Arkansas State Board of Education v. Little Rock School District Joshua Respondents' Brief in Opposition to Certiorari

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I N D E X

Questions presented ...................... ........................

Interest of the United States and the Equal 
Employment Opportunity Commission ........

Statement ........................... ........ ............- ......... —

Summary of argument ......................................—

Argument:

I. The court of appeals correctly held that 
back pay should be awarded to the iden­
tifiable victims of unlawful employ­
ment discrimination here to compensate 
them for their economic injury caused 
by the discrimination ..............................
A. The congressional policy reflected

in Title VII requires that victims 
of employment discrimination be 
awarded back pay in compensation 
for their economic loss unless spe­
cial circumstances would make 
such an award unjust to the em­
ployer .......................................... ......

B. Neither the absence of bad faith
non-compliance nor the tardiness 
of plaintiffs’ back pay claim justi­
fies denying an award of back pay 
to the injured victims of the dis- 
criminatory employment practices 
in this case ..... ............................. .....



II

Argument-—Continued Page
C. Back pay claims should be deter­

mined for all class members who 
have sustained economic loss, 
whether or not they filed individ­
ual charges with the Equal Em­
ployment Opportunity Commis­
sion _________________

i
i

i
31

II. Albemarle’s testing program is unlaw-
ful because its tests operate to exclude 
blacks and have not been shown to bear 
a demonstrable relationship to success­
ful performance of the jobs for which
they are used .............. .. . CO

A. Albemarle’s tests have a dispropor­
tionate adverse impact on blacks ... 35

B. The company’s testing program 
was not shown to be job-related
1. The court of appeals correctly

oCO

looked to the EEOC Guidelines 
for guidance in assessing the 
adequacy of Albemarle’s vali­
dation study .......................

1

38
2. Albemarle’s validation study !

was not conducted in accord- [
ance with professionally accept­
ed standards ............ ............. 41

3. The study does not, in any 
event, demonstrate that the (

i
tests are related to the jobs for 
which they are used

f
46

Conclusion 49



III

CITATIONS
Cases: Page

Baxter v. Savannah Sugar Refining Corp.,
495 F. 2d 437 ............................-........... -  27

Bou'c v. Colgate-Palmolive Co., 416 F. 2d
711  ................................... -----......-........20 ,21 ,31

Carey v. Greyhound Bus Co., 500 F. 2d
1372 ____ .................................- ............-.....  27

Duhon v. Goodyear Tire & Rubber Co.,
494 F. 2d 817 ........ .......... - .......................  42

Franks v. Bowman Transportation Co.,
495 F. 2d 39S, certiorari granted on 
other issues, March 24, 175, No. 74-
728 ...................... .................. -.................... -  31,42

Griggs v. Duke Power Co., 401 U.S. 4 2 4 .1 1 , 14,
28, 34, 36, 
39, 42, 48

Head v. Timken Roller Bearing Co., 486
F. 2d 870 .............. 21, 27, 31

Hccht Co. v. Boivlcs, 321 U.S. 3 2 1 .......12, 19,20
J. I. Case Co. v. Bo rale, 377 U.S. 426 ....  24
Johnson v. Goodyear Tire it Rubber Co.,

491 F. 2d 1364 .......................... . 21, 27, 32, 42
Kober v. Westinghouse Electric Corp.,

480 F. 2d 210 ' .............. .........................  26
Lawn v. United States, 355 U.S. 339__  36
LcBlanc v. Southern Bell Telephone & 

Telegraph Co., 460 F. 2d 1228, certio­
rari denied, 409 U.S. 990 ..................... 26

Louisiana v. United States, 3,80 U.S. 145 24
Maiming v. International Union, 466 F.

2d 812, certiorari denied sub nom. 
Manning v. General Motors Corp., 410
U.S. 946 ............................ ........................ 26

Miller v. international Paper Co., 408 F.
2d 283 ............... ..............—___ ________ 31



rfy, VirtHi

IV

Cases—Continued Page
Mitchell v. Robert DcMcirio Jewelry, Inc.,

301 U.S. 2SS .... ........................................... 12, 19
National Labor Relations Board v. J. II.

Ruttcr-ltcx Mfg. Co., 396 U.S. 258 ....  22, 27
Newman x. Piggie Park Enterprises, Inc.,

390 U.S. 400 .................... ............. 13, 24, 25, 28
Oatis v. Crown Zcllcrbach Corp., 398 F.

2d 496 .......................................................... 31
Pettway  v. American Cast Iron Pipe Co.,

494 F. 2d 211 ......................... ........  21 ,27 ,32
Phelps Dodge Co)~p. v. National Labor

Relations Board, 313 U.S. 177 ............. 12,22
Porter v. Warner Holding Co., 328 U.S.

395 19
Robinson v. Lori Hard Corp., 444 F. 2d

791 ......................................................10, 21, 27, 30
Rogers v. International Paper Co., 9

j CCIIJ EP1) H 9865 ................ .............. 42
Rosen v. Public Service Electric and Gas

Co., 409 F. 2d 775 ...................v....... ......  30
Rosen v. Public Service Electric and Gas

Co., 477 F. 2d 90 ............................ .. 21 ,27
Rowe v. General Motors Corp., 457 F. 2d

348 ............... .............................. ...... ..........  43
Schaeffer v. San Diego Yellow Cabs, Inc.,

462 F. 2d 1002 ‘......................................  26
Sprogis v. United Air  Lines, Inc., 444 F.

2d 1194, certiorari denied, 404 U.S.
991 ............................................... . .2 1 ,2 7

United States v. Burr, 25 Fed. Cas. 30 20
United States v. Georgia Power Co., 474

F. 2d 906 ........................................... 21, 40, 41
United States v. Hayes International

Corp., 456 F. 2d 112 ................................ 30

i



■ .... . ■=... MOST.

V

Cases— Continued Page
United States v. N.L. Industries, Inc.,

479 F. 2d 354 .. .................................  23,27
United States v. St. Louis-San Francisco

Ry. Co., 404 F. 2d 301 .....-.....................  27
Vulcan Socich/ v. Civil Service Commis­

sion, 490 F. 2d 387 ...................... - .......... 15, 4a
Waters v. Wisconsin Steel Works, 502 F.

2d 1309 .............................- .......... - ............ 27
Young v. Edgeomb Steel Co., 499 F. 2d 

97 ‘.............................................    42

Statutes:
Civil Rights Act of 1964, 78 Stat. 253, as

amended, 42 U.S.C. 2000e, et seq...........  2, 3

Section 70G, 42 U.S.C. 2000e-5 ........ 31
Section 706(g), 42 U.S.C. (Supp.

I l l )  2000e-5(g) ................  11, 17, 19, 20,
21,22, 23

Section 713(b), 42 U.S.C. 2000e-12 .
(b) .......................................................  26

Equal Employment Opportunity Act of
1972, 86 Stat. 103   21

National Labor Relations Act, Section 10
(c), 29 U.S.C. 160(c)    22

Miscellaneous:
A PA, Standards for Educational and Psy­

chological 'Pests and Manuals (1966) 39,42,
44

Civil Service Commission Regulations (37
Fed. Reg. 21557-21559) ..................... 40 ,42 ,45



------------- --------------- U. .. ■ ------ »..-.■

VI

Miscellaneous—Continued Page
MS Cong. Rec.:

7166-7169 ....................... 21
7168 ................................. ...... 12, 21, 30, 33
7563-7567     21
7565 ....................................  12, 21, 30; 33

Department of Labor Order:
41 C.F.R. Part 60-3 ..........................  40
41 C.F.R. 60-3.6 .    42

30 Fed. Reg. 14927 ...........................  26
34 Fed. Reg. 13368 ...................   26
Federal Rules of Civil Procedure:

Rule 53 ...................     32
Rule 54(c)     30

Guidelines on Employee Selection Proce­
dures:

29 C.F.R. Part 1607 - 34, 36
29 C.F.R. 1607.4(c) ____    42
29 C.F.R. 1607.4(c)(1) ..............   45
29 C.F.R. 1607 .4(c)(2) ..............  37, 44, 47
29 C.F.R. 1607.5(b)(3) .................  36, 42
29 C.F.R. 1607.5(b)(4) .....................  37

S. Rep. No. 415, 92d Cong., 1st Sess. 33



Un tltr ^uprrmr GJmtrt nf tlir llmtr h ^tatrii
O c t o b e r  T e r m , 1974

No. 74-389

A l b e m a r l e  P a p e r  C o m p a n y , e t  a l ., p e t i t i o n e r s

v.

J o s e p h  P .  M o o d y , e t  a l .

No. 74-428

H a l i f a x  L o c a l  N o . 4 2 5 ,  U n i t e d  P a p e r m a k e r s  
a n d  P a p e r w o r k e r s , AFL-ClO, p e t i t i o n e r

V.

J o s e p h  P .  M o o d y , e t  a l .

OX  117.777? or CERTIORARI TO T1IK EXITED STATES  
COURT o r  ARREARS EOR THE FOURTH CIRCUIT

B R IE F  FOII T H E  U N IT E D  STA TES AND T H E  
EQUAL EM PLOYM ENT O PPO R TU N IT Y  COMMISSION 

AS AMICI CURIAE

( 1 )



—‘•'..I*".1 «»« .,, ■■. rf„„ 

EQUAL EM PLOYM ENT O PPORTUN ITY CO.MMISSION
I

Pursuant to Title VII of the Civil Rights Act of 
10(1-1 and Executive Order 1124G, the Equal Employ- 
ment Opportunity Commission, the Attorney Gen­
eral, and other branches of the federal government 
have responsibility for enforcement of federal laws 
providing for equal employment opportunities. Al­
though this case was brought by private plaintiffs, 
the issues concerning back pay and testing raised 
here are similar to issues that arise in suits brought 
by the government. The resolution of the issues 
presented in this case will directly affect the govern­
ment’s enforcement responsibilities.

