Affidavit of Alex K. Brock

    N o, 124

Ofmtrt of th Mntd JState
October T erm , 1970

W illie  S. Griggs, et al., petitioners 
v.

D uke P ower Company

ON W R IT  OF C E R T IO R A R I TO T H E  'UNITED S T A T E S  COURT OF 
A PP E A L S  FOti T E E  F O U R TH  C IRCU IT

mm
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

STANLEY ’ HEBERT,, Genera! Counsel, ■
RUSSELL SPECTER,

D eputy General Counsel.
P H IL IP  B. SK LOVER.

Attorney,  .

Equal Em ploym ent
Opportunity Commission, 

W ashington, D.C. 20506.

E R W IN  N. GRISWOLD,
Solicitor General,

JE R R IS  LEONARD,
A ssistan t A ttorney General. 

LAWRENCE G. WALLACE,
D eputy Solicitor, General,:

JOHN E. DIENELT,
A ssistan t to the Solicitor General,

DAVID L. ROSE;
DENIS Er-GORDON,

Attorneys,
D epartm ent o f Justice, 

W ashington, D.C. 20530.

m



I N D E X

Page

Opinions below____________________________________  1
Jurisdiction_______________________________________  1
Question presented_________________________________  2
Statute and regulation involved______________________  2
Interest of the United States_________________________ 3
Statement_________________________________________ 5
Summary of argument_____________________________ •_ 10
Argument:

I. The company’s high school/test requirement for 
employment in traditionally all-white depart­
ments violates section 703(a)(2) of the Civil 
Rights Act of 1964________________________  12

A. An employment practice that appears
neutral but has the effect of discriminat­
ing on the basis of race without busi­
ness necessity is prohibited__________   12

B. The high school completion and written
test requirements imposed here dis­
qualify a substantially greater propor­
tion of Negroes than whites from em­
ployment opportunities_______ :_____  16

C. There is no business necessity for the
application here of the diploma/test
requirement____________ __________ _ _ 19

II. Section 703(h) of the Act does not authorize the use
of aptitude tests that are not job-related___ ____ 21

A. The language of Section 703(h) and its
interpretation by the Equal Employment 
Opportunity Commission preclude tests 
which do not predict success in the jobs 
for which they are given______________ 21

B. The legislative history of Section 703(h)
indicates that Congress contemplated use
of job-related tests only______________  23

Conclusion________________________________________  30
<i)

403- 139— 70— 1



II

CITATIONS
Cases:

Arrington v. Massachusetts Bay Transportation Author- Page
ity, 306 F. Supp. 1355_________________________ 14

Bowe v. Colgate-Palmolive Co., 416 F. 2d 711----------- 22
Clark v. American Marine Corp., 304 F. Supp. 603__  14
Colbert v. H. K. Corp., N.D. Ga., Civ. No. 11599 (July

6, 1970)_____________________________________ 14
Dobbins v. Local 212, IBEW , 292 F. Supp. 413_____ 14, 15
Gaston County v. United States, 395 U.S. 285_______  13, 16
Goss v. Board of Education, 373 U.S. 683___________ 13
Guinn v. United States, 238 U.S. 347______________ 12
Kotch v. Board of River Port Pilot Commissioners, 330

U.S. 552____________________________________  14
Lane v. Wilson, 307 U.S. 268____________________  13
Local 53 of Int. Ass’n of Heat & Frost I. <& A. Wkrs. v.

Vogler, 407 F. 2d 1047________________________  11, 14
Local 189, United Papermakers and Paperworkers v.

United States, 416 F. 2d 980, certiorari denied, 397
U.S. 919_________________________________ 11, 14, 15

Louisiana v. United States, 380 U.S. 145___________  13
Marcus Jones v. Lee Way Motor Freight, Inc., No.

464-69 (C.A. 10), decided August 17, 1970_______  14
Monroe v. Board of Commissioners, 391 U.S. 450_____  13
Norwegian Nitrogen Products Company v. United

States, 288 U.S. 294----------------------------------------  22
Quarles v. Philip Morris, Inc., 279 F. Supp. 505____ 11, 14
Robinson, et at. v. P. Lorillard Co., 62 Lab. Cas. 19423_ 14
Smith v. Texas, 311 U.S. 128-------------------------------  13, 16
Udall v. Tollman, 380 U.S. 1-------------------------------- 22
United States v. H. K. Porter Co., 296 F. Supp. 40,

appeal pending (C.A. 5, No. 27,703)____________  14
United States v. IB E W  Local 38, 63 Lab. Cas. H9463_ 11, 14 
United States v. Sheet Metal Workers Int. Ass’n Local

U. 36, 416 F. 2d 123______________________  11, 14, 15
Statute:

Civil Rights Act of 1964:
Title VII, 78 Stat. 253, et seq., 42 U.S.C. 2000e,

et seq________________________ 2, 3, 11, 13, 15, 29
Section 703(a)(2), 42 U.S.C. 2000e-2(a)(2)__ 2,

11, 20, 21
Section 703(e)(1), 42 U.S.C. 2000e-2(e)(l)__ 22
Section 703(h), 42 U.S.C. 2000e-2(h)______ 2,

4, 11, 21, 23, 27, 28, 29



I l l

Miscellaneous:
Ash, The Implications of the Civil Rights Act of 196f  

for Psychological Assessment in Industry, 21 American Page
Psychologist 797 (1966)__________________  23

Bureau of Labor Statistics, Employment and Earnings,
August 1970, Table A-3, Major Unemployment
Indicators-_____________________________  4

Bureau of Labor Statistics, Report No. 375: The Social 
and Economic Status of Negroes in the United States,
1969__________________________________  17

CCH Employment Practice Guide f1f6H2, 6136, 6139.. 21
110 Cong. Rec.:

5081-5082_________________________________  23
5614-5616_________________________________  23
5662______________________________________ 23
5999-6000_________________________________  23
6416______________________ - ______________ 26,30
7012-7013_________________________________  23
7213- _____________________________________  26
7246-7247__________ - - - - - _______________ _ 26
7791______________________________________ 24
7800____________________ - ________________  24
8447____  23,24
9024______________________________________ 23
9025-9026__________________________________ 23,25
9599-9600_________________________  24
9600______________________________________ 25
11251______________________    27
12807-12817_______________________________  23
13492_____________________________________ 28
13503- 13504________________  28
13504- - . . _______________________________ 28
13505_____________________________________ 28
13724_____________________________________ 29

Cooper and Sobol, Seniority and Testing Under Fair 
Employment Laws: A  General Approach to Objective 
Criteria of Hiring and Promotion, 82 Harv. L. Rev.
1598 18



