates 
T itle  VI I .

4. N ine of the  30 C h arg in g  P a rtie s  a rc  
included  am ong  2,000 app lican ts  aw aiting  
con sid e ra tio n  since Ju n e  1966; w hen  h iring  
is done, the R esp o n d en t s ta tes  th a t ap p li­
cations a re  selected from  the  file in a  “ ra n ­
d o m ” fashion  and  w ith  no a tte m p t to  hire 
in the  sequence in w hich people  had ap ­
plied. T h is  does n o t explain  w hy only 17 
p e r cen t of the  cu rre n t em ployees are 
N egro , w hereas 40 p e r cent of the ap p li­
can ts  re fe rred  by  the  E m p lo y m en t S ecu rity  
C om m ission  as be ing  qualified are N egro.

N egroes accoun t fo r nearly  cm e-half the  
population  in th e  co u n ty  w here  th e  p lan t 
is located , and  m ore th an  60 per cen t in 
coun ties  to  the  S o u th  and  E a s t and  66 p e r 
cen t in the  co u n ty  to  the  N o rth . D esp ite  
th is, a p a tte rn  of rig id  seg reg a tio n  pe rs is ts  
in the  area.

5. T h e  m a jo rity  o f th e  jobs to  be filled 
requ ire  no  special skills. T h o se  classified as 
sk illed m ain tenance  jobs do  requ ire  th a t the 
ap p lican t re ad  an d  w rite. T h e  R esponden t 
is using  job* d esc rip tions  developed for 
o pera tions  in s im ila r p lan ts  a t  o th e r  loca­
tions un til such  can  be w ritten  fo r th is 
facility.

6. In spection  of th e  p lan t revealed  th a t 
N eg ro  em ployees w ere  no t seg reg a ted  
w ith in  w ork ing  areas, and  th e re  w ere  no 
s igns of differential tre a tm e n t w ith  re spec t 
to  any  p lan t facilities. Som e jobs appear 
to  be dom inated  by one sex , b u t th is does 
no t ap p ea r to  resu lt from  any  claim  for 
a  b ona  fide occupationa l qualification, he- 
rnale  em ployees w ere observed  to  ope ra te  
fo rk lift tru ck s , a n o n -trad itio u a i ass ig n ­
m ent. H ow ever, m ale and fem ale em ployees 
a re  assigned  sep a ra te  series of c lock n u m ­
bers, and  pe rsonnel reco rds  a re  seg rega ted  
by  sex.

Decision

R easonab le  cause ex ists  to  believe the  R e­
sp o n d en t has v io la ted  Sections 7 0 3 (a )(1 ) 
and (2) of the  Civil R ig h ts  A ct of 1964, 
as follow-s:

1. I t  has failed to  h ire ch arg in g  parties  
and o th e rs  s im ila rly  s itua ted , because of 
race, by  a rb itra r ily  and  d iscrim ina to rilv  
se ttin g  educational s tan d a rd s  th a t are not 
justified  fo r the  jobs sough t, as a m eans 
of re s tric tin g  the  nu m b er of its N egro  
em ployees; and

2. I t  has lim ited  th e  selection  of its em ­
ployees in a  v ay th a t ten d s  to  deprive the 
charg in g  parties  and o th e rs  o f em ploym ent 
opportun ities , because of race, by the d is ­
c rim in a to ry  use of te stin g  p rocedu res w hich 
a rc  no t exem pted  by  Section  703(h).



tic  printed from  the  Proceeding!, 76th Annual Convention, APA, 1968

BIRACIAL VALIDATION OF SELECTION PROCEDURES IN 
A LARGE SOUTHERN PLANT

M. D. MITCHELL, L. E. ALBRIGHT, and F. D. McMURRY
Kaiser A lu m in u m  & Chem ical Corporation M anagem ent & Personnel Services, Inc.

Br. Ap. 6

This study, conducted at a large Southern industrial 
plant, is one phase o f a multiplant investigation of personnel 
selection practices within the corporation. The major aim 
of this particular study was to determine whether tests and 
other objective selection procedures in use are culturally 
fair and valid for predicting job success. Other aspects of 
the overall project will be devoted to a general review of the 
quality and sequencing o f all phases of the selection 
process, including employment interviews, physical exam­
inations, and reference inquiries. In addition, procedures 
for upgrading or promotion o f present employees will be 
scrutinized and revised if necessary to assure equal oppor­
tunities for all qualified employees.

METHOD

Subjects. In the study to be reported here, data from 
the personnel records o f nearly 1,600 male hourly workers 
and 3,200 applicants at a New Orleans, Louisiana, plant 
were examined. The majority of these men were semi­
skilled workers, either employed or applying for positions 
in one large department of the plant engaged in processing 
powdered alumina into molten metal. Working conditions 
are difficult because of the high temperatures required for 
the production process. Consequently, turnover is high. Of 
the 1,594 employed Ss, 361 had terminated, most within 2 
mo. of employment. The remainder of the Ss had been 
employed from 3 mo. to 8 yr. or more.

Criteria. The 361 terminees were compared with 
selected samples of the present employees with at least 3 
mo. of service to ascertain whether the turnover-prone 
individuals could have been identified at the time o f hiring. 
In addition to turnover, overall job performance evaluations 
by supervisors of the present employees were utilized as a 
criterion in the study. For work groups of 5 men or more, 
the alternation ranking method was employed, with at least 
2 supervisors ranking each man. Stanine ratings were used 
for groups smaller than 5. Ratings and rankings were 
converted to T  scores with a mean o f 50 and a standard 
deviation of 10.

To assure uniformity and understanding of rating 
instructions, meetings were held with all supervisors so that 
the procedures could be explained and demonstrated. The 
evaluations were made by the supervisors individually 
during these meetings and were collected ar the men left 
the room.

Predictors. The predictor data consisted of the Wonder- 
lie Personnel Test and biographical items extracted from 
the company’s application form. In all, 24 variables were 
analyzed including age, amount of education, race, marital 
status, number of dependents, etc.