2

Q U ESTION S PR E S E N T E D

1. Whether a district court, in determining 
whether to award hack pay to members of an iden­
tifiable class of persons who have suffered economic 
injury because of racially discriminatory employment 
practices in violation of Title VII of the Civil Rights 
Act of 1961, must exercise its discretion in a manner 
consistent with the remedial purposes of the Act.

2. Whether petitioner Albemarle’s employment 
selection tests are unlawful because they have a dis­
proportionate adverse impact on blacks and have not 
been shown to be substantially job-related.

ST A T E M E N T

1. On August 25, 19GG, respondents, after they 
had received a right-to-sue letter from the Equal



. .  . - ■--..-...~

Employment Opportunity Commission, filed a class 
action1 against their employer, Albemarle Paper 
Company (petitioner in No. 71-389), and their union, 
Halifax Local No. 425 (petitioner in No. 74-428),y 
alleging that the defendants were engaged in racially 
discriminatory employment practices in violation of 
Title VII of the Civil Rights Act of 1964, as amended, 
42 U.S.C. 2000e, et scq. The complaint sought a 
permanent injunction against those practices and 
prayed for “such other additional relief as may ap­
pear to the Court to be equitable and just” (A. 10).

The alleged discriminatory employment practices 
took place at Albemarle’s paper mill in Roanoke 
Rapids, North Carolina. The principal business of 
the paper mill is the production of kraft paper, pulp,

1 The district court defined the classes represented by re­
spondents as “ (1) all Negroes employed a t  the Iloanokc 
Rapids plant of Albemarle Paper  Company as of June  30, 
19G7; (2) all Negroes employed a t  said plant a f te r  June  30, 
19G7, except those whose initial perm anent positions were not 
job classifications limited to  or predominantly staffed by 
Negroes; and (3) all Negroes who may hereafte r  apply for or 
be cmplovod a t  said Roanoke Rapids plant who may be affected 
by the alleged racially discrim inatory employment practices 
of the defendants” (A. 47-1).

3 The original three defendants were Albemarle P ape r  Com­
pany (V irg in ia), the  United Paperm akers and Paperw orkers, 
and Paperm akers Halifax-Local 42r>. The international union 
was subsequently dismissed as a defendant (A. 1G-20). In 
1968, the company’s assets were sold and t ran sfe rred  in a 
series of transactions. As a result. Albemarle Paper  Company 
(Delaw are), Hoerner W aldorf Corporation, Lthyl Coipoia- 
tion, and F irs t  Alpaco Corporation were joined as defendants 
(A. 30-39).



MtMMkMuta a t ...ii-------——

i

I
|

4

and allied products (A. SS). The mill has 11 func­
tionally discrete departments (A. 477, 511), and each 
department has one or more functionally related lines 
of progression consisting of several job categories (A. 
88, 477). The mill has 17 lines of progression and 
more than 100 job classifications (A. 477, 514). In 
all but exceptional circumstances, employees enter 
a line of progression at the lowest paying job, and 
vacancies are filled by promotions from within each 
line of progression on the basis of seniority and 
ability (A. 477).

In addition to the lines of progression, the mill, 
prior to 19G8, had two “extra boards”— reservoirs 
of employees who were available to staff the lowest- 
level jobs in the lines of progression. The General 
Extra Board supplemented the skilled lines of pro­
gression; the Utility Extra Board supplemented the 
unskilled lines of progression (A. 485). The extra 
boards were staffed by new employees and employees 
who had been laid off from other jobs and were await­
ing recall (ibid.). In 19G8, the two extra boards 
were merged (A. 48G).

Promotions and demotions in the plant are gov­
erned by job seniority. When a vacancy occurs, the 
first opportunity to fill it is ordinarily given to the 
employee in the next lowest job category within the 
line of progression who has the greatest seniority in 
that job, if he possesses the necessary ability, ex­
perience, and training (A. 477-478).

Albemarle uses personnel tests in selecting appli­
cants for employment in certain jobs. Since 19G3,

i
i
i-•A
iri
1

i



• *■*
*,*•

 ■■

- 4
on *** > ffirtitiiivagBSw* -

j  i

I

applicants for 13 lines of progression in eight depart­
ments ' have generally been required to have a high 
school education and to score successfully on the 
Revised Beta Examination—a nonverbal test devel­
oped during World War I to measure the intelli­
gence of illiterate and non-English-speaking persons 
— and the Wonderlic A or B Series examinations—  
short, verbal tests used to measure general mental 
ability (A. 100-101, 487-48S, 514).

2. After a trial, the district court found that 
“ [pjrior to January 1, 1964, Albemarle’s lines of 
progression were strictly segregated on the basis of 
race” (A. 480). Approximately 86 of the 100 jobs 
at the plant were “traditionally reserved for white 
persons” (A. 477). The court found that “ [tjhose 
lines of progression to which black employees were 
traditionally assigned were lower paying than the 
‘white’ lines of progression” and that “ [tjhe racial 
identifiability of jobs and departments in lines of 
progression were maintained subsequent to the effec­
tive date of Title VII (July 2, 1965)” (A. 480). The 
extra boards were also segregated on the basis of 
race. As of June 1967, there were 62 white and two

* These figures were derived by the d istr ic t  court and the 
court of appeals from a stipulation filed on July 25, 1971 (A. 
86-106). A Hough the court of appeals stated th a t  examinations 
a re  required for employment in U  lines of progression (A. 
5 1 4 ), both the stipulation and the d istrict court’s opinion 
indicate th a t  13 is the correct number. Albemarle s ta tes  (Hr. 
13) that ,  as a result of changes in mill operations, the tests 
w ere administered, by the time of trial, to applicants for only 
e ight lines of progression in four departments.

1



-S '*
lAkUU

• riia.,

black employees assigned to the General Extra Board; 
no whites and 50 blacks were assigned to the Utility 
Extra Board (A. 484-485).

Although a 196S collective bargaining agreement 
effected some “changes in the lines of progression 
[that] had the effect of eliminating, to some extent, 
their strictly segregated composition,” “black em­
ployees were still ‘locked’ in the lower paying job 
classifications” (A. 485). Similarly, while the two 
extra boards were merged in 1968, “[ejmployees on 
the merged board still retain recall rights to jobs 
and lines of progression which they held prior to 
being reduced to the call board,” so that “black- 
employees are recalled to black jobs and white em­
ployees are recalled to white jobs” (A. 486).

The court concluded that “Albemarle practiced 
racially discriminatory employment practice] s | prior 
to July 2, 1965,” and that “the effects of this dis­
ci imination has [«v/c] been perpetuated” (A. 495- 
496). The court stated (A. 496):

Although o\ ert racial discrimination ceased sub­
sequent to the effective date of Title VII, the 
eflects of this racial discrimination have not been 
eradicated. The job seniority system has re­
sulted in blacks occupying the lower paying 
positions \\ ithin an integrated line of progres­
sion. Other lines of progression remain essen­
tially segregated because of the inability of 
black employees to meet the educational 'and  
testing requirements to transfer into other, high­
er paying lines of progression.



****»«>*»*►___ ------------- ---------

The court ordered the defendants “to abolish the ex­
isting seniority system based substantially on job 
seniority” and “to implement and permanently con­
tinue a system of plant seniority * * * so that * * * 
when employees of the affected class are competing 
with employees not of the affected class, and the 
qualifications of the competitors are relatively equal, 
plant seniority rather than job seniority shall gov­
ern” (A. 499-500).

The district court declined to award back pay to 
members of the class who had suffered economic in­
jury as a result of the discriminatory employment 
practices that locked them into the lower paying 
jobs to which they had l>een assigned on the basis 
of race. The court rested its denial of back pay on 
two considerations. First, “there was no evidence 
of bad faith non-compliance with the Act” (A. 498).4 
Second, the plaintiffs did not specifically seek back 
pay in their complaint5 and did not assert a back 
pay claim until “nearly five years after the institu­
tion of this action” ( ib id ) .  “ |T]he defendants

* The court stated th a t  Albemarle hud bepun in 1964 to re­
cru it  blacks for its Maintenance Apprentice Propram , th a t  it  
merped some lines of propression on its o\\ n initiative and 
took certain steps to correct abuses in accordance with de- 
velopinp judicial in terpreta tions of the Act, and th a t  it  paid 
higher wapes for all levels of employment than did o ther in­
dustries in the  a rea  (A. 498).

'  In their memorandum in opposition to a motion for sum­
m ary  judpmont, plaintilTs stated that  ” [n ]o  money damapes 
a re  soupht for any member of the chuss not before the court” 
(A. 13-14).



;-f Hi ■•Hi mil. ------ • * - ,

8

would ho substantially prejudiced by the granting of 
such allinnative relief,” the court stated, because they 
_ m^ ' t  have chosen to exercise unusual zeal in hav­
ing this court determine their rights at an earlier 
date had they known that back pay would be at issue” 
(ibid.).

Ihe court also rejected respondents’ contention 
that Albemarle’s testing reciuirements are unlawful 
because they have a disproportionate adverse impact 
on blacks and were not shown to be related to job 
performance. It concluded that “ftjhe personnel tests 
administered at the plant have undergone validation 
studies and have been proven to be job related” (A 
497).

The \ alidation study conducted by Albemarle cov­
ered 10 job groups in 8 of the 18 lines of progression 
for which the tests are required (A. 511). Albe­
marle’s expert conducted no job analysis of the jobs 
co\eied by the study. 1 Ih e  sample of employees 
tested for the study were selected from the top. and 
middle ranges of the lines of progression (A. 490). 
Their scores on each of the three tests use by Albe­
marle— Beta, Wonderlic A, and Wonderlie B— were 
compared with job performance ratings assigned to 
them by two supervisors, who rated them according 
t° this standard: “Excluding a man’s attitude, just 
how well the guy can do the job when he’s feeling 
right” (A. 19o, 511-515). The study found “ [s|ig-

"T he  expert spent only about a half day at the p lant (A. 
171). lie had no written job descriptions (ihitf.) and did not 
speak with any supervisors while he was a t the mill (A. 175).