IV

Miscellaneous—Continued
Equal Employment Opportunity Commission, Guide­

lines on Employment Testing Procedures, adopted 
August 24, 1966, CCH Employment Practice Guide Page
1 16,904__________________________________  3, 4, 21

Equal Employment Opportunity Commission, Guide­
lines on Employee Selection Procedures (revised) 
effective August 1, 1970, 35 Fed. Reg. 12333, 29
C.F.R. 1607^________________________________  4,21

Executive Order 11246__________________________  3
33 Fed. Reg. 14392_____________________________  3
H.R. 7152, 88th Cong., 2d Sess__________________  23
Kirkpatrick, et al., Testing and Fair Employment: 

Fairness and Validity of Personnel Tests for Different 
Ethnic Groups, New York University Press, New
York, 1968__________________________________  18

Ruda and Albright, Racial Differences on Selection 
Instruments Related to Subsequent Job Performance,
21 Personnel Psychology 31____________________ 18

U.S. Bureau of the Census, Census of the Population:
1960; Volume 1, Characteristics of the Population:

Part 1, Table 174, pp. 1-419, 1-420___________ 17
Part 35, Table 47, p. 35-167_________________  17



Jit tfe JSujpm* d̂ 0urt <rf t h  M w k i
October T erm , 1970

No. 124

W illie  S. Griggs, et al., petitioners

v.
D tjke P ower Company

ON W R IT  OF C E R T IO R A R I TO TH E  U NITED  S T A T E S  COURT OF 
A P P E A LS FOR TH E  F O U RTH  C IRCU IT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the court of appeals (A. 206a-250a) 
is reported at 420 P. 2d 1225. The opinion of the 
district court (A. 26a-42a) is reported at 292 P. 
Supp. 243.

JURISDICTION

The judgment of the court of appeals was entered 
on January 9, 1970. The petition for a writ of cer­
tiorari was filed on April 9, 1970, and was granted 
on June 29, 1970 (399 U.S. 926). The jurisdiction of 
this Court rests on 28 U.S. 1254(1).

(i)



2

QUESTION PRESENTED

Whether it is unlawful under Title V II of the 
Civil Rights Act of 1964 for an employer to require 
completion of high school or passage of certain gen­
eral intelligence tests as a condition of eligibility for 
employment in, or transfer to, jobs formerly reserved 
only for white employees, when:

(1) both requirements operate to disqualify 
Negroes at a substantially higher rate than 
whites; and

(2) neither has been shown to be necessary for 
successful performance of the jobs.

STATUTE AND REGULATION INVOLVED

Title V II of the Civil Rights Act of 1964 (78 Stat. 
253, et seq., 42 IT.S.C. 2000e, et seq.) provides in perti­
nent part as follows:

Sec. 703(a) I t shall be an unlawful em­
ployment practice for an employer—

* * * * *
(2) to limit, segregate, or classify his 

employees in any way which would de­
prive or tend to deprive any individual of 
employment opportunities or otherwise ad­
versely affect his status as an employee, be­
cause of such individual’s race, color, re­
ligion, sex, or national origin. 
* * * * *

(h) Notwithstanding any other provision of 
this title, it shall not be an unlawful em­
ployment practice for an employer * * * to 
give and to act upon the results of any pro­
fessionally developed ability test provided that



3

such test, its administration or action upon the 
results is not designed, intended, or used to dis­
criminate because of race, color, religion, sex or 
national origin. * * *

* * * * *

The Equal Employment Opportunity Commission 
Guidelines on Employment Testing Procedures, 
adopted August 24, 1966, COH Employment Practice 
Guide, l! 16,904, state in pertinent part as follows:

* * * * *
The Commission interprets “professionally 

developed ability test” [in Section 703(h)] to 
mean a test which fairly measures the knowl­
edge or skills required by the particular 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 or­
ganization claiming expertise in test prepara­
tion does not, without more, justify its use 
within the meaning of Title VII.

INTEBEST OE THE UNITED STATES

Federal responsibility for enforcing Title V II of 
the Civil Rights Act of 1964 rests with the Attorney 
General and the Equal Employment Opportunity 
Commission. Pursuant to Title V II and the provi­
sions of Executive Order 11246 prohibiting employ­
ment discrimination by government contractors and 
subcontractors, the United States is engaged in com­
prehensive efforts to eliminate racially discriminatory 
employment practices and to remedy the continuing 
effects of past discrimination. But the goal of equal



4

employment opportunity remains unrealized; unem­
ployment and underemployment among Negroes and 
other minority groups continues to be substantially 
higher than it is among the population at large,1 and 
remains a serious national problem.

The Equal Employment Opportunity Commission 
issued Guidelines on Employment Testing Proce­
dures 2 shortly after Title V II became effective. The 
Guidelines interpreted Section 703(h) as permitting 
only tests which measure ability to perform the jobs 
for which they are used, that is, “ job-related” tests. 
The Commission’s interpretation was based on the leg­
islative history of Title V II in general and the test­
ing proviso of Section 703(h) in particular, and has 
been followed elsewhere in the Executive Branch.3

The decision of the court of appeals is inconsistent 
with the Commission’s interpretation of Section 703 
(h) and would, if permitted to stand, sanction the use 
of employment screening devices which do not measure 
abilities to perform specific jobs but do seriously 
limit employment and promotion opportunities for 
Negroes and other minority groups. This would seri­

1 For example, in July 1970, the unemployment level for 
nonwhites was 8.3 percent, while that for whites was 4.7 per­
cent. See Bureau of Labor Statistics, Employment .and- Earn­
ings. August 1970, Table A-3, Major Unemployment Indicators.

2 The guidelines were issued on August 24, 1966, and pub­
lished in CCH Employment Practice Guide f  16,904, and are 
reprinted in the Appendix pp. A-129b-136b. Revised guidelines, 
effective August 1, 1970, 29 C.F.R. 1607, are reprinted in the 
Appendix to petitioners’ brief, pp. 8-11.

3 The Secretary of Labor has applied the same testing stand­
ard with respect to the employment practices of federal con­
tractors and subcontractors under Executive Order 11246 (see 
33 Fed. Reg. 14392).



5

ously impede the government’s continuing efforts to 
achieve the equality of employment opportunities 
which Title V II was intended to insure.