Procedure. Separate, but similar, analyses were con­
ducted for the performance and tenure criteria. The 
biographical items were analyzed using the Lawshe-Baker 
procedure (1950) against both criteria. Subsamples of the 
available Ss were used to develop the item weights, with the

remaining Ss held out for cross-validation. A scoring key of 
12 items was developed for the tenure criterion using 
validation samples of 200 terminated and 132 Ss who had 
remained 3 mo. or more and were still employed. An item 
analysis against the performance ratings was not sufficiently 
promising to warrant cross-validation.

Intercorrelations of the Wonderlic scores, biographical 
items, and criteria were computed, as well as stepwise 
multiple regression equations against the performance 
rating criterion (the dichotomous nature o f the tenure 
criterion precluded this latter analysis). Any suspected 
nonlinear relationships were plotted graphically and in­
spected (none were found). Where appropriate, separate 
analyses were performed for Negroes and w hites.'

RESULTS

Negro-white comparisons. Data for 3,200 applicants, 
gathered from October 1966 to October 1967, indicated 
that the proportion of Negro applicants who failed to meet 
the minimum score of 12 on the Wonderlic was precisely 
twice that o f the white applicants (705/1312 or 54% of 
Negro applicants compared to 520/1899 or 27% of white 
applicants). Subsequent analyses for the employed workers 
showed that for neither whites nor Negroes was the 
Wonderlic valid against either performance (r  = -.01 for 
830 whites and -.02 for 194 Negroes) or tenure (r not 
computed but inspection of the scores revealed no essential 
difference). As would be expected, the employed whites 
had a significantly higher mean Wonderlic score than the 
Negroes (20.0 vs. 16.4, t  = 5.77, p <  .01).

Interestingly enough, there was no significant dif­
ference in the performance ratings for the two groups (M  
for whites = 50.6, SD = 8.1; for Negroes M  = 49.4, SD = 
7.1, /  not significant), thereby easing concern that a group 
o f predominantly Southern white supervisors might be 
biased in their evaluation of Negro workers. There was 
some tendency, in addition, for Negroes to stay longer on 
the job (39% stayed 3 mo. or longer vs. 33% of the whites) 
although the difference was not significant.

Interrater agreement. As noted previously, 2 super­
visors ranked or rated each employee whenever possible. 
Kendall’s coefficient of concordance was computed on the 
multiple rankings for a random sample of 66 employees and 
found to be .77, significant at the .01 level; this finding 
would seem to support the inference that a careful rating 
job was done.

Prediction o f  performance. Despite their reliability, the 
performance ratings were not significantly related to the 
biographical items or to the Wonderlic for whites or 
Negroes or for whites and Negroes combined.

Prediction o f  tenure. Although the Wonderlic was not 
found to be predictive of turnover, a scoring key of 12 
biographical items was developed and cross-validated. These 
items included race, keyed in favor of Negroes; age, keyed

575



Br. Ap. 7

in favor o f older applicants; marital status, favoring married 
applicants, etc.

The scoring key composed o f these 12 items was 
cross-validated with the results shown in Table 1. A phi 
coefficient com puted from these data was .30, x2 = 22.50, 
significant beyond the .01 level.

TABLE 1

Cross-Validation of Tenure Scores for 
Terminated and Still Employed Groups

Score
Terminated Still employed Total
No. % No. % No. %

Less than 12 99 53 13 18 112 44
12 - 15 43 23 27 38 70 27
16 or More 44 24 31 44 75 29

Total 186 100 71 100 257 100

DISCUSSION

With the lack o f positive results in predicting perform­
ance and the finding that the Wonderlic had been 
screening out a disproportionate number o f Negroes, it was 
decided to revise the entire selection process. The changes 
are as follows:

1. The Wonderlic has been dropped and the SRA 
Pictorial Reasoning Test has been introduced in to  the 
prehire process, on an experimental basis only. No selec­

tion decisions will be made on the basis o f this test until it 
has been validated.

2. A biographical inventory has been introduced into 
the selection process on an experimental basis. Hopefully, it 
can provide further aid in reducing turnover and in future 
performance studies.

3. The selection process has been altered to  include an 
interview and a more comprehensive orientation session. 
The changes follow a long period o f almost total reliance on 
test scores to  select employees from a large group o f 
applicants.

4. The “ tenure key” developed in the study will be 
used in the selection process for hourly employees until 
experimental data can provide an improved version.

These changes in one plant’s selection process are typi­
cal o f those which will probably be necessary for a number 
o f other plants. Hopefully, they will contribute to a fairer 
and more valid set o f procedures for all applicants. To the 
extent that the situations and findings o f this study may be 
representative o f the “ state o f the a rt”  o f personnel 
selection, the investigators would urge other employers to 
scrutinize their selection practices in light o f the current 
requirements to provide equal opportunity  for all appli­
cants.

REFERENCE

Lawshe, C. H.f & Baker, P. C. Three aids in the evaluation of the 
significance o f the difference between percentages. E d u c a tio n a l  
a n d  P sy c h o lo g ic a l M ea su re m e n t, 1950, 10,263-270.



§ 13.">jr.3 Hydrocortisone.
A tolerance is established for negligi­

ble residues of hydrocortisone (as hydro­
cortisone sodium succinate or hydrocor­
tisone acetate) in  milk a t 10 parts  per 
billion. .
§ 135g.25 Neomycin.

Tolerances a re  established for rcsi- 
dues of neomycin in  food as follows: 
0.25 p a r t per million (negligible residue) 
in  edible tissues of calves: and  0.15 part 
per million (negligible residue) in  milk. 
§ 135g.66 Polymyxin 15.

A tolerance is established for negligible 
residues of polymyxin B in  milk a t  2 
units per milliliter.
§ 135g.67 Methyl prednisolone.