...... . .u.i&l^ i*?***”*********"

9

nificant correlations * * * for at least, one of the three 
tests investigated for nine of the ten groups of jobs 
(A. 431). The use of all three tests was found valid 
only for one of the 10 job groups, and the use of the 
Beta together with either Wonderlic A or Wonderlic 
B— the use made of the tests by Albemarle was 
found valid only for two of the 10 job groups (A. 
432).

On the basis of that validation study, the district 
court found that “ [tjhe defendants have carried the 
burden of proof” in demonstrating the job-related­
ness of the company’s testing program (A. 497). The 
court found, however, that “the high school education 
requirement used in conjunction with the testing re­
quirements is unlawful in that the personnel tests 
alone arc adequate to measure the mental ability and 
reading skills required for the job classifications” 
(A. 497). It accordingly enjoined Albemarle from 
“requiring a high school education as a prerequisite 
for employment, promotion or transfer” (A. 502).

3. The court of appeals reversed with respect to 
the back pay and testing issues (A. 512-537).*

On the back pay issue, the court held that neither 
plaintiffs’ delay in making a claim for back pay nor 
the lack of evidence of bad faith noncompliance with

’ All applicants a rc  given the Net a examination and both 
series of the Wonderlic test. They are  required to score 
satisfactorily both on the be ta  and on either the Wonderlic 
A or the Wonderlic H (A. 220).

* Petitioners did not appeal any aspect of the d istrict 
court’s order.



10

the Act “is sufficient to justify the district court’s 
refusal to award back pay” (A. 520). Relying on 
its 1 eject ion of similiar contentions in Robinson v. 
Lorillard Corp., 4-14 F. 2d 701, the court of appeals 
reasoned that Albemarle was not substantially preju­
diced by the plaintiffs delay in seeking back pay and 
that a showing of bad faith is not required for an 
aw aid of back pay, because the award is designed 
not to penalize the employer but to compensate the 
victims of the discrimination for their tangible eco­
nomic loss.

The court rejected the contention that the denial 
of back pay should nevertheless be sustained as 
within the discretion of the district court. “Where 
a district court fails to exercise discretion with an 
eye to the purposes of the Act. it must be reversed” 
(A. 52.3). The court stated that, in view of “the 
compensatory nature of a back pay award and the
strong congressional policy embodied in Title VII”__
which favors making the victims of the unlawful
discrimination economically whole so far as possible__
“a plaintiff or a complaining class who is successful 
in obtaining an injunction under Title VII of the 
Act should ordinarily be awarded back pay unless 
special circumstances would render such an award 
unjust” (A. 52.3-521). It held that “there are no such 
special circumstances here” (A. 524).

With respect to testing, the court stated: “The 
effect of the district court’s approval of Albemarle’s 
testing procedure is to approve a validation study 
done without job analysis, to allow Albemarle to



11

require tests for 6 lines of progression where there 
has been no validation study at all, and to allow 
Albemarle to require a person to pass two tests for 
entrance into 7 lines of progression when only one 
of those tests was validated for that line of progres­
sion. We think this was error” (A. 515). The court 
concluded that the tests were not shown to have 
“a manifest relationship” to the jobs for which they 
are used by Albemarle (A. 516). Since “ [t]he plain­
tiffs made a sufficient showing below that Albemarle’s 
testing procedures have a racial impact (A. o lo ) ,  
and since Albemarle failed to showr that the tests are 
substantially job related, it followed under Grifjgs v. 
Duke Power Co., 401 U.S. 424, that the testing pro­
cedure is unlawful.®

SUMMARY OF ARGUM ENT

I

A. When a district court finds that an employer 
or a labor union has intentionally engaged in unlaw­
ful employment practices, it may enjoin those prac­
tices and may “order such affirmative action as may 
be appropriate, which may include * reinstate­
ment or hiring of employees, with or without back 
pay” (42 U.S.C. (Supp. I l l)  2000e-5(g)). The 
court’s discretion with respect to back pay awards 
must, however, be exercised in accordance with the

• Judjre Foreman dissented on the testing issue (A. 524- 
532), and Ju d se  Bryan dissented on the back pay issue (A. 
532-527).



12

large objectives of the Act” ( JI edit Co. v. Bowles, 
321 U.S. 321, 331), for it is the duty of a court of 
equity “to provide complete relief in light of the 
statutory purposes” {Mitchell v. Robert DcMario 
Jewelry, Inc., 361 U.S. 288, 292).

The objectives of Title VII are to eliminate dis­
criminatory employment practices and, so far as pos­
sible, to compensate the victims of employment dis­
crimination for their economic loss caused by the 
discrimination. The district court’s duty “to fashion 
the most complete relief possible” (see 118 Cong. Rec. 
7108, 7505) upon a finding of employment discrim­
ination ordinarily means that it must both enjoin 
the unlawful practices and award back pay to the 
injured victims. “Only thus can there be a restora­
tion of the situation, as nearly as possible, to that 
which would have obtained but for the illegal discrim­
ination” {Phelps Dodge Corp. v. National Labor Re­
lations Board, 313 U.S. 177, 194). Moreover, the 
reasonably certain prospect that back pay will be 
awarded provides an important economic incentive 
for employers and unions to comply voluntarily with 
the provisions of Title VII and thereby to bring a 
prompt end to employment discrimination.

It follows that the Act’s policies of making the 
victims whole and deterring future discrimination re­
quire back pay to be awarded to the injured em­
ployees unless, for substantial reasons that are con­
sistent with the Act’s purposes, awarding back pay 
would be unjust to the employer or the union. That is 
the standard that the court of appeals applied here



13

and that this Court applied with respect to awards 
of counsel fees under Title II of the Act in Newman 
v. Pi;,fiic Pari: Enterprises, hie., 300 U.S. -100, 402.

B. The district court’s reasons for denying back 
pay in this case do not satisfy that standard. Since 
the remedial purpose of Title VII is to compensate 
the injured victims of employment discrimination and 
not to punish the employer, the absence of “bad faith 
non-compliance” (A. 408) does not justify denying 
back pay. A requirement that injured employees 
prove malice or deliberate recalcitrance would be 
an unwarranted obstacle to effective relief and would 
weaken the incentive for voluntary compliance by 
making back pay awards depend upon the applica­
tion of an uncertain, subjective standard. This Court 
rejected a similar standard for the award of counsel 
fees in Newman v. Pif/fji.e Park Enterprises, Inc., 
supra, and it should reject it here as well.

Nor was the plaintiffs’ delay in asserting a back 
pay claim on behalf of the entire class of injured 
employees a proper basis for denying back pay. The 
defendants were aware of that claim at least one 
year prior to trial, and their defenses to the claim 
were identical to their defenses with respect to in­
junctive relief. There is no foundation foi the dis­
trict court’s speculation that the defendants “might 
have chosen to exercise unusual zeal” (A. 498) in 
expediting a trial if they had known of the back pay 
claim earlier, nor is there any support for petitioners’ 
assertion that discovery was made more difficult by 
plaintiffs’ delay. In the absence of a showing of sub-



14

stantial prejudice, that delay did not affect the dis­
trict court’s duty to award complete relief.

C. Back pay relief is not limited to those mem­
bers of the class who have filed individual charges 
with EEOC. The filing of a single charge alleging 
unlawful employment practices fully satisfies the pur­
poses of Title VII’s filing requirement by putting 
the employer on notice of the charge and invoking 
EEOC s conciliation functions. There is no reason 
to require the filing of numerous identical claims. 
Congress considered and rejected precisely such a 
requirement when it enacted the 1972 amendments 
to Title VII.

I I

A. That Albemarle’s tests operate disproportion­
ately to exclude blacks was implicit in the district 
court’s lengthy discussion concerning the job-related- 
ness of the tests and was the subject of an explicit 
finding by the court of appeals (A. 515). Albemarle 
aigues that the plaintiffs failed to make an adequate 
show ing that the tests have a racially disparate im­
pact, but that issue was not presented in the pe- 
tition for a writ of certiorari and is not properly 
bcfoie this Court. In any event, the record supports 
the court of appeals’ finding.

B. I he court of appeals correctly concluded that 
Albemaile did not carry its burden of showing that 
its present use of the tests “have a manifest rela­
tionship to the employment in question” (Griggs v. 
Duke Power Co., 401 U.S. 424, 432). In making



__ _

15

that determination, the court of appeals properly 
looked to the EEOC Guidelines as “a helpful sum­
mary of professional testing standards” (Vulcan So- 
cieltj v. Ciril Service Commission, '190 F. 2d 287, 
394, n. 8 (C.A. 2 ))  and made proper use of the 
Guidelines in assessing the adequacy of Albemarle’s 
test validation study.

In a Title VII case within the scope of EEOC’s 
enforcement jurisdiction, it is particularly appropri­
ate for a court to rely upon the professional ex­
pertise reflected in the Guidelines. And where, as 
here, the pertinent sections of the Guidelines ac­
curately summarize the professionally accepted stand­
ards for test validation and no showing is made that 
there are significant deferences of opinion within the 
profession, an employer whose validation study de­
parts from the Guidelines should bear the heavy bur­
den of showing that the departure was justified and 
that the study was nevertheless adequate to prove 
that the tests are job-related.

Albemarle’s study was not conducted in accord­
ance with the Guidelines, and the company neither 
justified the departure nor demonstrated that the 
study was otherwise adequate. Albemarle’s expert 
failed to conduct a job analysis to determine the skills 
and abilities required for successful performance of 
the jobs he studied; under generally recognized pro­
fessional standards, a job analysis is an essential 
first step in a proper employment test validation 
study. Its absence in Alliemarlc’s study made it nec-



16

essaiy to rely on a vague, subjective standard for 
supervisory ratings of employees and made it impos­
sible to tell whether the abilities rated by the super­
visors and measured by the tests are the ones that 
are necessary to perform the jobs at the mill.