STATEMENT

1. Traditionally, respondent Duke Power Company 
discriminated on the basis of race in the hiring and 
assigning of employees at its Dan River Steam Sta­
tion in Eden, North Carolina (A. 32a).4 Negroes were 
employed only in the Labor Department, where the 
highest paying jobs they occupied paid less than the 
lowest paying jobs in four other “operating” depart­
ments, in Which only whites were employed (A. 32a, 
72b). The “operating” departments were the Coal 
Handling Department, responsible for receiving, 
weighing, sampling, and storing coal; the Operating 
Department, responsible for operating the boilers, 
turbines, and auxiliary equipment used to generate 
electric power; the Maintenance Department, respon­
sible for mechanical, electrical, and related mainte­
nance activities; and the Laboratory and Test 
Departments, which are responsible for various chem­
ical and electrical monitoring activities necessary to 
the operation of the power station (A. 55a-58a). Cer­
tain miscellaneous jobs, such as watchman, were also 
white only (A. 58a). Promotions were normally made 
within each department: on the basis of job seniority.

4 The printed Appendix in this case is supplemented by a 
separate Exhibit volume. Page references to the Appendix are 
identified by a lower case “a”, e.g.. A. 32a, and those to the 
Exhibit volume by a lower case “b”, e.g.. A. 72b.

403- 139— 70 2



Transferees into a department usually began in the 
lowest position (A. 58a-60a, 208a).

A Negro was first assigned to a job in an operating 
department in August 1966, five months after charges 
had been filed with the Equal Employment Opportu­
nity Commission. The employee, a high school grad­
uate who had begun in the Labor Department in 1953, 
was promoted to a job in the Coal Handling Depart­
ment (A. 69a, 83b).

In the 1950’s the Company instituted a policy of 
requiring a high school education for initial assign­
ment to any department except Labor, and for 
transfer from the Coal Handling Department or 
Watchman to any “inside” department (Operations, 
Maintenance, or Laboratory and Test Departments) 
(A. 85a, 92a). When the Company abandoned its 
policy of restricting Negroes to the Labor Depart­
ment, completion of high school was also made a 
prerequisite to transfers from Labor to any other 
department. From the time the high school require­
ment was instituted to the time of trial, however, 
white employees without a high school education con­
tinued to perform satisfactorily and achieve promo­
tions in the the “ operating” departments (A. 77b,
83b, 126b-127b).

The Company added a further requirement for 
new employees on July 2, 1965, the date on which 
Title V II became effective. To qualify for placement 
in any but the Labor Department it became neces­
sary to register satisfactory scores on two commer­
cially prepared aptitude tests, as well as have a high 
school education (A. 86a-87a). Completion of high



7

school alone continued to render incumbent employees 
eligible for transfer to the four desirable depart­
ments from which Negroes had been excluded. In 
September 1965, the Company began to permit in­
cumbent employees who lacked a high school educa­
tion to qualify for transfer from Labor, Coal Han­
dling or Watchman to an “ inside” job by passing 
the two tests (A. 85a-86a).

The tests used were the Wonderlie Personnel Test, 
which purports to measure general intelligence, and 
the Bennett Mechanical Aptitude Test (A. 165a). 
Neither was intended to measure the ability to learn 
or perform a particular job or group of jobs (A. 109a; 
181a-184a). The requisite scores used for both initial 
hiring and transfer approximated the national median 
for high school graduates (A. 87a-88a; 181a-183a). 
The test standards are thus more stringent than the 
high school requirement, since they would screen out 
approximately half of all high school graduates.5

2. This class suit was brought by the thirteen Negro 
employees of the Labor Department on October 20, 
1966, alleging that the Company’s testing, transfer, 
and seniority practices violated the rights of incum­
bent Negro employees under Title V II of the Civil 
Rights Act of 1964 by conditioning eligibility for 
transfer out of the Labor Department on educational 
or testing requirements which were not imposed on

5 The cut-off on the Wonderlie test was slightly lower than 
the national median for high School graduates, while that 
used on the Bennett test coincided with the national median 
score. Company witnesses testified that their objective in se­
lecting the' cut-offs was to set them at levels achieved by the 
“average” high school graduate (A. 181a-183a).



white employees previously assigned to jobs in more 
desirable departments. They further contended that, 
even if applied by the Company only to persons hired 
after they were instituted, the high school and 
testing requirements were unlawful since, by dis­
qualifying Negroes in substantially higher pro­
portions than whites, they operated to restrict Negroes 
to the low paying labor jobs when there was no busi­
ness necessity for doing so, thus perpetuating the ef­
fects of the Company’s past discrimination.

Through expert testimony, the plaintiffs attacked 
the testing requirements on grounds that the Com­
pany had not shown that the tests measured capacity 
to perform, or predicted success in, any particular 
job or class of jobs in the plant. The testimony of 
plaintiffs’ expert also tended to show that the tests 
disqualified a larger proportion of Negroes than 
whites (A. 140a, 147a-148a, 154a-155a).

The Company’s expert conceded that the tests were 
not designed to measure a person’s capacity to per­
form certain jobs. He testified that they were in­
tended merely as a substitute for a high school 
education on “ the assumption * * * that * * *
the high school education [provides] the training and 
ability and judgment that a person need [dd] * * * 
to do the jobs” in the plant (A. 181a). The Company 
did not, however, demonstrate any relationship be­
tween completion of high school and successful job 
performance (A. 93a, 188a). The high school require­
ment was instituted solely because Company officials 
thought such a policy desirable (A. 93a, 103a-104a).



9

3. The district court found that the Company had 
followed a policy of overt racial discrimination prior 
to the adoption of the Act, but that, as of the time of 
trial, the practice of making initial assignments based 
on race had ceased (A. 32a). While the court agreed 
that the Company’s limitations on transfer eligibility 
and its department seniority system resulted in con­
tinuation of past inequities, it denied relief on the 
ground that application of Title V II was intended to 
be prospective only (A. 34a-35a).

The court of appeals reversed in part, unanimously 
rejecting the district court’s holding that Title V II 
does not prohibit facially neutral practices which per­
petuate the effects of past discrimination. The court 
of appeals ruled that Negroes employed in the Labor 
Department at a time when there was no high school 
requirement for entrance into the higher paying de­
partments could not now be made subject to that 
requirement, since whites hired contemporaneously 
into those departments were never subject to it. The 
court also required that the seniority rights of those 
Negroes be measured on a plant-wide, rather than a 
departmental, basis.6

With respect to Negroes hired after imposition of 
the high school requirement, however, a majority of 
the court of appeals affirmed the judgment of the

6 The court held that the case was moot as to four Negro 
employees. Three have a high school education and have been 
transferred out of the Labor Department, while the fourth 
recently completed a high school equivalency course. The logic 
of the court’s seniority ruling, i.e., that the plaintiffs to 
whom the high school requirement may no longer be applied 
must be accorded plant-wide seniority, applies as well to these



10

district court. The court noted that there was no 
finding of a racial purpose or motive in the adoption 
of the high school or test requirements and that they 
had been applied fairly to whites and Negroes alike. 
I t held that, in the absence of a discriminatory pur­
pose, use of such requirements was permitted by the 
Act, The court expressly rejected petitioners’ conten­
tion that, since both requirements operated to dis­
qualify proportionately more Negroes than whites, 
they were unlawful under Title V II unless shown to 
be valid predictors of job success (“job-related”). 
Judge SobCloff dissented from this aspect of the de­
cision, maintaining, as do petitioners in this Court, 
that Title V II prohibits the use of employment 
criteria which operate in a racially exclusionary fash­
ion and do not measure skills or abilities necessary to 
performance of the jobs for which those criteria are 
used.