A tolerance is established fo r negligible 
residues of methylprednisolone in  milk 
a t  10 parts  per billion.

3. Part- 121 is am ended by deleting 
§ 121.1003 N e o m y c in ,  -p o ly m y x in  * * * 
and § 121.1104 N e o m y c in .

Any person who will be adversely af­
fected by th e  foregoing order may a t any 
tim e w ithin 30 days afte r  its date of 
publication in  the F e d e r a l  R e g i s t e r  file 
w ith th e  H earing Clerk. D epartm ent of 
H ealth, Education, and Welfare, Room 
6-62, 5600 Fishers Lane, Rockville, Md. 
20852, w ritten  objections thereto in  quin­
tu p le  ate. Objections shall show wherein 
the  person filing will be adversely affected 
by the  order and specify w ith particu ­
la rity  the  provisions of the  order deemed 
objectionable and the grounds for the 
objections. I f  a  hearing is requested, the 
objections m ust state  the  issues for 
the  hearing. A hearing will be granted if 
the objections are  supposed by grounds 
legally sufficient to  justify  the  relief 
sought. Objections may be accompanied 
by a  mem orandum  or brief in  support 
thereof.

E f fe c t iv e  d a te .  This order shall become 
effective on its date  of publication in  the 
F e d e r a l  R e g i s t e r .

( S e c .  5 1 2 ( i ) , 8 2  s t a t .  3 4 7 ;  21  U .S .C .  3 G 0 b ( i ) )

D ated: Ju ly  23, 1970.
C h a r l e s  C .  E d w a r d s ,' 

C o m m is s io n e r  o f  F o o d  a n d  D ru g s . . 
[ F .R .  D o c .  7 0 - 9 3 6 8 ;  F i l e d ,  J u l y  3 1 , 1 970 ;

8 : 4 7  a .m .]

PART 135e— NEW ANIMAL DRUGS 
FOR USE IN ANIMAL FEEDS 

PART 135g— TOLERANCES FOR RESI­
DUES OF NEW ANIMAL DRUGS IN 
FOOD

Dichlorvos
T he Commissioner of Food and Drugs 

has evaluated a  new anim al drug appli­
cation  (40—848V) filed by Shell Chemical 
Co., A gricultural Chemical Division, 110 
W est 51st Street, New York, N.Y. 10020, 
proposing the safe and  effective use of 
dichlorvos as an  anthelm intic in  swine 
feed. "The application is approved. Based

B r . Ap. 8

RULES AND REGULATIONS 12333

A gricultural Chemicals Division, 110 
W est 51st Street. New York, N.Y. 10020.

(c) A s s a y  l im i t s .  Finished feed m ust 
contain 85-135 percent of the labeled 
am ount of dichlorvos.

(d) S p e c ia l  c o n s id e r a tio n s . Do not mix 
in to  feeds th a t are  to be pelleted. Do not 
mix w ith pelleted feed. Feed must be 
m aintained and fed dry. Do not use any 
drug, insecticide, pesticide, or chemical 
having cholinesterase-inhibiting activity 
either simultaneously or w ithin a  few 
days before or after worming animals 
w ith the  feed.

(e) R e la te d  to le r a n c e s  i n  e d ib le  p r o d ­
u c ts .  See I 135g.75.

(f) C o n d i tio n s  o f  u s e . I t  is used as 
follows:

Am ount Lim itations Indication for use

1. Dichlorvos___ 0.030% For swine u p  to  70 pounds body weight, feed as
sole ration for 2 consecutive days. For swino 
from 70 pounds to m arket weight, feed as solo 
rat km a t the rato of 8.4 pounds of feed per head 
until the medicated feed has been consumed. 
For boars, open or bred giits, and sows, feed as 
sole ration a t  the rate  of 4.2 pounds per head 
per day for 2 consecutive days.

2. Dichlorvos—  0.05% For boars, open or bred giits, and sows, feed as
sole ration a t  the rate of 6 pounds per head for 
one feeding.

§ 135g.75 Dichlorvos.
A tolerance of 0.1 part per million is established for negligible residues of di­

chlorvos (2,2-dichlorovinyl dim ethyl phosphate) in  the edible tissues of swine. 
E f fe c t iv e  d a te .  This order is effective upon publication in  the F e d e r a l  R e g i s t e r .

( S e c .  5 1 2 ( 1 ) ,  8 2  S t a t .  3 4 7 ;  21  U .S .C . 3 6 0 b ( i )  )

For the removal and control of ma­
ture, im m ature,and/or fourth-stage 
larvae of tho w hipworm (Tric.huris 
suin'), nodular worm (Oesophagotlo- 
murn sp.), and the large roundworm 
(Ascarit m um ) of the Intestiaar 
tract. .

Do.

upon an  evaluation of the  data  before 
him , the Commissioner concludes th a t a 
tolerance is required to assure th a t edible 
tissues of swine treated  w ith dichlorvos 
are safe for hum an consumption.

Therefore, pursuan t to provisions of 
the  Federal Food, Drug, and  Cosmetic 
Act (see. 512(i) , 82 S tat. 347; 21 U.S.C. 
3G0b(i)) and  under authority  delegated 
to the  Commissioner (21 CFR 2.120), a 
new section is added to P a r t 135e and 
another to P a r t 135g, as follows:
§ 135c.54  Dichlorvos.

(a) C h e m ic a l  n a m e .  2,2-Dichlorovinyl 
dim ethyl phosphate.

(b) A p p r o v a ls .  (1) Prem ix level 9.6 
percent granted  to Shell Chemical Co.,

Dated: Ju ly  23,1970.
S a m  D .  F i n e , 

A s s o c ia te  C o m m is s io n e r  
f o r  C o m p lia n c e .

[F .R .  D o c .  7 0 - 9 9 6 7 ;  F i l e d ,  J u l y  3 1 ,1 9 7 0 ;  8 : 4 6  a .m .]