The study also departed lrom professional stand­
ards because Albemarle’s expert did not take precau­
tions to ensure that the tests were administered under 
controlled and standardized conditions and that the 
raters were kept unaware of the employees’ test 
scores. Moreover, the jobs studied were at the higher 
le\els in the plant, although applicants for employ­
ment naturally begin work at the lower levels. Al­
bemarle did not show that it was reasonable to 
validate the tests for the jobs studied rather than 
those that a new employee would perform.

Even if the study had been conducted properly, 
however, its results do not show that the tests are 
related to the jobs for which they are used. The 
study covered only eight of the 13 lines of progres­
sion for which tests are required, and it found cor­
relations supporting Albemarle’s present use of the 
tests for only two of the 10 job groups studied. Al­
bemarle s claim that it is ncccssaiy to ensure that 
all applicants are qualified for each line of progres­
sion in the plant is not supported by the record.



ARGUM ENT
■I

T H E  COURT OF A P PE A L S CORRECTLY IIELI)
T H A T  RACK PAY SHOULD RE AW ARDED TO 
T H E  1D E N TIFIA R L E VICTIMS OF U N LA W FU L 
EM PLO YM EN T D ISCRIM IN ATION H E R E  TO COM­
PE N S A T E  TH EM  FOR T H E IR  ECONOMIC IN JU R Y  
CAUSED 15Y T H E  DISCRIM IN ATION

The district court found that petitioners engaged 
in unlawful discriminatory employment practices that 
confined the black employees at Albemarle’s paper 
mill to the lower paying, less desirable jobs to which 
they had been assigned on the basis of their race (A.
480-486, 496). The court was therefore authorized 
under Section 706(g) of the Act, 42 U.S.C. (Supp.
I l l)  2000e-5(g), to enjoin the unlawful practices 
and to “order such affirmative action as may be ap­
propriate, which may include * * * reinstatement or 
hiring of employees, with or without back pay * *
Although the victims of petitioners’ racially discrim­
inatory practices suffered tangible economic loss as 
a result of the discrimination, the district court re­
fused to award them compensatory back pay because 
it found “no evidence of bad faith non-compliance 
with the Act” and because respondents’ initial fail­
ure specifically to request back pay on behalf of the 
class they represent may have induced petitioners not 
to exercise “unusual zeal in having this court deter­
mine their rights at an earlier date” (A. 49S).

The court of appeals held that the district court’s 
denial of back pay for those reasons was not a proper

t



18

exercise of its discretion under the Act. That discre­
tion, the court stated, must be exercised “with an eye 
to the purposes of the Act” (A. 523) and in a way 
that gives the fullest possible effect, consistent with 
fairness, to the congressional policy of making whole 
the victims of employment discrimination.

Petitioners contend (Albemarle Br. 50-61; Halifax 
Br. 21-33) that the court of appeals unduly restricted 
the scope of the district court’s statutory discretion 
in determining whether to award back pay and that 
the district court’s refusal to award back pay in this 
case should have been sustained under “traditional 
equitable principles” (Albemarle Br. 53). Albemarle 
also argues (Br. 01-66) that back pay may not, in 
any event, be awarded to individual members of the 
affected class of injured employees who have not 
themselves fded charges with the Equal Employment 
Opportunity Commission. In our view, petitioners are 
wrong on both counts.

A. The Congressional Policy Reflected In Title  VII 
Requires That Victims Of Employment Discrimina­
tion l>e Awarded Rack Ray In Compensation For 
Their  Economic Loss Unless Special Circumstances 
Would Make Such An Award U n jus t  To The Em ­
ployer

The issue here is not whether the district courts 
have discretion to award or withhold back pay, for 
the Act clearly commits that decision to the sound 
discretion of the trial judge. Nor is the issue wheth­
er that discretion “is governed by traditional equi­
table principles” (Albemarle Br. 53); Congress in-



__:.....aafcasa l...

10

tended in Section 706(g) to invest the courts with 
full, traditional equity jurisdiction to fashion effec­
tive relief upon a finding of unlawful employment 
practices. Cf. Porter v. ir«r«cr Holding Co., 328 
U.S. 395, 398, 400; Mitchell v. Robert DeMario 
Jewelry, Inc., 361 U.S. 2SS, 291-292.

The issue, rather, is the extent to which the district 
courts’ exercise of discretion under the Act is cir­
cumscribed by, and must be responsive to, the legis­
lative objectives of Title VII. It is settled, of course, 
that traditional equity jurisdiction does not empower 
a court to take whatever action it wishes. Discre­
tion must be exercised according to appropriate 
standards. In the enforcement of a statutory scheme, 
the courts must exercise their discretion “in light of 
the large objectives of the Act” ; their discretionary 
remedial determinations must “reflect an acute 
awareness” of the congressional policy (Hccht Co. v. 
Bowles, 321 U.S. 321, 331). It is “the historic power 
of equity to provide complete relief in light of the 
statutory pui*poses” (Mitchell v. Robert DeMario 
Jewelry, Inc., supra, 361 U.S. at 292).

Albemarle thus properly concedes that a district 
court’s discretion under Section 706(g) of the Civil 
Rights Act of 1961 “must be exercised consistently 
with legislative objectives” (Br. 53). It seeks to avoid 
the thrust of that principle, however, by arguing 
that the legislative objective was “to leave resolution 
of complex remedial problems to the traditional, dis­
cretionary powers of the federal courts of equity” 
(Br. 54).



.—MM.

20

But that argument begs the question. It merely 
restates a proposition that no one disputes— that the 
district courts have discretion in determining whether 
to award back pay. As Chief Justice Marshall stated 
long ago, to say that the matter is within a court’s 
discretion means that it is addressed not to the 
courts ‘inclination, but to its judgment; and its 
judgment is to be guided by sound legal principles” 
{United Stales v. Burr, 25 Fed. Cas. 30, 35). The 
proper inquiry is this: what are “the large objec­
tives of the Act” (IIecht Co. v. Bowles, supra, 321 
U.S. at 331) in accordance with which that discre­
tion must be exercised?

The large objectives of Title VII are to eliminate 
discriminatory employment practices and, as far as 
possible, to restore the victims of employment dis­
crimination to the situation they would have been 
in but for the discrimination. “The clear purpose of 
Title VII is to bring an end to the proscribed dis­
criminatory practices and to make whole, in a pecu­
niary fashion, those who have suffered by it” (Bowc 
v. Colgate-Palmolive Co., 41G F. 2d 711, 720 (C.A.
• ) ) •

Albemarle’s contention that “the Congressional em­
phasis was on the prospective elimination of discrim­
inatory practices and not on reparations” (Br. 54) 
rests on its inference from the word “may” in the 
statutory phrase “may include * * * reinstatement 
or hiring of employees, with or without back pay” 
(Section 7 0 0 (g )). But that inference is unjustified. 
The same word is used in connection with injunctive



21

relief: ‘‘the court may  enjoin the respondent from 
engaging in such unlawful practice” (emphasis add­
ed). Every court of appeals that has considered the 
question has correctly concluded that the Act’s pur­
poses are both to eliminate employment discrimina­
tion and to compensate the victims.’"

The “make whole” purpose of Title VII is con­
firmed by the legislative history of the Equal Em­
ployment Opportunity Act of 19/2, 86 Stat. 10o, 
which reenacted Section 706(g) with changes not 
relevant here. The Scction-by-Section Analysis of the 
1972 Act, presented to the House and the Senate at 
the time the Conference Report on the Act was sub­
mitted to each body (11.8 Cong. Rec. 7166-7169, 7563- 
7567), states with respect to Section 706(g) (id. at 
7168, 7565; emphasis added):

The provisions of this subsection are intended 
to give the courts wide discretion exercising 
their equitable powers to fashion the most com­
plete relief possible. In dealing with the present 
section 706(g) the courts have stressed that the 
scope of relief under that section of the Act is 
intended to make the victims of unlawful dis-

io gee, e.fi., Rosen V. Public Service Electric and Gits Co., 
A l l  F. 2d 00, 00 (C.A. :’*): Robinson V. Lurilhtrd Corji., AAA 
F. 2d 701, 801 (C.A. -1); P ct tw an  V. American Cast Iron Pii>c 
Co 401 F. 2d 211, 272 (C.A. r>); Johnson V. Good near Tire  
tC- Rubber  Co., 101 F. 2d i:i«4, 1:17.". (C.A. .7); United States  
V. Geori/ia Power  Co.. 47 1 F. 2d 000, 021 (C.A. 5 ); Head  V. 
Timken Roller Rcarinp Co., 480 F. 2d 870, 870 (C.A. 0); 
H our  V. Colfintc-Palmolicc Co., supra,  110 F. 2d at (20: 
S  prop is V. United A i r  R ims ,  Inc., 141 F. 2d 1101, 1202 (C.A. 
7 ), certiorari denied, 404 U.S. 001.



22

crimination whole, and that the attainment of 
this objective rests not only upon the elimination 
of the particular unlawful employment practice 
complained of, but also requires that, persons 
aggrieved by the consequences and effects of the 
unlawful employment practice be, so far  as pos­
sible, restored to a position where they would 
have been were it not for the unlawful discrimi­
nation.

Injunctive relief serves the purpose of eliminating 
the discriminatory practices prospectively. An award 
of back pay serves the purpose of making the victims 
financially whole. In view of the Act’s objectives, the 
district court’s duty “to fashion the most complete 
relief possible” (ibid.) ordinarily means that it must 
both enjoin the unlawful practices and award back 
pay to those who have sulfered financial injury as 
a consequence of the discrimination. As this Court 
said with respect to back pay awards under Section 
10(c) of the National Labor Relations Act, which 
was the model for Section 706(g) of the Civil Rights 
Act of 1064, “compensation for the loss of wages” 
is “generally require[dj” to effectuate the policies of 
that Act, because “ [o]nly thus can there be a restora­
tion of the situation, as nearly as possible, to that 
which would have obtained but for the illegal dis­
crimination” (Phelps Dodge Carp. v. National Labor 
Delations Hoard, 3.13 U.S. 177, 101). See also Na­
tional Labor Relations Hoard v. J. H. Rutter-Rex 
Mfg.  Co., 306 U.S. 258, 263.