SUMMARY OF ARGUMENT

Duke Power Company formerly made it a practice 
to assign Negro employees only to its lowest paying, 
laboring jobs. That practice has apparently been 
abandoned, and the Company does not engage in overt 
discrimination. Now, however, Duke requires that 
applicants for assignment or transfer to previously 
“white” jobs have either completed high school or 
scored satisfactorily on two commercially available 
paper-and-pencil aptitude tests. Use of these two
four who have a high school diploma or its equivalent, since 
they too were originally assigned to the Labor Department on 
account of race, and continued to work in that Department 
until well after the effective date of Title VII.



11

standards violates Section 703(a)(2) of the Civil 
Rights Act of 1964 because neither has been shown 
fairly to predict successful performance of the jobs 
for which they are used, and both operate to dis­
qualify substantially higher percentages of Negro 
applicants than white.

1. Lower federal courts have consistently endorsed 
the proposition that the ongoing effects of past racial 
discrimination may be remedied under Title VII. 
Courts of appeals for the Fifth, Sixth, Eighth, and, 
in this case Fourth, Circuits, as well as a number of 
district courts, have required abandonment or modi­
fication of facially neutral practices because they 
perpetuated the effects of earlier overt discrimina­
tion. The seniority systems 7 and the union member­
ship and job referral restrictions 8 which have been 
held illegal by other federal courts, like the high 
school completion and test requirements at issue here, 
retarded advancement of tracks into jobs from which 
they formerly were excluded and were not required 
by business necessity.

2. Respondent contends, and the majority of the 
court of appeals agreed, that the tests are protected 
by the “ professionally developed ability test” pro­
vision in Section 703(h). This expansive reading of 
the provision to permit use of racially exclusionary

7 Local 189, United Papermakers and Paperworkers v. United 
States, 416 F. 2d 980 (C.A. 5), certiorari denied, 397 U.S. 919; 
Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va.).

8 United States v. IB E W  Local 38, 63 Lab. Cas. 9463 (C.A. 
6); United States v. Sheet Metal Workers Int. Ass'n, Local U. 
36, 416 F. 2d 123 (C.A. 8); Local. 53 of Int. Ass'n of Heat <& 
Frost I. & A. Wkrs. v. Vogler, 407 F, 2d 1047 (C.A. 5).



12

tests unrelated to ability to perform the job applied 
for conflicts with its language and is unsupported by 
its legislative history. The position of the Equal Em­
ployment Opportunity Commission that the provision 
permits only job-related ability testing should have 
been upheld by the court of appeals.

ARGUMENT

I

T H E COM PANY’S H IG H  SCHOOL/TEST REQUIREM ENT FOR 
EM PLOYM ENT IN  TRADITIONALLY A L L-W H ITE DEPART­
M ENTS VIOLATES SECTION 7 0 3 ( a ) ( 2 )  OP T H E CIVIL 
RIGHTS ACT OP 1 9 6 4

A. A N  EM PLO Y M EN T PRACTICE TH A T  APPEARS NEUTRAL BUT HAS 
T H E  EFFECT OF D ISCRIM IN A TIN G  ON T H E  BASIS OF RACE W ITH O U T 

BUSINESS NECESSITY IS  PROHIBITED

Petitioners’ basic contention, with which we agree, 
is that the rights created by Congress when it enacted 
Title Y II of the Civil Rights Act of 1964 may no 
more be frustrated by apparently neutral employment 
practices, not justified by business necessity, which 
have racially exclusionary effects than by overtly dis­
criminatory practices.

Federal courts have long looked beyond the ap­
parent neutrality of practices to discern and remedy 
interference with federally protected rights to equal­
ity of treatment. As early as 1915, in Guinn v. United 
States, 238 U.S. 347, this Court invalidated a pro­
vision of a state constitution which, although neutral 
on its face, operated to limit the rights of Negroes 
to vote, in violation of the Fifteenth Amendment. 
This Court has since consistently invalidated “ so­



13

phisticated as well as simple-minded modes of dis­
crimination” 9 in education and voting rights, each 
time finding behind the apparent racial neutrality 
of the challenged statute or procedure, the promotion 
or perpetuation of racial discrimination.

That employment rights under Title Y II are leg­
islatively created, in contrast to the constitutionally 
protected rights involved in the voting and school 
cases,10 does not justify less judicial protection of 
them, as courts of appeals interpreting Title Y II 
have uniformly recognized. For example, in Local 
189, United Papermakers and Paper-workers v. United 
States, 418 F. 2d 980 (C.A. 5), certiorari denied, 397 
U.S. 919, the court held that Title Y II prohibited 
a seniority system under which promotions were made 
on the basis of “in-job” rather than “in-plant” se­
niority. The effect of this system was to discriminate 
in favor of whites hired at the same time or later 
for jobs from which Negroes, who presumably would 
have qualified for them, were excluded when they 
were hired. The same court similarly ruled that re­
striction of union membership to relatives of current 
members, who were all white, was prohibited by Title 
YII. Local 53 of Int. Ass’n of Heat & Frost I. & A.

9 Lane v. Wilson, 307 U.S. 268, 275; see, e.g., Louisiana v. 
United States, 380 U.S. 145: Goss v. Board of Education, 373 
U.S. 683; Monroe v. Board of Commissioners, 391 U.S. 450. See, 
also, Smith  v. Texas, 311 U.S. 128, 132.

10 But cf. Gaston County v. United States, 395 U.S. 285. The 
right being enforced there—the right to vote without satisfying 
a literacy requirement—is a legislatively created right which, 
although constitutionally permitted, was not in itself constitu­
tionally mandated.