Title 28—LABOR
Chapter XIV— Equal Employment 

Opportunity Commission 
PART 1607— GUIDELINES ON EM­

PLOYEE SELECTION PROCEDURES
By virtue of the authority  vested in  it 

by section 713 of title VII of the’ Civil 
R ights Act of 1964, 42 U.S.C., section 
2000e-12, 78 S tat. 265, the Equal.
Employment Opportunity Commission 
hereby issues T itle 29, C hapter XIV, 
§ 1607 of the Code of Federal Regulations.

These Guidelines on Employee Selec­
tion Procedures supersede and enlarge 
upon the  Guidelines on Employment 
Testing Procedures, issued by the Equal 
Employment Opportunity Commission 
on August 24, 1966. Because the  m a­
te ria l herein is interpretive in nature, 
the  provisions of the Administrative 
Procedure Act (5 U.S.C. 553) requiring 
notice of proposed rule making, oppor­
tunity  for public participation, and  delay 
in  effective date are  inapplicable. The 
Guidelines shall be applicable to charges 
and  eases presently pending or hereafter 
filed w ith the Commission.
S e e .
1 6 0 7 .1  S t a t e m e n t  o f  p u r p o s e .
16C 7.2  “T e s t ” d e f in e d .
1 6 0 7 .3  D i s c r i m i n a t i o n  d e f in e d .

S e c .
1 6 0 7 .4  E v id e n c e  o f  v a l id i t y .
1 6 0 7 .5  M i n im u m  s t a n d a r d s  f o r  v a l id a t io n .
1 6 0 7 .6  P r e s e n t a t i o n  o f  v a l i d i t y  e v id e n c e .
1 6 0 7 .7  U s e  o f  o t h e r  v a l i d i t y  s t u d i e s .
1 6 0 7 .8  A s s u m p t i o n  o f  v a l i d i t y .
1 6 0 7 .9  C o n t i n u e d  u s e ' o f  t e s t s . .
1 6 0 7 .1 0  E m p lo y m e n t  a g e n c i e s  a n d  e m p lo y ­

m e n t  s e r v ic e s .
1 6 0 7 .1 1  D i s p a r a t e  t r e a t m e n t ,
1 6 0 7 .1 2  R o t e s t in g .
1 6 0 7 .1 3  O t h e r  s e l e c t i o n  t e c h n i q u e s .
1 6 0 7 .1 4  A f f ir m a t iv e  a c t io n .

Au t h o r it y ; T h e  p r o v i s io n s  o f  t h i s  P a r t  
1 6 0 7  i s s u e d  u n d e r  S e c .  7 1 3 ,  7 8  S t a t .  2 6 5 , 4 2  
U .S .C .  s e c .  2 0 0 0 e - 1 2 .

§ J 6 0 7 .1 S ta te m e n t  o f  p u rp o s e .
(a) The guidelines in  th is p a r t are 

based on the belief th a t properly vali­
dated and standardized employee selec­
tion procedures can significantly con­
tribute to the  im plem entation of non- 
discriminatory personnel policies, as 
required by title VII. I t  is also recognized 
th a t professionally developed tests, when 
used in  conjunction w ith o ther tools of 
personnel assessment and complemented 
by sound program s of job design, may 
significantly aid in the development and 
m aintenance of an  efficient work force 
and. indeed, aid  in  the  utilization 
and  conservation of hum an resources 
generally.

FEDERAL REGISTER, VOL. 35, NO. 149—SATURDAY, AUGUST 1, 1970



12334 RULES AND Br. Ap. 9
(b) An examination of charges of dis­

crim ination filed w ith the  Commission 
and an  evaluation of the  results of the 
Commission’s compliance activities has 
revealed a  decided increase in  to ta l test 
usage and a  m arked increase in  doubtful 
testing practices which, based on our 
experience, tend  to have discriminatory 
effects. In  m any cases, persons have 
come to rely almost exclusively on tests 
as the basis for making the  decision to 
hire, transfer, promote, g ran t member­
ship, tra in , refer or retain , w ith the 
result th a t candidates are selected c r  re­
jected on the basis of a single test score. 
Where tests are so used, minority can­
didates frequently experience dispropor­
tionately high rates of rejection by fail­
ing to a tta in  score levels th a t  have been 
established as minimum standards for 
qualification.

I t  has also become clear th a t in  m any 
instances persons are  using tests as the 
basis for employment decisions without 
evidence th a t they are valid predictors 
of employee job performance. Where 
evidence in  support of presumed rela­
tionships between test perform ance and 
job behavior is lacking, the  possibility of 
discrimination in  the application of test 
results must be recognized. A test lacking 
dem onstrated validity (i.e., having no 
known significant relationship to  job 
behavior) and  yielding lower scores for 
classes protected by title VII may result 
in  the rejection of many who have neces­
sary qualifications for successful work 
performance.

(c) Tire guidelines in  th is -p a r t  are 
designed to serve as a workable set of 
standards for employers, unions and 
employment agencies in determining 
w hether the ir selection procedures con­
form w ith the obligations contained in 
title  VII of the Civil Rights Act of 1984. 
Section 703 of title VII places an  affirma-" 
t-ive obligation upon employers, labor 
unions, and  employment agencies, as 
defined in section 701 of the Act, n o t to 
discriminate because of race, color, 
religion, sex, or national origin. Subsec­
tion (h) of section 703 allows such per­
sons "* * * to give and to ac t upon the 
results of any professionally developed 
ability test provided th a t such test, its 
adm inistration or action upon the results 
is not designed, intended or used to dis­
crim inate because of race, color, religion, 
sex or national origin.”
§ 1 6 0 7 .2  “Test” defined.