Moreover, compelling practical considerations sup­
port the view that back pay should normally be



awarded to redress proven injuries. The reasonably 
certain prospect that back pay will be awarded pro­
vides the only substantial economic incentive to en­
courage voluntary compliance with Title VII and 
therefore a sw ift end to unlawful employment dis­
crimination. Back pay awards “provide the spur or 
catalyst which causes employers and unions to self- 

| | examine and to self-evaluate their employment prac­
tices and to endeavor to eliminate, so far as possible,

' the last vestiges of an unfortunate and ignominious
page in this country’s history” ( United States v. 
N.L. Industries, Inc., 479 F. 2d 354, 379 (C.A. S )) .

An employer or union is less likely to make a seri­
ous attempt to eliminate discriminatory practices or 
practices that perpetuate the effects of past discrimi­
nation if it can reasonably anticipate a court order 
after lengthy litigation that merely requires it to do 
what it should have done in the first place. Indeed, 
with respect to changes in practices that would re­
quire the expenditure of money, the absence of back 
pay as a usual element of relief under Section 706 
(g) could provide a financial incentive to an employer 
or union to maintain the unlawful status quo as long 

' as possible.
It follows that, in the exercise of their discretion 

to effectuate the Act’s purposes and to encourage 
prompt, voluntary compliance with its terms, the dis­
trict courts should ordinarily award back pay to the 
identifiable victims of unlawful employment discrim­
ination. unless there are substantial countervailing 
considerations that make such an award unnecessary



or inappropriate. In the court of appeals’ words, the 
injured victims of the discrimination “should ordi­
narily be awarded back pay unless special circum­
stances would render such an award unjust” (A. 523- 
524).

That standard neither forecloses nor unduly re­
stricts a district court’s exercise of discretion. Courts 
of equity always have “the duty * * * to be alert to 
provide such remedies as are necessary to make ef­
fective the congressional purpose” (J.I. Case Co. v. 
Borah, 377 U.S. 426, 433). And in the enforcement 
of the civil rights statutes, “the court has not merely 
the power but the duty to render a decree which will 
so far as possible eliminate the discriminatory effects 
of the past as well as bar like discrimination in the 
future” (Louisiana v. United States, 380 U.S. 145, 
154).

The standard adopted by the court of appeals here 
is identical to the one that this Court applied to the 
exercise of a district court’s discretion to award at­
torney’s fees under Title II of the Act. Newman v. 
Pifj(/ic Bark Enterprises, Ine., 390 U.S. 400. The 
court of appeals there had ruled that counsel foes 
should be awarded only to the extent that a party 
advances defenses in bad faith and for purposes of 
delay. This Court held that that standard would not 
adequately effectuate the purposes of the counsel-fee 
provision of Title II. That provision was enacted 
“not simply to penalize litigants who deliberately 
advance arguments they know to be untenable but, 
more broadly, to encourage individuals injured by



-...--------------- •----ii.iir

26

racial discrimination to seek judicial relief under 
Title II” (390 U.S. at 402). Since private litiga­
tion is an essential “means of securing broad com­
pliance with [Title 11J” (-id. at 401), and since a 
plaintiff suing as a “private attorney general” can­
not recover damages, awards of counsel fees are im­
portant to “vind icate] a policy that Congress con­
sidered of the highest priority” (id. at 402).

The situation here is analogous. While this case 
involves Title VII rather than Title II and back pay 
awards rather than attorney’s fees, the effect of 
awarding back pay in the absence of special circum­
stances similarly vindicates the broad congressional 
policy reflected in the Act and similarly ensures com­
pliance with the law. The “special circumstances” 
standard is no less an appropriate guide for the exer­
cise of discretion in awarding back pay under Title 
VII than it is for the exercise of discretion in award­
ing counsel fees under Title II.

We do not suggest, nor did the court of appeals 
hold, that back pay is mechanically compelled where 
violations of the Act are found. Nor do we suggest 
that courts of appeals should lightly overturn the 
informed exercise of a district court’s discretion. 
Where unlawful employment practices result in eco­
nomic loss to identifiable persons, however, the “make 
whole” purpose of Title VII, and the important policy 
of encouraging voluntary compliance with the law, 
should normally call for compensation, in the absence 
of substantial countervailing considerations. The dis­
trict court must articulate its reasons for denying



26

Dack pay, and those reasons should be carefully 
scrutinized by the appellate courts to ensure that the 
district court has fashioned the fullest possible re­
lief consistent with fairness.
_ As 've understand the application of the “special 

circumstances” standard to the question of back pay, 
the Act’s policies of making the victims whole and 
deterring future discrimination require back pay to 
be awarded unless, for substantial reasons that are
consistent with the purposes of the Act, awarding 
back pay would be unjust to the employer. One such 
special circumstance, in the context of employment 
practices that discriminate on the basis of sex, might 
be the employer’s reasonable and good-faith reliance 
upon state female “protective” statutes. See LeBlanc 
v. Soul/tern Bell Telephone S: Telegraph Co., 4G0 F.
2d 3228 (C.A. 5 ), certiorari denied, 409 U.S. 990; 
Manning v. International Union, 466 F. 2d 812 (C.A. 
G), certiorari denied sub nom. Manning v. General 
Motors Carp., 410 U.S. 946; Kobcr v. Westing house 
Electric Corp., 480 F. 2d 240 (C.A. 3 ); but see 
Schaeffer v. San Diego Yellow Cabs, Inc., 462 F. 2d 
1002 (C.A. 9)." As we shall now show, no such spe­
cial circumstance justified the district court’s denial 
of back pay in the present case.

” Fnclcr LhOC. interpretive guidelines in effect from 10do 
through August 1000, such state  protective laws were con- 
sidei ed consistent with I itle \  II. Compare 00 Fed. Peg 1 10°7 
with III fed .  Keg. lk.'IOS. Reliance on a published EEOC
guideline is a defense to liability under Title VII Cl*> TI r  
2000c-12(b)). ' v -  u .o .^ .



_ _ . „ _____ •■iiMfwitaiifiiiMwiiiMteS.aai

27
R. N either The Absence Of Rad F aith  Non-Com pliance 

N or The T ard iness  Of P la in tiffs’ Rack P ay  Claim  
Justifies  Denying An Award Of Rack P ay  To 'lh e  
In ju red  Victims Of The D iscrim inatory  Em ploy­
m ent P ractices In T h is Case

Since the purpose of a back pay award is to com­
pensate the injured persons and not to punish the 
employer, the absence of bad faith should not or­
dinarily justify denying back pay. As between the 
innocent victim of an unlawful employment practice 
and the employer or union that has violated the law, 
the economic loss should normally fall on the wrong­
doer. Cf. National Labor Relations Hoard v. J. H. 
Rnttcr-Rc.v Mf<j. Co., supra, 206 U.S. at 26-1-265. 
Accordingly, the courts of appeals have uniformly 
rejected general claims of good faith as a reason to 
deny back pay under Title VII.1'

To make back pay awards dependent upon proof 
of malice or deliberate recalcitrance would place an 
unwarranted obstacle in the path, of those seeking 
compensation for economic injury resulting from un-

12 See, e.g., P ettw ay  V. Am erican Cast Iron Pipe Co., supra, 
401 F. 2d a t 253; Head V. Tim ken Roller Bearing Co., supra, 
•180 F. 2d at 877; Sgrogis  V. United A irlines, Inc., supra, 444 
F. 2d a t 1201; lFrrfrr.s v. W isconsin Steel W orks, 002 F. 2d 
1000, 1021 (C.A. 7 ) ;  B axter  V. Savannah Sugar Refining  
C.orp., 405 F. 2d 437, 442-443 (C.A. 5 ); Robinson V. Lorillard  
Carp.', supra, 444 F. 2d at. 804; Rosen V. Public Service Electric  
and Gas Co., supra. M l  V. 2d at 05-00; Carey  V. Grey­
hound Bus Co., 500 F. 2d 1372, 1378-1370 (C.A. 5 ) ; Johnson 
V. Good year Tire S: Rubber (■<>., supra, -101 I'. 2d a t 13G.>-1.»G7. 
Com pare United S to tts  V. S t. Louis-San Francisco R y. Co., 
4G1 F. 2d 301, 311 (C.A. 8 ) , with flic same court’s subsequent 
decision in  United S ta tes  V. S’.L. Industries, Inc., supra, 470 
F. 2d a t  378-379.



28
lawful employment discrimination. As in Newman 
v. Piggic Parle Enterprises, Inc., supra, where the 
Court rejected a similar “had faith” test for the 
award of attorney's fees, requiring a showing of bad 
motive would not adequately effectuate the purpose of 
the Act.

The subjective good faith of an employer or a labor 
union does not diminish the economic harm suffered 
by the victims of discrimination and should not 
exempt the violator from the obligation to make those 
victims whole. Moreover, good faith is an inherently 
vague standard, the application of which would re­
duce the predictability of back pay awards and thus 
weaken the incentive for voluntary compliance with 
Title VII.

This Court stilted in Griggs v. Duke Power Co., 
■101 U.S. 121, 482, that “good intent or absence of 
discriminatory intent does not redeem” an other­
wise unlawful employment practice. For similar rea­
sons, good intent should not, at least in the absence 
of extraordinary circumstances not present here, im­
munize an employer or a labor union from the ob­
ligation to compensate the innocent victims of em­
ployment discrimination.

Nor should the plaintiffs* initial disclaimer of an 
intention to seek back pay on behalf of members of 
the class not before the court justify denying an 
award in this case. Since petitioners knew of the 
back pay claim for all members of the class at least 
as early as June 4, 1970 (A. 28-29), they were on full 
notice of the claim more than a year prior to trial. 
The district court itself stated in an opinion filed 10



>-*■«*

29

months prior to trial that “[tjhe possibility of an 
award of money damages upon a determination of 
liability is still with us” despite the plaintiffs’ earlier 
disclaimer (A. MS). The court reiterated several 
weeks before trial that the claim for back pay would 
be considered on its merits and that “damages may be 
recovered in this action if the plaintiffs prevail” (A. 
51). This advance notice gave petitioners ample op­
portunity to address the matter completely in the 
district court.

