Griggs v. Duke Power Company Brief for Petitioner
Public Court Documents
January 1, 1970
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Brief Collection, LDF Court Filings. Griggs v. Duke Power Company Brief for Petitioner, 1970. 573ebcd1-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0c8e2a90-f5f0-4578-b58c-8143054d73c4/griggs-v-duke-power-company-brief-for-petitioner. Accessed November 18, 2025.
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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
MEIIEN PRESS INC. — N. Y. C. 219