For the purpose of the guidelines in  
this part, the term  “test” is defined as 
any paper-and-pencil or performance 
measure used as a basis for any employ­
m ent decision. The guidelines in this pa rt 
apply, for example, to ability tests which
are dosigned to measure cligibility for
hire, t ruu:;fcr , promotion. membership,
irainin refer ral or retention. This defi-
niiion include r;, but is r.ot. res trictcd to.
measu:■os O f !'■oneral in Loll: co, m ental
ability and lea riling ability ; s in .•c.Jic inlel-
lcclual chili tics; mechanic!Hi, c iorical and
otlier aptitudes; dexterity and coordir.a-
tion; knowledge and proficiency; occu­
pational and o ther interests; and a tti­
tudes, personality or tem peram ent. The

REGULATIONS

te rm  "test” include 
quantified cr stare’

addition to the a bo 
or disqualifying per

formal, scored,
d techniques of 

including, in  
;cific qualifying 
fistcry or back­

ground requirements, specific educa­
tional or work history requirements, 
scored interviews, biographical inform a­
tion blanks, interviewers’ rating  scales, 
scored application forms, etc.
§ 1607.3 Discrimination defined.

The use of any test which adversely 
affects hiring, promotion, tran sfer or 
any o ther employment or membership 
opportunity of classes protected by title 
VII constitutes discrimination unless:
(a) the test has been validated and evi­
dences a  high degree of utility as here­
in a fte r described, and (b) the person 
giving or acting upon the results of the 
particu lar test can dem onstrate th a t a l­
ternative suitable hiring, transfer or 
promotion procedures are unavailable 
for his use.
§ 1607.4  Evidence o f validity.

(a) Each person using tests to select- 
from  among candidates for a position or 
for membership shall have available for 
inspection evidence th a t the tests are 
being used in  a  m anner which does not 
violate § 1607.3. Such evidence shall be 
examined for indications of possible 
discrimination, such as instances of 
higher rejection rates for minority can­
didates th a n  nonminority candidates. 
Furtherm ore, where technically fea­
sible, a test should be validated for each 
minority group with which it  is used; 
th a t is. any differential rejection rates 
th a t may exist, based on a test, m ust be 
relevant to  performance on the jobs in 
question.

(b) The term  ‘‘technically feasible” 
as used in these guidelines means having 
or obtaining a  sufficient number of m i­
nority  individuals to achieve findings of 
statistical and practical significance, tile 
opportunity to obtain unbiased job per­
formance criteria, etc. I t  is the responsi­
bility of the person claiming absence of 
technical feasibility to positively demon­
strate  evidence of this absence.

(c) Evidence of a te st’s validity should 
consist of empirical data dem onstrating 
th a t the test is predictive of or signifi­
cantly  correlated with im portant ele­
ments of work behavior which comprise 
or are  relevant to the job or jobs for 
which candidates are being evaluated.

(1) If  job progression structures and 
seniority provisions are so established 
th a t new employees will probably, w ithin 
a reasonable period of time and in  a 
great m ajority of cases, progress to a 
higher level, it may be considered th a t 
candidate:; arc being evaluated for jo 's  
a t  th a t higher level. However, where job 
progression is net so neariy automatic, 
or the time span is such tha t higher 
level jobs or employees’ potential may 
be expected to change in signiffc-nt 
ways, it shall be considered thud candi­
dates are being evaluated for a  d o  a t 
or near the entry level. This point is 
ma.de to underscore the principle th a t 
a tta inm ent of or performance a t  a 
higher level job is a relevant criterion

in validating employment tests only 
when there is a  high, probability th a t 
persons employed will in  fac t a tta in  
th a t higher level job w ithin a reasonable 
period of time.

(2) Where a  te st is to be used in  dif­
ferent units of a  m ultiunit organization 
and no significant differences exist be­
tween units, jobs, and applicant popula- 
tions, evidence obtained in one un it may 
suffice for the others. Similarly, where 
the  validation process requires the  col­
lection of data  throughout a  m ultiunit 
organization, evidence of validity specific 
to each un it may not be required. There 
may also be instances where evidence of 
validity is appropriately obtained from 
more than  one company in  the same in ­
dustry. Both in this instance and in  the 
use of data  collected throughout a  m ulti­
unit organization, evidence of validity 
specific to each un it may not bo re ­
quired: P r o v id e d , T h a t no significant 
differences exist between units, jobs, and  
applicant populations.
§ 1607.3 Minim un standards for vali-

(a) For the purpose of satisfying the 
requirements of this part, empirical evi­
dence in support of a te st’s validity m ust 
be based on studies employing generally 
accepted procedures for determ ining cri­
terion-related validity, such as those 
described in  “S tandards fo r Educational 
and Psychological Tests and  M anuals” 
published by American Psychological 
Association, 1200 17th S tree t NW„ 
W ashington. D.C. 20036. Evidence of 
content or construct validity, as defined 
in  th a t publication, may also be appro­
priate where criterion-related validity is 
not feasible. However, evidence fo r con­
ten t or construct validity should be ac­
companied by sufficient inform ation from 
job analyses to dem onstrate the  rele­
vance of the content (in the case of job 
knowledge or proficiency tests) or the 
(. on? trac t (in the case of tra it m easures). 
Evidence of content validity alone may 
be acceptable for well-developed tests 
th a t consist of suitable samples of the 
essential knowledge, skills or behavior’s 
composing the job in question. The types 
o f  knowledge, skills or behaviors con­
templated here do not include those 
which can be acquired in  a  brief orien­
ta tion  to the job.

(b) Although any appropriate valida­
tion strategy may be used to  develop 
such empirical evidence, the following 
minimum standards, as applicable, m ust 
be m et in the research approach and in 
the presentation of results which con­
stitu te evidence of validity:

( l i  Where a validity.study is conducted 
in which tests are  adm inistered to appli­
cants, with criterion data  collected later, 
the sample of subjects m ust be represent­
ative of the norm al or typical candidate 
group for the job or jobs in  question. 
This fu rther assumes th a t the  applicant 
sample is representative of the minority 
population available for the job or jobs in 
question in the local labor market. Where 
a validity study is conducted In which 
tests arc adm inistered to present em­
ployees, the sample m ust be represent­
ative of the minority groups currently

FEDERAL REGISTER, VOL. 35, NO. 149—SATURDAY, AUGUST 1, 1970



Br. Ap. 10

r : afiauon. If 
to include 

ai.drtior. studi* s 
l work forte. ‘.ho 
: study w ukout 
5 no t relieve any 

obligation for

included r.t the r .p / .c  
K i:. no t technically - 
m inority employees in 
concluded on tire ju r a  
conduct of u valid:’ '.: 
m inority candidates da 
person of his subsequ 
validation when inclusion of minority 
candidates becomes technically feasible.