Moreover, as the court of appeals correctly held, 
the defenses available to petitioners with respect to 
the back pay issue were identical to their defenses 
with respect to injunctive relief. Petitioners were thus 
no less able to defend against the back pay claim 
than they would have been had it been asserted at 
the time the complaint was tiled. The district court’s 
speculation that petitioners “might have chosen to ex­
ercise unusual zeal” in expediting the trial if  they 
had known that back pay was in issue (A. -198) is 
contradicted by the absence of any indication that 
they exercised any such “unusual zeal” after learning 
that the plaintiffs were seeking back pay. Albemarle 
makes no representation in its brief that it would 
have sought an earlier trial.

Albemarle contends that “fdjiscovery relating to 
individual claims was clearly rendered much more 
difficult, if not impossible, by the passage of time” 
(Br. 58). But the record reflects that the district 
court ordered the plaintiffs to answer Albemarle’s 
interrogatories concerning individual back pay claims



30

and to submit “a statement as to each such member 
of the class as to how he was personally and specifi­
cally discriminated against; and the amount of dam­
ages being claimed” (A. 46). Albemarle does not 
indicate why those discovery procedures were inade­
quate.'3

In the absence of substantial prejudice to pe­
titioners, the delay in claiming back pay should not 
altei the district court’s duty “to fashion the most 
complete relief possible” (Section-by-Section Analysis 
of 1972 Act, supra, 118 Cong. Rec. 7168, 7565). 
Ri.de 54(c) of the federal Rules of Civil Procedure 
provides that the district court “shall grant the relief 
to which the party in whose favor it is rendered is 
entitled, even if the party has not demanded such 
relief in his pleadings.” Accordingly, other courts of 
appeals have correctly held that Title VII back pay 
claims asserted even after trial are entitled to full 
adjudication in the absence of prejudice. See Rosen 
v. Public Service Electric and Gas Co., 409 F. 2d 775, 
780, n. 20 (C.A. 3 );  Robinson v. Lorillard Corp., 
supra, 444 F. 2d 802-803; United States v. Ilayes 
International Corp., 456 F. 2d 112, 121 (C.A. 5).

15 N or should back pay be foreclosed because A lbem arle’s 
assets w ere sold by E thyl Corporation to I lo em er W aldorf 
Corporation in 1908. If  H oerncr W aldorf tru ly  acted “ in 
the belief th a t in th is su it plaintiffs were not s e e k i n g  dam ­
ages” (A lbem arle J»r. .r>8), th a t consideration poes only to 
the  allocation of liability as am ong the various defendants.



31
C. Hack P ay  C laim s Should He D eterm ined F o r All 

C lass M embers \ \  ho Have S ustained  Economic Loss, 
W hether O r N ot They Filed Indiv idual CharRes 
W ith The E qual Em ploym ent O pportun ity  Com­
mission

Albemarle concedes (Br. 62) that membership in a 
Title VII class action for injunctive relief need not 
be limited to persons who have filed charges with the 
Equal Employment Opportunity Commission. Miller 
v. International Paper Co., 408 F. 2d 283, 284-285 
(C.A. 5) ; Oat is v. Cro wn Zellcrbach Corp., 398 F. 2d 
496, 499 (C.A. 5). It contends, however, that back 
pay should be denied to those members of the class 
who did not individually file charges with EEOC.

The purpose of the provision of Title VII (Sec­
tion 706, 42 U.S.C. 2000c-5) requiring the filing of 
charges with EEOC is to provide notice to the charged 
party of the alleged violation of the Act and to bring 
to bear the voluntary conciliatory functions of EEOC. 
The filing of a single charge alleging unlawful em­
ployment practices gives the employer notice of the 
complaint and an opportunity to correct the unlaw­
ful practices. It would serve no useful purpose to 
re(iuire scores of substantially identical claims to be 
processed through EEOC when a single charge is 
sufficient to satisfy the requirements of Title VII. 
Bowc v. Colgate-Palmolive Co., supra, 416 F. 2d at 
720; Miller v. International Paper Co., supra, 408 
F. 2d at 285; see also Franks v. Boiuman Transporta­
tion Co., 495 F. 2d 398, 421-422 (C.A. 5 ), certiorari 
granted on other issues, March 21, 1975, No. 74-72S; 
Head v. Timken Roller Bearing Co., supra, 486 F. 2d 
at 876.



M

32

Just as with injunctive relief, once it has been de­
termined that the defendant has engaged in unlawful 
employment practices that have caused the class mem­
bers financial loss, the defendant’s liability for back 
pay arises from conduct applicable to all aftected 
members of the class. That the particular way in 
which that common conduct has affected indi\ idual 
class members may differ in degree, so that the 
amount of back pay owing to each affected class 
member may vary, docs not change the essential class 
characteristics of the discriminatory practices. 
“Once class-wide discrimination has been demon­
strated to result in disproportional earnings, a class­
wide decision that back pay is appropriate can be 
discerned without deciding which members of the 
class are entitled to what amounts (Pettway  v.
American Cact Ivon Pipe Co., supva, 494 I'. 2d at 
257). Thereafter, the district court” can proceed 
to determine how much back pay is owed to which 
class members."

As respondents’ brief demonstrates (pp. 37-41), 
the legislative history of the Equal Employment Op-

14 In appropria te  cases, the  court may re fe r the m atte r  to  a 
special m aster. See Fed. It. Civ. 1\ 53. The d is tr ic t court in 
the p resen t case stated  in a p re tria l o rder th a t  “ if [hack pay] 
claims become too num erous o r complicated, th is phase of the 
case may be referred  to a  special m aste r’’ (A. 51 ). The record 
reflects th a t approxim ately 80 persons filed claim s fo r back 
pay in the d istric t cou rt (A. 70-8.>, 11G-117).

F o r a com prehensive discussion of m ethods fo r de ter­
m ining back pay aw ards, see P ettw ay  V. Am erican Cast Iron  
Pipe Co., supra, A91 F. 2d a t  251-203, and Johnson  V. Goodyear 
Tire & Rubber Co., tnijiru, 101 F. 2d a t 1371-1375, 1379-1380.

j
[

■
{

i



33

portunity Act of 1972 shows that Congress considered 
and rejected a provision, originally included in the 
bill that passed the House, that would have fore­
closed an award of back pay to any member of a 
class who had not filed an individual charge with 
EEOC. The report accompanying the Senate bill, 
which omitted the provision contained in the House 
bill stated that “any restriction on [class] actions 
would greatly undermine the effectiveness of title 
VII” (S. Rep. No. 415, 92d Cong., 1st Sess., p. 27). 
The Section-by-Section Analysis of the bill that 
emerged from the Conference Committee and that 
was passed by both houses stated: “ |T ]he leading 
cases in this area to date have recognized that many 
Title VII claims are necessarily class complaints and 
that, accordingly, it is not necessary that each indi­
vidual entitled to relief be named m the original 
charge or in the claim for relief. A provision lim it­
ing class actions was contained in the House bill and 
specifically rejected by the Conference Committee’
(118 Cong. Rec. 71G8, 7565). .

Congress thus explicitly rejected the precise limi­
tation on class action relief that Albemarle now asks 
this Court to accept.



34

II

A LBEM A R LE’S TE ST IN G  PROGRAM  IS UNLAW ­
FU L  BECA U SE IT S  T E S T S  O PE R A T E  TO E X ­
CLUDE BLACKS AND HAVE NOT B E E N  SHOW N 
TO BEAR A DEM O NSTRA BLE R E L A T IO N SH IP  TO 
SU C C E SSFU L PER FO R M A N CE OF T H E  JO B S FOR
W H ICH  T H E Y  ARE USED

In Griggs v. Duke Power Co., 401 U.S. 424, this 
Court hold that Title VII prohibits the use of tests 
or other employee selection procedures that operate 
to exclude members of minority groups, unless the 
employer demonstrates that the procedures are sub­
stantially related to job performance— i.c., that they 
reliably measure capability for, or accurately predict 
successful performance of* the jobs for which they are 
used. The district court in the present case ruled 
that Albemarle carried its burden of demonstrating 
that its tests are job-related. The court of appeals, 
however, relying on the principles established by this 
Court’s decision in Griggs and looking to EEOC’s 
Guidelines on ‘Employee Selection- Procedures (29 
C.F.R. Part 1007) for guidance in determining the 
adequacy of Albemarle’s proof, held that the com­
pany’s test validation study was methodologically de­
ficient and did not, in any event, demonstrate that the 
tests provide a reasonable measure of the applicant’s 
ability to perform successfully the jobs for which the 
tests are used. That holding is correct.



35

A. A lbem arle’s T es ts  Have A D isproportionate A dverse 
Im pact On lllacks

Under Title VII, as construed by this Court in 
Grifffjs, the plaintiffs bear the threshold burden of 
showing that a challenged testing procedure disquali­
fies from employment opportunities a disproportion­
ately high percentage of minority group candidates. 
If that showing is made, the burden shifts to the de­
fendant to demonstrate that the tests are job-related.

Although the district court did not specifically state 
that Albemarle’s tests disproportionately exclude 
blacks, it did find that the higher paying lines of pro­
gression “remain essentially segregated because of 
the inability of black employees to meet the educa­
tional and testing requirements” (A. 49G). More­
over, the adverse racial impact of the tests was an 
implicit premise of the court’s lengthy discussion con­
cerning the job-relatedness of those tests, in which 
it concluded that “ [t]he defendants have carried the 
burden of proof” by demonstrating that the tests aic 
job-related (A. 497). The court of appeals was more 
explicit. It stated that “ [t]he plaintiffs made a suffi­
cient showing below that Albemarle’s testing proce­
dures have a racial impact” (A. 515).