403- 139— 70----------- 3



14

WJcrs. v, Yogler, 407 F. 2. 1047 (C.A. 5). Cf. Kotch 
v. Board of River Port Pilot Commissioners, 330 
U.S. 552. And two counts of appeals have declared 
invalid union referral systems which, accorded pri­
ority to union members and applicants with prior 
vTork experience where the union had permitted 
only whites to obtain such membership or experi­
ence.11 District courts have generally reached similar 
results.12 Indeed, in an analogous decision, a Massa­
chusetts district court held that the Fourteenth 
Amendment prohibits a public employer from decid­
ing among applicants on the basis of scores on tests 
which are not job-related.13

In each case, the courts have found that the dis­
criminatory employment practice was not shown to be 
necessary to the “ safe and efficient operation” of the 
business. Local 189, supra, 416 F. 2d at 989. Sin­
cere but unsupported assertions by management of 
the general desirability of a given practice do not 
meet this test of strict necessity. Where criteria oper­
ate to exclude proportionately more Negroes than

11 United States v. Sheet Metal Workers Int. Ass'n. Local U. 
36, supra, and United' States v. IB E W  Local 38, supra. See 
also Marcus Jones v. Zee Way Motor Freight, Inc.. No. 464- 
69 (C.A. 10), decided August 17, 1970.

12 Quarles v. Philip Morris, Inc., supra; Dobbins v. Local 
212, IB E W , 292 F. Supp. 413 (S.D. O hio); Clark v. American 
Marine Corporation, 304 F. Supp. 603 (E.D. L a .); Robinson, 
et al. v. P. Lorillard Co., 62 Lab. Cas. *19423 (M.D. N .C.); 
but see United States v. H. K. Porter Co., 296 F. Supp. 40 
(N J). Ala.), appeal pending (C.A. 5, No. 27,703); Colbert v. 
II. K. Corp. (N.D. Ga., Civ. No. 11599, decided July 6, 1970).

13 Arrington v. Massachusetts Bay Transportation Authority, 
306 F. Supp. 1355 (I). Mass.).



15

whites, the courts under Title Y II have insisted that 
the criteria be predictive of success in performance. 
An example of a valid criterion suggested by the court 
of appeals for the Fifth Circuit was that typists 
pass a typing test. Local 189, supra, 416 F. 2d at 989. 
And the court of appeals for the Eighth Circuit 
held that union journeymen tests must “ be designed 
to test the ability of the applicant to do that work 
usually required of a journeyman.” United States v. 
Sheet Metal Workers, Int. Ass’n, Local II. 36, 416 F. 
2d at 136. Accord, Dobbins v. Local 212, IBEW , 292 
F. Supp. 413, 452, 461 (S.D. Ohio).

The court of appeals below held, consistently with 
these decisions, that the high school/test requirement 
for transfer from the Labor Department could not 
be applied to Negroes who were hired prior to the 
time when completion of high school became a pre­
requisite to initial placement in other jobs because 
whites hired contemporaneously into those jobs had 
not been subjected to such a requirement. The ma­
jority refused, however, to eliminate the high school 
and test requirements as applied to Negroes hired 
after they were made applicable to all employees. I t 
held that Duke had adopted the high school require­
ment with a “genuine business purpose” in mind and 
without any “ intention to discriminate against Negro 
employees.”

This focus on the employer’s motive, rather than its 
need, is, we submit, what apparently misled the court. 
For the congressional purpose in enacting Title YII 
was—as its heading “ Equal Employment Opportu­
nities” suggests—to accomplish economic results, not



16

merely to influence motives or feelings. Discriminatory 
“employment practices”—not attitudes—are declared 
unlawful. As Judge Sobeloff’s dissenting opinion in 
this case points out (A. 245a-246a), the congressional 
objective is not achieved by an interpretation of the 
Act which would merely assure those discriminatorily 
excluded from jobs for which they are, in fairness, 
qualified that the employer is discriminating in good 
faith.14 The proper interpretation, in our view, is that 
articulated (in a constitutional decision) thirty years 
ago by Mr. Justice Black for a unanimous Court: 
“What the [Act] * * * prohibits is racial discrimi­
nation * * * whether accomplished ingeniously or in­
genuously * * Smith v. Texas, 311 U.S. 128, 132.

B. T H E  H IG H  SCHOOL COM PLETION AND W R ITTEN  TEST REQUIRE­
M EN TS IMPOSED H ER E DISQUALIFY A SUBSTANTIALLY GREATER 
PROPORTION OF NEGROES T H A N  W H ITE S FROM EM PLOY M ENT 

OPPORTUNITIES

Both a high school completion requirement and test­
ing requirements such as those used here generally 
operate to disqualify a greater percentage of Negroes 
than whites from employment opportunities—a result 
which is not surprising in view of the segregated and 
inferior educational opportunities which have been 
afforded Negroes. See Gaston County v. United States, 
395 U.S. 285, 295.

1. The High School Requirement. Reports of the 
Bureau of the Census confirm that proportionately

14 Nor is the fact that the discrimination is not based solely 
on race material, in light of the Act’s explicit legislative history. 
See Brief for the United States as Amicus Curiae in Phillips v. 
Martin Manetta Cory., No. 73, this Term, p. 9.



17

fewer Negroes than whites in the United States have 
completed high school. In 1960, 43.2 percent of whites, 
but only 21.7 percent of nonwhites, in the United 
States who were 25 or older had completed high school.15 
Similar disparity is found in more specific comparisons, 
by sex, or narrower age group.16 Thus, of nonwhite men 
25 to 29 in 1960, only 36.2 percent had completed high 
school; the comparable figure for whites was 62.7 per­
cent.17 The disparity is more marked in North Caro­
lina than in the Nation as a whole. The 1960 census 
figures for that State show that 37 percent of whites 
25 or older had completed high school, while only 14.7 
percent of nonwhites in that age group had done so.18 
Although the level of educational achievement has 
risen for both Negroes and whites in the past ten 
years, the disparity in proportion of high school grad­
uates remains substantial.19

2. The Tests. Both the majority and dissenting 
opinions below were written on the premise that the 
respondent’s testing requirements operate to disqual­

15U.S. Bureau of the Census, Census of the Population: 
1960; Volume 1, Characteristics of the Population; Part 1, 
Table 174, pp. 1-419,1-420.

16 Ibid.
17 Ibid.
18 U.S. Bureau of the Census, Census of the Population: 

1960; Volume 1, Characteristics of the Population; Part 35, 
Table 47, p. 35-167.

19 A recent report prepared jointly by the Bureau of Labor 
Statistics and the Bureau of the Census indicates that, of all 
Negroes 20 and 21 years old in the country in 1969, 57.8 per­
cent had completed high school. Among all whites in the same 
age group, however, 81.7 percent had completed high school. 
Bureau of Labor Statistics Report No. 376: The Social and 
Economic Status of Negroes in the United States, 1969, p. 50.