<.2 ) Tests m ust be adm inistered and 
scored under controlled and  standardized 
conditions, w ith proper safeguards to 
protect the security of test scores and to 
insure th a t scores do not enter into any 
judgm ents of employee adequacy tha t 
£.re to be used as criterion measures. 
Copies of tests and  test manuals, includ­
ing instructions fo r adm inistration, 
scoring, and interpretation of test results, 
th a t are privately developed and /o r are 
not available through norm al commercial 
channels m ust be included as a  p a r t of 
the  validation evidence.

(3) The work behaviors or o ther cri­
te ria  of employee adequacy which the 
test is intended to predict or identify 
m ust be fully described; and. addition­
ally, in the case of rating  techniques, the 
appraisal form (s) and instructions to 
the  ra ter(s) m ust be included as a  pa rt 
of the  validation evidence. Such criteria 
may include measures ether than  actual 
work proficiency, such as training time, 
supervisory ratings, regularity of attend­
ance and tenure. W hatever criteria are 
used they m ust represent m ajor or 
critical work behaviors as revealed by 
careful job analyses.

(4) In  view of the  possibility of bias 
inherent in  subjective evaluations, su­
pervisory rating  techniques should be 
carefully developed, and the ratings 
should be closely examined for evidence 
of bias. In  addition, minorities might 
obtain unfairly low performance crite­
rion scores for reasons other than  su­
pervisors’ prejudice, as, when, as new 
employees, they have had  less opportu­
nity  to learn job skills. The general point 
is th a t all criteria need to  be examined to 
insure freedom from factors which would 
unfairly  depress the scores of minority 
groups.

(5) Differential validity. D ata m ust be 
generated and results separately reported 
for m inority  and nonminority groups 
wherever technically feasible: Where a 
m inority group is sufficiently large to 
constitute an  identifiable factor in  the 
local labor market, but validation data 
have not been developed and presented 
separately for th a t group, evidence Gf 
satisfactory validity based on other 
groups will be regarded as only provi­
sional compliance with these guidelines 
pending separate validation of the test 
for the m inority group in  question. (See 
§ 1607.9). A test which is differentially 
valid may be used in  groups for which 
i t  is valid but not for those in which 
it is not valid. In  th is regard, where a 
te st is valid for two groups but one group 
characteristically obtains higher test 
scores than  the o ther w ithout a  cor-

• responding difference in  job performance, 
cutoff scores m ust be set so as to  predict 
the  same probability of job success in 
both groups.

RULES A.KZ niGLT-ATlCMS
Cc) In  assessing the utility  of a  test 

the  following considerations will be ap ­
plicable:

(1) The relationship between the test 
and a t least one relevant criterion must 
be statistically significant. This o rd i­
narily  means chat the relationship should 
be sufficiently high as to have a prob­
ability of no more than  1  to 20 to have 
occurred by chance. However, the use of 
a single test as the sole selection device 
will be scrutinized closely when th a t test 
is valid against only one component of 
job performance.

c2) In  addition to statistical signifi­
cance, the  relationship between the test 
andcriterion should have practical sig­
nificance. The magnitude of the  rela­
tionship needed for practical signifi­
cance or usefulness is affected by sev­
eral factors, including:

(i) The larger the proportion of ap­
plicants who are hired for or placed on 
the job, the higher the relationship needs 
to be in  order to be practically useful. 
Conversely, a  relatively low relationship 
may prove useful when proportionately 
few job vacancies are available;

(ii) The larger the proportion of ap ­
plicants who become satisfactory em­
ployees when not selected on the basis 
of the test, the h igher the relationship 
needs to be between the test and  a  cri­
terion of job success for the test to be 
practically useful. Conversely, a  relatively 
low relationship may prove useful when 
proportionately few applicants tu rn  out 
to be satisfactory;

(iii) The smaller the  economic and 
hum an risks involved in  hiring an  un­
qualified applicant relative to  the  risks 
entailed in  rejecting a qualified appli­
cant, the  g reater the relationship needs 
to  be in  order to be practically useful. 
Conversely, a  relatively low relationship 
m ay prove useful when the form er risks 
are relatively high.
§ 1607.6 Presentation o f  validity evi­

dence.
The presentation of the  results of a 

validation study m ust include graphical 
and  statistical representations of the re ­
lationships between the test and the cri­
teria, perm itting judgm ents of the test’s 
utility  in making predictions of fu ture 
work behavior. (See § 1607.5(c) concern­
ing assessing utility of a  test.) Average 
scores for all tests and  criteria  m ust be 
reported for all relevant subgroups, in ­
cluding m inority and nonm inority groups 
where differential validation is required. 
W henever statistical adjustm ents are 
made in validity results for less than  per­
fect reliability or for restriction of score 
range in the test or the criterion, or both, 
the supporting evidence from the valida­
tion study m ust be presented in detail. 
Furtherm ore, for each test th a t is to  be 
established or continued as an  opera­
tional employee selection instrum ent, as 
a  result of the validation study, the 
minimum acceptable cutoff (passing) 
score on the test m ust be reported. I t  is 
expected th a t each operational cutoff 
score will be reasonable and consistent 
w ith normal expectations of proficiency 
w ithin the work force or group on which 
the  study was conducted.