Albemarle argues (Br. 28-31) that the plaintiffs’ 
showing was not sufficient and that the company 
therefore was not required to prove that the tests aie 
job-related. That issue, however, was neither pre­
sented in Albemarle’s petition for a writ of ceitio ia ii 
nor fairly comprehended within any issue that was 
presented. It is, therefore, not properly before this



Xm-V-aMHii M4 k-ViV

36

Court. Lawn v. United States, 3o5 U.S. 339, 362-363, 
n. 16.

Jn any event, we believe, substantially for the rea­
sons stated by respondents (Br. 19-21), that the court 
of appeals was justified in concluding that the plain­
tiffs carried their threshold burden of showing a dis­
proportionate racial impact.

B. The Com pany’s T esting  P rogram  W as N ot Shown 
To Be Job-B elated

Albemarle attempted to meet its burden of showing 
that its tests are related to the jobs for which they 
are used by submitting the results of a test validation 
study conducted in 1971 by Dr. Joseph Tiffin (A. 
431-438). The court of appeals correctly concluded 
that the study failed to demonstrate that Albemarle’s 
tests “have a manifest relationship to the employ­
ment in question” (Griggs v. Duke Power Co., supra, 
401 U.S. at 432).

In reaching that conclusion, the court of appeals 
drew upon the testing expertise reflected in several 
sections of EEOC’s Guidelines mi Employee Selection 
Procedures, 29 C.F.R. Part 1607. One of those sec­
tions emphasizes the importance of a careful job 
analysis to identify “ [t]he work behaviors or other 
criteria of employee adequacy which the test is in­
tended to predict” (29 C.F.R. 1 6 0 7 .5 (b )(3 )). An­
other highlights the danger of relying upon the “sub­
jective evaluations” of supervisors in measuring the 
job performance of the subjects of a validation study, 
because of “the possibility of bias inherent in” such



»<ufiihn __.... .. i, «--aartW«¥ii M. M..I —

37

evaluations (29 C.F.R. 160 7 .5 (b )(4 )). A third sec­
tion states that the validity of a test with respect to 
a particular job may be demonstrated by evidence 
of validity with respect to a related job, if “no sig­
nificant differences exist” between the jobs (29 
C.F.R. 1 6 0 7 .4 (c )(2 )).

The court of appeals held that Albemarle’s valida­
tion procedure was deficient because the expert who 
conducted the study performed no job analysis but 
relied exclusively upon the “possibly subjective rat­
ing of supervisors who were given a vague standaid 
by which to judge job performance” (A. 517). Re­
ferring to the Guidelines, the court stated. \Vc 
agree that some form of job analysis resulting in 
specific and objective criteria for supervisory rat­
ings is crucial to a proper concurrent validation 
study” (A. 518).

The court also held that, “ [e]ven if the validation 
procedure had been proper, it was error to approve 
the testing procedures for lines of progression wheie 
there had been no validation study” (ibid.). The 
court recognized that “a test need not always be vali­
dated for each job for which it is required” (ibid.), 
but it held that the absence of any job analysis for 
the lines of progression involved in the study and those 
for which the tests are required “prevents concluding 
that no significant differences exist in the jobs in 
question” (A. 519).

Finally, the court held that “it was also error to 
approve requiring applicants to pass two tests for 
positions where only one test was validated (ibid.).



38

Although Albemarle argued that the requirement is 
appropriate because the company hires employees in­
to a pool from which they may move into any one 
of several lines of progression, the court stated that 
“Albemarle has not shown that hiring all employees 
into a pool is necessary to the safe and efficient oper­
ation of its business, nor has it shown that hiring em­
ployees for specific lines of progression is not an ac­
ceptable alternative” (A. 519-520).

In our view, each of these holdings is correct. Al­
bemarle’s validation study was not conducted in ac­
cordance with professionally accepted standards, and 
it failed, in any event, to show that the tests are 
substantially related to performance of the jobs for 
which they are used.

1. T he  court o f  appeals correctlp  looked to  th e  
EEO C  G uidelines fo r  guidance in assessing the  
adequacy o f A lbem arle’s validation s tu d y

Albemarle’s threshold contention is that the court of 
appeals erroneously “equat[ed] EEOC suggested tech­
nical methodology with acceptable standards of judi­
cial proof of job relatedness” (Br. 34). That is not 
the way we read the court of appeals’ opinion.

The court did not state or imply that the Guidelines 
have the force of law or that the adequacy of a vali­
dation study depends upon rigid compliance with each 
provision of the Guidelines. It merely looked to the 
Guidelines as a source of professionally accepted 
standards for the validation of employee selection 
procedures, giving them the “deference” to which they



* * *are entitled as an “interpretation of the Act
by the enforcing agency” (A. 51G). See Griggs v. 
Duke Power Co., supra, 401 U.S. at 433-434.

The determination whether a testing device has 
been adequately validated as a reasonable measure 
of job performance is complex and technical. Since 
most district judges are not experts in industrial psy­
chology or psychometrics and arc not professionally 
equipped to evaluate the adequacy of a test valida­
tion study, it is appropriate for them to defer to the 
experts in those fields for guidance.

There are several accessible sources of such exper­
tise in the field of employee test validation, lh e  
American Psychological Association’s Standards for 
Educational and Psychological Tests and Manuals 
(hereinafter APA Standards) are generally regarded 
as stating in a comprehensive fashion the accepted 
standards of the psychological profession.’'1 The gov­
ernment agencies with responsibilities in the area of 
equal employment opportunities—including EEOC, 
the Department of Labor, and the Civil Service Com-

io The 100(5 edition of the  APA  Standards  is p a r t  of the 
record in th is case and is se t fo rth  a t  A. 415-426. The S tand­
ards w ere revised in 1074. b u t the revisions do not substan­
tially affect the provisions rela ting  to  the m atte rs  a t  issue 
here. A lbem arle’s expert. Dr. Tiffin, testified th a t  the  Stand- 
ards a re  “a  classic” in the psychological profession, th a t  he 
generally agrees w ith the principles fo r validating  tests  th a t 
a re  contained in the Standards, and th a t  he a ttem pted  in us 
study to follow those principles “ [a] hundred percent (A.
172,209).



40

m inion—publish guidelines or regulations dealing in 
a more concise fashion with test validation.”

These standards, guidelines, and regulations are not 
in every respect identical, but each can provide use­
ful guidance to a court in evaluating an employer’s 
test validation study. In a case such as the present 
one, involving a private employer subject to the provi­
sions of Title VII and within the scope of EEOC s 
enforcement responsibilities, it is particularly appio- 
priate for the court to look to the EEOC Guidelines 
for “a helpful summary of professional testing stand­
ards” (Vulcan Society v. Civil Service Commission, 
490 F. 2d 387, 394, n. 8 (C.A. 2 ) ) ,  since these 
guidelines undeniably provide .a valid framework for 
determining whether a validation study manifests 
that a particular test predicts reasonable job suita­
bility” ( United States v. Gcoryia Power Co., 474 F. 
2d 90G, 913 (C.A. 5 ) ) .

If there arc substantial, legitimate differences with­
in the profession, the court should of course apply 
the Guidelines with appropriate caution in light of 
those differences. But where, as here, the Guidelines 
accurately reflect the standards and expertise of the 
psychological profession and no showing is made that

» The form er Labor D epartm ent o rder governing the  vali­
dation of employm ent tests  by contractors and ^ ^ n o d o r s  
subject to the provisions of Lxecutive O r d e r  11-H> nppi a s 

t \  not ‘v>8 The cu rren t version, which is substantially

GO'1 The Civil Service Commission’s regulations governing 
te s t validation appear a t  37 Fed. Reg. 21557-21559.



41

there are significant differences of professional opin­
ion with respect to the relevant portions of the Guide­
lines, an employer whose validation study departs 
from those provisions should bear the heavy burden of 
showing that the departure was warranted and that 
the validation study was nevertheless adequate to de­
monstrate that the tests are job-related. In these 
circumstances, the Guidelines 1 should be followed ab­
sent a showing that some cogent reason exists for non- 
compliance” {United Slates v. Georgia Power Co.,
supra, 474 F. 2d at 913).

The court of appeals in the present case did not 
rigidly and uncritically apply the Guidelines to Al­
bemarle’s study. It looked to the Guidelines for as­
sistance in evaluating that study, and found that the 
pertinent provisions wTerc helpful in identifying the 
study’s inadequacies. Albemarle made no claim that 
those provisions were the subject of professional dis­
agreement, nor did it show' that the study was ade­
quate notwithstanding its apparent defects. In those 
circumstances, the court’s limited reliance upon the 
Guidelines w'as plainly appropriate.

2. Albem arle 's validation s tu d y  teas not conducted  
in accordance w ith pro fessiona lly  accepted

n  f t n  r r l  <

The tests used by Albemarle—the Revised Beta 
Examination and the Wonderlie A and B do not 
purport to test the specific skills that are required 
to perform the jobs in question. They measure only 
general aptitude and intelligence. Consequently, Title



42

V ll ’s command that “any tests used must measure 
the person for the job and not the person in the 
abstract” (Griggs v. Duke rower Co., supra, 401 
U.S. at 436) highlights the importance of a properly 
conducted validation study in this case as a means of 
ensuring that the general aptitude tests used by 
Albemarle do not reflect the common “inadequacy of 
broad and general testing devices” (id. at 433).'

Albemarle’s study, however, was not conducted in 
accordance with professionally accepted validation 
procedures. A job analysis— the breaking down of 
a j0b into its basic elements— is, under generally 
recognized professional standards, an essential first 
step in a validation study (A. 205, 369-371). See 
the EEOC Guidelines, 29 C.F.R. 1607.4(c), 1607.O 
(b) (3) (A. 310, 312-313); APA Standards, C4 (A. 
419); Department of Labor Order, 41 C.F.R. 60-3.6 
(a ) (3 )  ; Civil Service Commission Regulations, ]} S3- 
1 (a )(3 )  (37 Fed. Reg. 21557). Albemarle’s expert
conducted no job analysis.