18

ify Negroes in substantially higher proportions than 
whites “because of Negroes’ cultural and educational 
disadvantages * * *” (A. 216a; see A. 231a-232a). 
As Judge Sobeloff put the matter, “ No one seriously 
questions the fact that, in general, whites fare far 
better on the Company’s alternative requirements than 
blacks” (A. 231a, n. 6). The accuracy of that premise 
is supported both by expert testimony in this case 
(see A. 140a-141a, 154a-155a) and by published 
studies of performance on standardized, paper-and- 
pencil aptitude tests, including those used here.26

These tests verbally measure (or sample) previously 
acquired knowledge and skills, as a basis for pre­
dicting ability to enhance them. Individuals or groups 
who have not had equal opportunity to acquire the 
kinds of knowledge and develop the verbal skills these 
tests record may obviously be expected to fare less well 
on them. To the extent variation in exposure is re­
flected by test scores, their value as an index of ability 
to enhance these skills is diminished* Ktudiesof the
Index.dUnatfyc ability is diminished. Studies of the
Wonderlic Personnel Test, employed here, and similar 
“ standardized” tests tend to bear out this hypothesis 
of bias and show that the mean scores of 
Negroes are predictably lower than those of whites.21 20 21

20 Kirkpatrick, et al., Testing and Fair Employment: Fairness 
and Validity of Personnel Tests fm° Different Ethnic Groups, 
New York University Press, New York, 1968, at p. 5; Cooper 
and Sobol, Seniority and Testing Under Fair Employment 
Laws: A General Approach to Objective Crite'i'ia of Hiring and 
Promotion, 82 Harv. L. Kev. 1598, 1638-1649 (1969).

21 See Cooper and Sobol, supra, at 1640-1641; liuda and Al­
bright, Racial Differences on Selection Instruments Related to 
Subsequent Job Perfomnance, 21 Personnel Psychology 31 
(1968).



19

C. TH ER E IS HO BUSINESS NECESSITY FOR T H E  A PPLICATION HERE 
OE T H E  D IPLO M A /TEST REQ U IREM EN T

The Company did not, and indeed on this record 
could not, show that legitimate business needs justi­
fied its application of the high school completion or 
test requirements to the broad categories of jobs 
involved.

There is no dispute that neither requirement bears 
a demonstrable relationship to successful performance 
of the jobs for which they were used. Both were 
adopted, as the majority below noted, without formal 
study of their relationship to job-performance ability 
(A. 93a). Rather, a vice president of the company 
testified, they were instituted on the company’s judg­
ment that they would generally improve the quality 
of the work force (A. 93a-94a). As previously indi­
cated (supra,, pp. 12-16), however, the test of busi­
ness necessity in this context is a strict one; it is not 
satisfied by the mere profession of a business purpose, 
such as an employer’s self-serving and unsupported 
assertion that it thinks the particular practice in 
question is desirable.

Indeed, here the same vice president acknowledged 
that “ [tjhere is nothing magic about [the high school 
requirement], and it doesn’t work all the time, 
because you can have a man who graduated from 
High School, who is certainly incompetent to go on 
up * * * ” (A. 93a). And the evidence shows that em­
ployees Who have not completed high school or taken 
the tests have continued to perform satisfactorily and 
progress in departments for which the high school and



20

test criteria now are used. Between July 2, 1965, and 
November 14, 1966, for example, the percentage of 
white employees who were promoted but who were 
not high school graduates was nearly identical to the 
percentage of employees in the entire white work 
force who were not high school graduates.22 The pro­
motion record of persons who do not meet the require­
ments thus indicates they are not needed even for the 
limited purpose of insuring that the policy of ad­
vancement within the company is not hampered by 
initial employment of individuals who lack the capac­
ity to perform jobs for which they will be eligible 
in the future.23

There is, in short, no legitimate need in the safe 
and efficient conduct of its business which justifies 
the respondent’s insistence on employees with creden­
tials not shown to be job-related in jobs that were 
previously reserved for whites. Since these unneces­
sary employment requirements have a racially dis­
criminatory effect, they are prohibited by Section 703 
(a)(2) of the Act.

22 The Company’s Answers to Plaintiffs’ Interrogatories show 
that 15 white employees were promoted during that period, of 
whom 5 (33.3%) were not high school graduates. As of April 
29, 1966, there were 82 white employees at Dan River, of whom 
30 (36.6%) were not high school graduates (A. 77b, 83b, 109b, 
126b-127b).

23 We do not believe, in any event, that the company has 
made a sufficient showing of the importance of that policy to 
the success of its operations to justify application of its dis- 
criminatorily exclusionary requirements to the broad spectrum 
of jobs to which they are applied.



21

I I

SECTION 7 0 3 ( H )  OF T H E ACT DOES NOT AUTHORIZE TH E USE 
OF APTITUDE TESTS THAT ARE NOT JOB-RELATED

A. T H E  LANGUAGE OF SECTION 7 0 3  (H )  AND ITS INTERPRETA TION 
BY T H E  EQUAL EM PLO Y M EN T O PPORTUNITY COM M ISSION PRE­

CLUDE TESTS W H IC H  DO NOT PREDICT SUCCESS IN  T H E  JOBS 

FOR W H IC H  T H E Y  ARE GIVEN

The respondent contends that its tests, at least, are 
specifically permitted by Section 703(h) of the Act 
(supra, pp. 2-3), which authorizes use of “profession­
ally developed ability test[s]” that are not “designed, 
intended, or used” to discriminate. The majority 
of the court below accepted this contention that 
Section 703(h) permits tests unrelated to prospective 
job performance, notwithstanding the Equal Em­
ployment Opportunity Commission’s contrary inter­
pretation, to which the Commission has consistently 
adhered, that Section 703(h) authorizes only the use 
of job-related tests.24

24 The Commission’s Guidelines on Employment Testing 
Procedures were adopted on August 24, 1966, and published in 
CCH Employment Practice Guide 16,904. Revised Guide­
lines on Employee Selection Procedures, taking the same 
position on employment tests, effective August 1, 1970. They are 
published at 29 C.F.R. part 1607, and are reprinted in the 
Appendix to petitioners’ brief (pp. 8-11).