§1607.7 Use of oilier %ah'dily studies.
In  cases where the \validity cf a test

cannot be determine d pursuant to
§ 1607.4 and 5 1607.5 (e.g., the number of
subjects is less than  th a t required for a
tcchnically adequate va iidation study, or
an  appropriate criterion measure cannot
be developed), evident:o from validity
studies conducted in oil-ior organizations.
such as th a t reported in test manuals and
professional literature, may be consid­
ered acceptable when: fa; The studies 
pertain  to jobs which are comparable 
(i.e., have basically the same task ele­
m ents), and  (b) there are no major dif­
ferences in contextual variables or 
sample composition which are likely to 
significantly affect validity. Any person 
citing evidence from  eth er validity 
studies as evidence of test validity for his 
own jobs m ust substantiate in detail job 
com parability and m ust dem onstrate the 
absence of contextual or sample differ­
ences cited in  paragraphs (a) and Co) of 
th is section.
§ 1607.3 Assumption o f  validity.

(a) U nder no circumstances will the 
general reputation of a  test, its author 
or its publisher, or casual reports of test 
utility be accepted in lieu of evidence of 
validity. Specifically ruled cu t are: as­
sumptions of validity based on test names 
o r descriptive labels; all forms of pro­
motional litera ture; data  bearing on the 
frequency of a te st’s usage; testimonial 
statem ents of sellers, users, c r  consul­
tan ts ; and other nonempirical or anec­
dotal accounts of testing practices or 
testing outcomes.

(b) Although professional supervision 
of testing activities may help greatly to 
insure technically sound and nondis- 
crirninatory test usage, such involvement 
alone shall not be regarded as constitut­
ing satisfactory evidence of test validity. 
§ 1607.9 Continued use o f  tests.

Under certain  conditions, a person may 
be perm itted to continue the use of a 
te st which is not a t  the  m om ent fully 
supported by the required evidence of 
validity. If, for example, determ ination 
of criterion-related validity in a specific 
setting is practicable and required but 
not yet obtained, the  use of the test may 
continue: P r o v id e d :  (a) The person can 
cite substantial evidence of validity as 
described in  § 1607.7 (a) and (b ) ; and 
(b) he has in  progress validation pro­
cedures which are designed to produce, 
w ithin a  reasonable time, the additional 
data  required. I t  is expected also th a t the 
person may have to alter or suspend test 
cutoff scores so th a t score ranges broad 
enough to perm it the  identification cf 
criterion-related validity will be obtained.
§ 1607.10 Employment agencies and 

employm ent services.
(a) An employment service, including 

private employment agencies, S tate em­
ploym ent agencies, and  the U.S. Training 
and Employment Service, as defined in 
section 701(c), shall n o t make applicant 
or employee appraisals or referrals based 
on the results obtained from any psycho­
logical te st or other selection star-dare.

No. 140-
FEDERAL REGISTER, VOL 35, NO. 149—SATURDAY, AUGUST 1, 1970



i:r>o
B r .  A p . 11

RULES AND REGULATIONS

not validated in  accordance w ith these 
guidelines.

tb ' An employment agency or service 
which is requested by an  employer or 
union to devise a  testing program  is 
required to follow the standards for test 
validation as set fo rth  in these guide­
lines. An employment service is not 
relieved of its obligation herein because 
the test user did not request such valida­
tion or has requested the use of some 
lesser standard  than  is provided in these 
guidelines.

(c) W here an  employment agency or 
service is requested only to adm inister 
a testing program  which has been else­
where devised, the employment agency 
or service shall request evidence of vali­
dation. as described in  the guidelines in  
th is part, before it adm inisters the test­
ing program  and /o r makes referral pur­
suan t to the test results. The employment 
agency m ust furn ish  on request such 
evidence of validation. An employment 
agency or sendee will be expected to 
refuse to adm inister a  test where the 
employer or union does n o t supply satis­
factory evidence cf validation. Reliance 
by the test user on the reputation of the 
test, its author, or the  nam e of the test 
shall not be deemed sufficient evidence 
of validity (see § 1007.8(a)). An employ­
m ent agency or service may adm inister 
a  testing program  where the evidence of 
validity comports w ith the  standards 
provided in  § 1607.7.
§ 1607.11 Disparate treatment.

The principle of d isparate or unequal 
treatm en t m ust be distinguished from 
the  concepts of test validation. A test 
or other employee selection standard— 
even though validated against job per­
formance in  accordance w ith the guide­
lines in  th is part—cannot be imposed 
upon any individual or class protected 
by title VII where o ther employees, 
applicants or members have not been 
subjected to th a t s tandard. D isparate 
treatm ent, for example, occurs where 
members of a minority or sex group have 
been denied the  same employment, pro­
motion, transfer or membership oppor­
tunities as have been made available to 
o ther employees or applicants. Those 
employees or applicants who have been 
denied equal treatm ent, because of prior 
discriminatory practices or policies, must 
a t least be afforded the  same opportu­
nities as had  existed for o ther employees 
or applicants during the period of dis­
crimination. Thus, no new test or o ther 
employee selection standard  can be im ­
posed upon a class of individuals pro­
tected by title VII who. but for prior 
discrimination, would have been granted 
the opportunity to qualify under loss 
stringent selection standards previously 
in  force.
§ 1607.12 Itcte-ting.

Employers, unions, and employment 
agencies should provide an  opportunity 
for retesting nr.d reconsideration to 
earlier “failure” candidates who have 
availed themselves of more train ing  or 
experience. In  particular, if any appli­
cant or employee during the course of 
an interview or other employment pro­

cedure claims more education or experi­
ence, th a t individual should be retested.
§ 1607.13 O ther selection teclmiqwes.