A job analysis identifies the skills needed to per­
form the duties and tasks of a particular job. It 
might reveal, for example, that manual dexterity and 
concentration are necessary for a particular job but

•» The W onderlic tes ts  used here and in Griggs (see -101 U.S. 
a t  4'JO n C») have been the  subject of num erous challenges 
under T itle  VII. See. , l i ngers  V. Internationa! P « p crC o  
9 t e e m  KIM) *" 9SC>.-> <e.A. K); Young  v. Ldgeom b Steel 
Co 199 F  °d  '17 9S, 100 (C.A. 4 ) ;  F ranks  V. Bow m an Trans­
portation Co., supra, 495 F. 2d a t 412; Duhon y Goo<l„car
T ire  * Bobber Co.. M l  K. 2.1 817, » ! « » ( « .
V. Good near Tire & Rubber Co., supra, 491 F. ~d at lo<-.



nuuki

! I

1 i

4 l

i

43

that speed is not. A job analysis therefore provides 
a basis for an objective rating of an employee’s 
ability to do a job. Since Dr. Tiffin conducted no 
job analysis, he was obliged to rely on subjective 
supervisory ratings— “just how well the guy can do 
the job when he’s feeling right”— as the sole meas­
ure of job performance.

Not only do such subjective criteria provide “a 
ready mechanism for discrimination” (Rowe v. Gen­
eral Motors Corp., 457 F. 2d 348, 359 (C.A. 5 ) ) ,  
but also they leave the raters free to interpret the 
criterion according to their personal views. Thus, 
while manual dexterity and concentration may in 
fact be the skills necessary for the job, the super­
visor operating under a subjective standard might 
be rating the employees on the basis of speed and 
demeanor. If the tests actually measured the ability 
to work quickly, but not the relevant criteria of 
manual dexterity and concentration, there might be 
a high correlation between test scores and supervisory 
ratings, but the tests would not in fact measure the 
ability to perform the job.

Thus, while Albemarle contends that a job analysis 
is “superfluous” (Br. 37) because its tests correlated 
in some respects with the supervisory ratings, the 
absence of a job analysis makes it impossible to 
determine whether the correlation is meaningful. 
The abilities rated by the supervisors and measured 
by Albemarle’s tests may not be the ones that are 
necessary to perform the jobs at the mill.

if

s



- tim m i ■Jjih'tirii gffcafr' ii itoteiW tftiiaiwaaah^

44

The absence of a job analysis led to another defect. 
The study was conducted not for individual jobs but 
for groups of jobs adjacent to each other on a line 
of progression (A. 1GG, 17*1). For example, Dr. 
Tiffin’s first job group included the jobs of caustic 
operator and lime kiln operator (A. 432). Since 
there was no job analysis for either job, however, 
there was no basis for determining whether the two 
jobs involve similar tasks requiring similar skills, 
and therefore no foundation for concluding that they 
could properly be validated as a group (see A. 205).

This defect was compounded by the rating method. 
Supervisors were instructed to rate the employees 
in each job group against one another— that is, to 
rank them in order (A. 1S7). Thus, a supervisor 
was required to determine whether a caustic operator 
was superior to a lime kiln operator, though there 
was no analysis indicating that the two jobs were 
substantially the same.

The study was deficient in other respects as well. 
The EEOC Guidelines, 29 C.F.R. 1607.5(b)(2) (A. 
312), like the APA Standards, C4.5 (A. 421), 
deem it essential that tests be administered under 
controlled and standardized conditions and that 
proper safeguards be taken to assure that test scores 
do not contaminate the job performance ratings—  
i.e., that raters are not made aware of the test 
scores of the employees they are rating. Dr. Tiffin, 
however, did not administer the tests himself and 
did not know who did administer them (A. 176). 
He did not take precautions to avoid contamination



45

and did not know whether the supervisors who rated 
the employees were or were not aware of the test 
scores (A. 177). Plaintiffs’ expert testified that it 
was “extraordinarily bad practice” for the person 
conducting the validation study to leave security meas­
ures to those “who have an interest in the outcome” 
(A. 206).

Moreover, the job groups used in the validation 
study were selected from the middle and higher cate­
gories in the lines of progression studied (A. 167, 
17S), although successful applicants for employment 
would be performing entry-level work in the lower 
job categories for several years. Dr. Tiffin sought to 
justify the use of the upper-level categories on the 
ground that “those are the jobs to which these men 
will go if they stay in the progression line long 
enough” (A. 167).

But that standard—which would justify the test­
ing of beginning factory workers by examinations 
that measure the ability to perform the job of senior 
foreman— does not comport with the standards of the 
profession. The EEOC Guidelines, 29 C.F.R. 1607.4 
(c )(1 )  (A. 310), state that it is appropriate to 
evaluate employees for higher job levels only if “new 
employees will probably, within a reasonable period 
of time and in a great majority of cases, progress 
to a higher level * * *.” The Civil Service Commis­
sion’s regulations, <j S3-5, 37 Fed. lteg. 215f>8, are 
to the same effect. While the court of appeals de­
clined to decide whether this defect was significant 
because it believed that there was “insufficient evi-



46

tlcnce below as to the time in which it takes an em­
ployee to propress to higher level jobs” (A. 519, n. 
•1), we submit that the burden of presenting that 
evidence should be borne by the person seeking to 
prove the job-relatedness of the tests. In the ab­
sence of such evidence, it is not possible to determine 
whether the tests have been properly validated for 
the jobs for which they are required.

3. T he  s tu d y  docs not, in any  event, dem onstra te  
th a t th e  te s ts  are rela ted  to  the  jobs fo r  which 
th ey  arc used

Even if Dr. Tiffin had followed professionally ac­
cepted procedures in conducting the validation study, 
the results of the study would not validate the tests 
for the use to which they are put by Albemarle. 
The district court found (A. 487), on the basis of a 
stipulation (A. 100), that the Beta and Wonderlic 
tests are administered to applicants for 13 lines of 
progression in eight departments.1* Dr. Tiffin’s study, 
however, covered only eight lines of progression, in 
five departments (A. 514).

Title VII requires that a testing program with a 
racially disparate impact be shown to bear a demon­
strable relationship to successful performance of each 
job for which it is used. Although a single validation 
study covering selected jobs might suffice to prove

•“ Albem arle now sta tes (Hr. 13, 11) th a t the tes ts  are  in 
fac t adm inistered to applicants fo r eight lines of progres­
sion in four departm ents. If  so, th a t  can be shown in the 
d is tr ic t court on rem and. We address our comm ents to  the 
fac ts  cu rren tly  of record.



.... .......

47

Hie test’s validity as used for additional jobs that 
are substantially similar (see 29 C.F.R. 1607.4(c) (2) 
(A. 310-311)), the absence of a job analysis here 
makes it impossible to determine whether the jobs 
excluded from the study are similar to those that
were covered. The result, as the court of appeals 
correctly held (A. 518-519), is that the study does 
not support Albemarle’s use of the tests in lines of 
progression not covered by the study.

Moreover, Albemarle administers all three of its 
tests to job applicants and requires satisfactory 
scores on both the Beta and either the Wonderlic A 
or the Wonderlic B (A. 220; see Albemarle Br. 44, 
n. 44). But Dr. Tiffin’s study found that the Beta 
together with either Wonderlic A or Wonderlic B 
correlated with job performance in only two of the 
10 job groups studied (A. 432). As the court of 
appeals correctly held, the study does not justify “re- 
quiiing applicants to pass two tests for positions 
where only one test was validated” (A. 519).

Albemarle’s answer is that it is reasonable to re­
quire all applicants to qualify under both tests be­
cause it cannot predict in which line of progression 
an employee will be needed” (Br. 46). The practice 
of hiring all employees into a pool “has the advan­
tage of flexibility in workforce” (Br. 47), and it 
would be “unreasonable to disrupt the entire hiring 
system” (Br. 46) in order to ensure that the tests 
are used exclusively for the specific jobs to which 
they are related.



48

But this Court held in Griggs that a test which 
operates to exclude blacks must be “shown to bear a 
demonstrable relationship to successful performance 
of the jobs for which it [is] used” (401 U.S. at 431). 
Qualifying all applicants for every line of progres­
sion may give Albemarle greater “flexibility.” But 
“Congress has forbidden * * * giving these devices 
and mechanisms controlling force unless they are 
demonstrably a reasonable measure of job perform­
ance” (id. at 43G). Business “flexibility” is not “busi­
ness necessity” (id. at 431).

Although Albemarle asserts that its testing pro­
gram is necessary “ [t]o preserve the safe and effi­
cient operation of its pulp mill” (Br. 4G), the couit 
of appeals correctly found that the record does not 
support that assertion. “Albemarle has not shown 
that hiring all employees into a pool is necessary to 
the safe and efficient operation of its business, noi 
has it shown that hiring employees for specific lines 
of progression is not an acceptable alternative (A. 
519-520).

Finally, Albemarle states that, while “ [t]hese ob­
jections may be grounds for modifying the District 
Court’s order, * * * they are not grounds for enjoin­
ing the use of tests completely, as the Court of Ap­
peals has done” (Br. 44).  But that is not what the 
court of appeals has done. It held only that Albe­
marle’s present use of the tests is unlawful. Albe­
marle is not precluded from demonstrating on re­
mand that some other use of its tests is justified 
under the Griggs standard.



CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.

Robert H. Bork,
Solicitor Several.

J. Stanley Pottinger,
A ssistan t A tto n ic y  General.

Mark L. Evans,
A ssistant to the Solicitor General.

James P. Turner,
Brian K. Landsberg,
David L. Rose,
John C. Hoyle,

Attorneys.
J ulia C. Cooler,

A ct hip General Counsel,

Joseph T. Kudins,
Associate General Counsel,

1 iPATRICK RosI:NBERG,
Charles L. Reischel,
Marian IIalley,
Mary-Hei.en Mautner,

A ito n u  </s.
Equal Em ploym ent O pportunity  

Commission.

A pril 1075.

tV 0. t a o t c iM M f o r  o r r i c i ,  1 0 7 3 972  743 130