Three recent decisions (reported with names omitted) in 
which the Commission applied its job-relatedness standard to 
Employment tests appear in CCH Employment Practice Guide 
|6112 (January 29, 1970); <f6136 (March 17, 1970); |6139 
(February 19, 1970) (challenge to use of Wonderlic Personnel 
and Bennett Mechanical Aptitude tests at issue here). See, also, 
CCH Employment Practice Guide ^17,804.58 (Dec.. 2, 1966)

4 0 3 -1 3 9 — 70- -4



22

The Commission’s interpretation is, of course, en­
titled to great deference from the courts and, since 
it is reasonable and consistent with the purpose of 
Title VII, should prevail. See, e.g., Norwegian Nitro­
gen Products Co. v. United States, 288 U.S. 294, 315; 
Udall v. Tollman, 380 U.S. 1; Bowe v. Colgate-Palm­
olive Co., 416 F. 2d 711 (C.A 7). Not only is this 
interpretation consistent with the statutory language, 
hut it is the only one under which use of the word 
“ability” in the statutory phrase “professionally de­
veloped ability tests” is meaningful. Since any pro­
fessionally developed test measures some “ ability,” 
that word, if it is not to be redundant, should be read 
as a delimiting term which, in context, naturally re­
fers, as the Commission’s guidelines state {supra, 
p. 3), to “ability to perform [the] particular job 
or class of jobs” for which the test is required.25
(reprinted in appendix to petitioners’ brief, pp. 1-2) ; fl7 ,304.55 
(Dec. 6, 1966) (reprinted in appendix to petitioners’ brief, 
pp. 3-5).

25 Moreover, Section 703(e) (1) of Title V II, 42 U.S.C. 2000e- 
2(e)(1), permits employment on the basis of “religion, sex, or 
national origin in those certain instances where religion, sex, 
or national origin is a bona fide occupational qualification rea­
sonably necessary to the normal operation of that particular 
business or enterprise.” The Section significantly omits refer­
ence to race as a criterion for employment, implying a legisla­
tive judgment that race can never be a. bona fide occupational 
qualification. Where, as here, the effect of . employment criteria 
is indirectly to make race a basis of employment by screening 
out a disproportionate number of Negroes, the standard for 
justification of such criteria should surely be no less than that 
specified in Section 703(e)(1) for bona fide occupational quali­
fications—which must, of course, be job-related. See, generally, 
Bi’ief for the United States as Amicus Curiae in Phillips v. 
Martin Marietta Corp., No. 73, this Term.



23

B. T H E  LEGISLATIVE HISTORY OF SECTION 7 0 3 ( H )  INDICATES THAT 

CONGRESS CONTEMPLATED USE OF JOB-RELATED TESTS ONLY

The present Section 703(h) was not contained in 
the House version of the Civil Rights A ct26 but was 
added on the Senate floor during extended debate. 
The controversy in the Senate over testing grew out 
of a February 1964 decision by a hearing examiner 
for the Illinois Fair Employment Practices Commis­
sion in the case of Leon Myart v. Motorola Co.27 The 
examiner ruled that a standardized aptitude test given 
by Motorola to job applicants “does not lend itself to 
equal opportunity to qualify for the hitherto cultur­
ally deprived and disadvantaged groups,” and ordered 
the company to discontinue its use.28

The Motorola case was first brought to the attention 
of the Senate on March 12, 1964, by Senator Robert­
son of Virginia,29 and was a subject of debate during 
the next several months. A number of opponents of 
the civil rights bill, including Senators Ervin,30 
Smathers,31 Holland,32 Hill,33 Tower,34 Talmadge,35

26 The full text of II. 11. 7152, the civil rights bill passed by 
the House on February 10, 1964, annotated to show the changes 
made by the Senate, appears at 110 Cong. Rec, 12807-12817.

27 The decision is reprinted at 110 Cong. Rec. 5662 (1964).
' 28 For an account of the Motorola case, and of the influence 

it had on congressional debate of Title V II, see Ash, The 
Implications of the Civil Rights Act of 1964. for Psychological 
Assessment in Industry, 21 American Psychologist 797 (1966).

29110 Cong. Rec. 5081-5082.
30110 Cong. Rec. 5614-5616.
31110 Cong. Rec. 5999-6000.
32110 Cong. Rec. 7012-7013.
33110 Cong. Rec. 8447.
34110 Cong. Rec. 9024.
35110 Cong. Rec. 9025-9026.



24

Fulbright,36 and Ellender,37 criticized the decision. The 
common thread of concern in this Senate criticism 
was that employers would be precluded from making 
ability to perform a job a condition of employment.

Thus Senator Smathers charged on April 13 that 
Title V II would require employers to “ accept ap­
plicants for jobs irrespective of whether they have 
ability or not” (emphasis added).38

In the same vein Senator Hill on April 20 stated 
that in Motorola, “the Illinois FEPC examiner threw 
merit and ability out the window as employment 
criterions [sic] and forced the company to hire the 
complainant, notwithstanding the fact that he ob­
viously did not possess the professional standards 
necessary to do the job” (emphasis added).39

On April 24, Senators Tower and Talmadge en­
gaged in a colloquy regarding the decision:

Mr. T almadge. * * * Is it not true that the 
decision of the examiner in the Motorola case 
put a premium on ignorance for prospective 
employees, instead of intelligence ?

Mr. T owek. I t  certainly put a premium on 
ignorance. I t  said, in effect, that a test is dis­
criminatory if it discriminates against those 
who are by virtue of intellectual and educa­
tional background incompetent to do a partic­
ular job.

* * * * *

36110 Cong. Rec. 9599-9600.
37 Ibid.
38110 Cong. Rec. 1791; see also, 110 Cong. Rec. 7800.
39110 Cong. Ree. 8447.



25

I t is certainly right and proper for a private 
company to require that a man possess certain 
skills necessary to perform the work required 
by that company, or that he possess a sufficient 
intellect to be trainable to do a specific job.

Mr. T almadge. The bill [Title V II] does not 
guarantee anyone a job at any time, does it?

Mr. T ower. I t  does not guarantee anybody a 
job, but it would compel an employer to hire 
persons whom he does not believe to be com­
petent to perform the work [emphasis added].40

Senator Fulbright, on April 29, remarked:
The Motorola case shows, too, to any reason­

able person what a disastrous thing it would be 
if companies were prohibited from applying 
aptitude tests or any other kind of tests of that 
nature which are intended to test the capacity 
or ability of an applicant for a particular job. 
I t  is a very clear warning of what we could 
expect if this section of the bill were adopted 
[emphasis added].41

Proponents of Title V II sought throughout the 
debate to assure these critics that their fears about 
the implications of Motorola were groundless. They 
insisted that Title VII would have no effect on job- 
related tests. Senator Case, co-manager with Senator 
Clark of the bill on the Senate floor, issued a memo­
randum for the record on March 26, explaining why 
the Motorola result could not be reached under Title 
V II:

40110 Cong. Rec. 9025-9026.
41110 Cong. Rec. 9600.



26
* * * * *

[Ujnlike the hearing examiner’s interpreta­
tion of the Illinois law in the Motorola case, 
title V II most certainly would not authorize 
any requirement that an employer accept an 
unqualified applicant or a less qualified appli­
cant and undertake to give him any additional 
training which might be necessary to enable 
him to fill the job.