Selection techniques o ther than  tests, 
as defined in  5 ICC7.2, may be improperly 
used so as to have the effect of discrim­
inating against minority groups. Such 
techniques include, but are not restricted 
to, unscored or casual interviews and un ­
scored application forms. Where there 
are data suggesting employment discrim- 
ination, the person may be called upon to~* 
present evidence concerning the validity 
of his unscored procedures as well as 
of any tests which may be used, the 
evidence of validity being of the same 
types referred.to in §5 1607.4 and 1607.5. 
D ata suggesting the  possibility of dis­
crim ination exist, for example, when 
there are differential rates of applicant 
rejection from  various minority and 
nonm inority or sex groups for the  same 
job or group of jobs or when there are 
disproportionate representations of m i­
nority and nonm inority or sex groups 
among present employees in  different 
types of jobs. If  the person .is unable 
or unwilling to  perform  such validation 
studies, he has the option of adjusting 
employment procedures so as to elimi­
nate  the conditions suggestive of em­
ploym ent discrimination.
§ 1607.14 Affirmative action.

Nothing in  th e se . guidelines shall be 
interpreted as diminishing a  person’s ob­
ligation under both title VII and Execu­
tive O rder 11246 as amended by Execu­
tive O rder 11375 to undertake affirmative 
action tc  ensure th a t applicants or em­
ployees are treated  w ithout regard to 
race, color, religion, sex, or national 
origin. Specifically, the  use of tests which 
have been validated pursuan t to these 
guidelines does not relieve employers, 
unions or employment agencies of the ir 
obligations to take positive action in  a f­
fording employment and tra in ing  to 
members of classes protected by title VII.

The guidelines in this pa rt are effec­
tive upon publication in the F e d e r a l  
R e g i s t e r .

Signed a t W ashington, D.C„ 21st day 
of July 1970.

[ s e a l ]  W i l l i a m  H. B r o w n  III.
C h a ir m a n .

( F .R .  D o c .  7 0 - 9 9 6 2 ;  F i l e d ,  J u l y  3 1 , 1970 ;
8 : 4 6  a .m .J

Chapter !!!— Board of Mine Opera­
tions Appeals, Department of the 
Interior

MINE HEALTH AND SAFETY;
APPEALS

In  F.R. Doc. 70-3789 appearing in the 
issue for Saturday. M arch 28. 1970, on 
page 5255, there was established in  Title 
30, Code of Federal Regulations, a new 
C hapter III. P art 800 thereof described 
the organization and jurisdiction of the 
Board of Mine Operations Appeals to 
perform the review functions of the Sec­

retary  of the In terio r under the Federal 
Coal Mine H ealth and  Safely Act of 
1909. This Board shall also be authorized 
to  perform  the review functions of the 
Secretary under the Federal M etal and 
Nonmetallic Mine Safety Act of 1966. For 
this reason. P a r t 3 0 0  is hereby amended 
by substituting therefor a new P a rt 3 0 0 ,  
reading as set fo rth  below, to include 
these functions. Also, a new P a rt 3 0 2 ,  as 
set fo rth  below, describing the Board’s 
procedures under the Federal M etal and 
Nonmetallic Mine Safety Act, is hereby 
added to C hapter III. New P arts  3 0 0  and 
3 0 2  shall become effective upon their 
publication in the F e d e r a l  R e g i s t e r .

W a l t e r  J .  H i c k e l , 
S e c r e ta r y  o f  t h e  I n te r io r .

J u l y  3 0 , 1 9 7 0 .

PART 300— ORGANIZATION
S e e .
3 0 0 .1  J u r i s d i c t i o n .
3 0 0 .2  P o w e r  o f  S e c r e t a r y .
3 0 0 .3  C o n s t i t u e n c y  a n d  D e c i s i o n s  o f  B o a r d .

Au tho r ity : T h e  provisions o f  th is  P a r t
3 0 0  i s s u e d  p u r s u a n t  t o  s e c .  5 0 8 , P u b l i c  L a w  
9 1 - 1 7 3 ;  83  Sfcafc. 8 0 3 ;  a n d  s e c .  9 ,  P u b l i c  L a w  
8 9 - 5 7 7 ;  8 0  S t a t .  7 7 7 ;  3 0  U .S .C .  7 2 8 .

§ 300.1 Jurisdiction,
(a) The Board of Mine Operations 

Appeals, under the  direction of a  Board 
Chairman, Is authorized to exercise, pur­
suant to regulations published in  the  
F e d e r a l  R e g i s t e r , the authority  of the 
Secretary under the Federal Coal Mine 
H ealth and Safety Act of 1969 pertaining 
to:

(1) Applications for review of w ith­
drawal orders: notices fixing a  tim e for 
abatem ent of violations of m andatory 
health  or safety standards: discharge or 
acts of discrimination for invoking rights 
under the  Act, and entitlem ent cf miners 
to compensation:

( 2 )  Assessment of civil penalties for 
violation of mandatory health  or safety 
standards or o ther provisions of the Act:

( 3 )  Applications for tem porary relief 
in  appropriate cases;

(4) Petitions for modification of m an­
datory safety standards:

(5) Appeals from orders and decisions 
of hearing examiners; and

(6) All o ther appeals and  review pro­
cedures cognizable by the Secretary un­
der the Act.

(b) The Board is authorized to  exer­
cise, pursuant to  regulations published 
in the F e d e r a l  R e g i s t e r , the authority  
of the Secretary under the Federal Metal 
and Nonmetallic Mine Safety Act of 1966 
to review w ithdrawal orders.

(c) In  the exercise of the foregoing 
functions the Board is authorized to 
cause investigations to be made, order 
hearings, and  issue orders and notices 
as deemed appropriate to secure the just 
and prom pt determ ination of ail pro­
ceedings. Decisions of the Board on all 
m atters w ithin its jurisdiction shall be 
final for the Department.
§ 300.2 Power o f  Secretary.

No tiling in this pa rt shall be construed ' 
to deprive the Secretary of any power 
conferred upon him by the  aforecited 
Acts or by other law.

FcDc?AL REO!$T£’ . VOL. 35, NO. 149—SATURDAY, AUGUST 1, 1970



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