Title V II says merely that a covered employer 
cannot refuse to hire someone simply because of 
his color, that is, because he is a Negro. But it ex­
pressly protects the employer’s right to insist that 
any prospective applicant, Negro or white, must 
meet the applicable job qualifications. Indeed, the 
very purpose of title V II  is to promote hiring on 
the basis of job qualifications, rather than on the 
basis of race or color [emphasis added].42 43

Similarly, the Clark-Case Interpretative Memorandum 
of Title VII, submitted for the record on April 8, stated:

There is no requirement in title V II that 
employers abandon bona fide qualification tests 
where, because of differences in background 
and education, members of some groups are 
able to perform better on those tests than mem­
bers of other groups. An employer may set his 
qualifications as high as he likes, he may test 
to determine which applicants have these quali­
fications, and he may hire, assign, and promote 
on the basis of test performance [emphasis 
added]V

42110 Cong. Rec. 6416; also reprinted at 110 Cong. Rec. 7246- 
7247.

43110 Cong. Rec. 7213.



27

Despite these assurances by the bill’s supporters, 
opposing Senators continued to fear that Title VII 
might be construed to prohibit the use of tests to 
determine qualifications for particular jobs if blacks 
failed such job related tests in greater proportions 
than whites. As a result, Senator Tower, on May 19, 
offered a proposed amendment to Section 703(h) :

(h) Notwithstanding any other provision of 
this Title, it shall not be an unlawful employ­
ment practice for an employer to give any 
professionally developed ability test to any in­
dividual seeking employment or being consid­
ered for promotion or transfer, or to act in re­
liance ixpon the results of any such test given 
to such individual, if—

(1) in the case of any individual who is seek­
ing employment with such employer, such test 
is designed to determine or predict whether 
such individual is suitable or trainable with 
respect to his employment in the particular 
business or enterprise involved, and such test 
is given to all individuals seeking similar em­
ployment with such employer without regard 
to the individual’s race, color, religion, sex, or 
national origin, or

(2) in the ease of any individual who is an 
employee of such employer, such test is de­
signed to determine or predict whether such 
individual is suitable or trainable with respect 
to his promotion or transfer within such busi­
ness or enterprise, and such test is given to 
all such employees being considered for similar 
promotion or transfer by such employer with­
out regard to the employee’s race, color, reli­
gion, sex, or national origin.44

44110 Cong. Eec. 11251 (emphasis added).



28

In urging adoption of the amendment, Senator 
Tower argued:

I f  we should fail to adopt language of this 
kind, there could he an Equal Employment Op­
portunity Commission ruling which would in 
effect invalidate tests of various kinds of em­
ployees by both private business and Govern- 
ment to determine the professional competence 
or ability or trainability or suitability of a per­
son to do a job [emphasis added].45

Proponents of the bill who opposed the amendment 
feared that it would make discrimination more diffi­
cult to combat.46 Senator Case’s comment is partic­
ularly instructive:

I f  this amendment were enacted, it could be 
an absolute bar and would give an absolute 
right to an employer to state as a fact that he 
had given a test to all applicants, tvhether it 
was a good test or not, so long as it was pro­
fessionally designed. Discrimination could ac­
tually exist under the guise of compliance with 
the statute [emphasis added].47

The amendment was defeated on a roll call vote,48 
but two days later Senator Tower offered a substitute 
amendment which was adopted verbatim and is now 
the testing provision of Section 703(h). He stated:

This is similar to an amendment which I  offered 
a day or two ago, and which was, I  believe,

46110 Cong. Eec. 13492.
46 See 110 Cong. Eec. 13503-13504.
47110 Cong. Eec. 13504.
48110 Cong. Eec. 13505.



29

agreed upon in principle. But the language was 
not drawn as carefully as it should have been.49

Senator Humphrey responded by announcing that 
“Senators on both sides of the aisle who were deeply 
interested in Title Y II 7 7 50 believed the amendment was 
“in accord with the intent and purpose of that 
title. 7 7 61 I t was adopted by voice vote immediately 
thereafter.52

The debates surrounding testing mid the Motorola 
case thus show that the concern among Senators was 
that Title Y II might operate to limit employers7 
rights to measure job qualifications by using tests. 
All the early criticism focused on this fear, and 
Senator Tower’s first proposed amendment was 
clearly designed to allay it. Senate supporters of the 
bill opposed the amendment, partly because they 
feared it would be misconstrued to permit broad use 
of tests unrelated to job performance, and it was 
defeated. Senator Tower then offered a substitute, 
after persuading the bill’s sponsors that he had re­
drafted the amendment so as to remove this possi­
bility, and it was adopted without substantial opposi­
tion. There is no basis for inferring from this history 
that the job-relatedness standard (which had been 
explicity included in the rejected amendment) was 
not to apply to the tests authorized by the substitute 
amendment. I t  shows, instead, that, as enacted, Sec­
tion 703(h) was believed to be in harmony with “ the 
very purpose of Title Y II [which] is to promote

49110 Cong. Rec. 13724.
50 Ibid.
51 Ibid.
58 Ibid.



30

hiring on the basis of job qualifications * * *” (110 
Cong. Rec. 6416, supra, p. 26) and thus to authorize 
only job-related tests. The court of appeals’ contrary 
holding—that neither tests nor qualifications need be 
job-related even if their effect is discriminatory— 
sanctions unwarranted obstacles to achievement of 
the congressional objective- of equal employment op­
portunities, and should be rejected by this Court.

CONCLUSION

For the foregoing reasons we respectfully urge 
that the judgment of the court below on the question 
here presented should be reversed.

E rw in  jST. Griswold,
Solicitor General.

J erris L eonard,
Assistant Attorney General.

L awrence G. W allace, 
Deputy Solicitor General.

J ohn  F . D ienelt,
Assistant to the Solicitor General.

D avid L. R ose,
D enis F . Gordon,

Attorneys.
S tanley H ebert,

General Counsel,
R ussell Specter,

Deputy General Counsel,
P h il ip  B . S klover,

Attorney,
Equal Employment

Opportunity Commission.

September 1970.
U .S. GOVERNMENT PRINTING OFFICE: 1970