Hale Affidavit and Exhibits (Continued)

    MT. pay HY CITY, SCHOOL DISTRICT BOARD OF 
EDUCATION v». DOYLE 

  

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT 

  No. 75-1278. Argued November 3, 1976—Decided January 11, 1977 

Respondent, an untenured Seather (who had previously been involved in 
an altercation with another teacher, an argument with school cafeteria 
employees, an incident in which he swore at students, and an incident 

in which he made obscene gestures to girl students), conveyed through 
a telephone call to a radio station ‘the substance of a memorandum 
relating to teacher dress and appearance that the school principal had 

circulated to various teachers. The radio station announced the adop- 
tion of the dress code as a news item. Thereafter, petitioner School 
Board, adopting a recommendation of the superintendent, advised 
respondent that he would not be rehired and cited his lack of tact in 

handling professional matters, with specific mention of the radio station 

and obscene-gesture incidents. Respondent then brought this action 

against petitioner for reinstatement and damages, claiming that peti- 

tioner’s refusal to rehire him violated his rights under the First and 

Fourteenth Amendments. Although respondent asserted jurisdiction 

under both 28 U. S. C. §1343 and § 1331, the District Court rested 

jurisdiction only on § 1331. The District Court, which found that the 

incidents involving respondent had occurred, concluded that the tele- 

phone call was “clearly protected by the First Amendment” and that 

because it had played a “substantial part” in petitioners decision not 

to rehire respondent he was entitled to reinstatement with backpay. 

The Court of Appeals affirmed. Petitioner, in addition to attacking 

the District Court’s jurisdiction under § 1331 on the ground that the 

$10,000 jurisdictional requirement of that provision was not satisfied in 

this case, raised an additional jurisdictional issue after this Court had 

granted certiorari and after petitioner had filed its reply brief, claiming 

that respondent’s only substantive constitutional claim arises ander 42 

U. 2 C. § 1983 and that because petitioner School Board is not a “per- 

son” for purposes of § 1983, liability may no more be imposed on it 

where federal jurisdiction rests on § 1331 than where jurisdiction is 

grounded on § 1343. Held: 

1. Respondent’s complaint sufficiently pleaded jurisdiction under 28 

U. 8. C. §1331. Though the amount in controversy thereunder must 

  

    
  

   



  

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  MT. HEALTHY CITY BOARD OF ED. ». DOYLE 

274 Syllabus 

exceed $10,000, even if the District Court had chosen to award only 
compensatory damages, it was far from a “legal certainty” at the time 
of suit that respondent would not have been entitled to more than 
that amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U. S. 283, 
288-289. Pp. 276-277. 

2. Petitioner in making its belated contention concerning § 1983 failed 
to preserve the issue whether the complaint stated a claim upon which 
relief could be granted against it. Because the question involved is 
not of the jurisdictional sort which the Court raises on its own motion, 
it is assumed without deciding that respondent could sue under § 1331 
‘without regard to the limitations imposed by § 1983. Pp. 277-279. 

3. Since under Ohio law the “State” does not include “political 
subdivisions” (a category including school districts), and the record 
shows that a local school board like petitioner is more like a county or 
city than it is an arm of the State, petitioner is not immune from suit 
under the Eleventh Amendment. Pp. 279-281. 

4. Respondent’s constitutional claims are not defeated because he 
did not have tenure. Perry v. Sindermann, 408 U. S. 593. Pp. 283-284. 

/~ 5. That conduct protected by the First and Fourteenth Amendments 

\ 

played a substantial ‘part in the decision not to rehir nt 
does not_neces ssarily amount to _constitutional violation justifying 

* remedial action. The proper (test Js one that protects against the 
invasion of constitutional rights without commanding undesirable con- 
Be not nesaiITY to the assurance of those rights. Since 

  

  

    

pe “protected a was a motivating factor in the peti- 
tioner’s decision not to rehire e him, the District Court should ‘ha e gone — 

on to determine - ‘whether petitioner had shown by a , preponderance. of 
the evidence that it would have reached the same decision even in the 

EE a ae: Teas 

absence o f the prote cted conduct. Pp. 284-287. 

529 F. 2d 524, vacated and remanded 

  

    

     
RErNqQUIST, J, deliveit the opinion for a unanimous Court. 

Philip 8. Olinger argued the cause and filed briefs for 

petitioner. 

Michael H. Gottesman argued the cause for respondent. 

With him on the brief were Robert M. Weinberg, David 
Rubin, Eugene Green, Dennis Haines, Anthony P. Sgambatti 

II, and Barry R. Laine. 

   
   

  

    

      

   

   

    

   

    

    

    

    

      

    
   
   

        

  

  

  



  
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OCTOBER 

Opinion of the Court 429 U.S. 

Mr. Justice ReuNquisT delivered the opinion of the 

Court. 

Respondent Doyle sued petitioner Mt. Healthy Board of 

Education in the United States District Court for the South- 

ern District of Ohio. Doyle claimed that the Board’s refusal 

to renew his contract in 1971 violated his rights under the 
First and Fourteenth Amendments to the United States 
Constitution. After a bench trial the District Court held 
that Doyle was entitled to einstatement with backpay. 
The Court of Appeals for the Sixth Circuit affirmed the 

judgment, 529 F. 2d 524, and 3 we granted the Board’s petition 

for certiorari, 425 U. S. 933, to consider an admixture of 

jurisdictional and constitutional claims. 

I 

Although the respondent’s complaint asserted jurisdiction 

under both 28 U. S. C. §1343 and 28 U. S. C. § 1331, the 

District Court rested its jurisdiction only on § 1331. Peti- 

tioner’s first jurisdictional contention, which we have little 

difficulty disposing of, asserts that the $10,000 amount in 

controversy required by that section is not satisfied in this 

case. 
The leading case on this point is St. Paul Indemnity Co. 

v. Red Cab Co., 303 U. S. 283 (1938), which stated this test: 

“[Tlhe sum claimed by the plaintiff controls if the 

claim is apparently made in good faith. It must appear 

to a legal certainty that the claim is really for less than 

the jurisdictional amount to justify dismissal. The in- 

ability of plaintiff to recover an amount adequate to give 

the court jurisdiction does not show his bad faith or 

oust the jurisdiction.” Id., at 288-289. (Footnotes 

omitted.) 

We have cited this rule with approval as recently as 

Weinberger v. Wiesenfeld, 420 U. S. 636, 642 n. 10 (1975), 

and think it requires disposition of the jurisdictional ques- 

  

  

  

 



  

  

  

      

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MT. HEALTHY CITY BOARD OF ED. v. DOYLE 

274 Opinion of the Court 

tion tendered by the petition in favor of the respondent. 

At the time Doyle brought this action for reinstatement and 

$50,000 damages, he had already accepted a job in a different 

school system paying approximately $2,000 per year less 

than he would have earned with the Mt. Healthy Board had 

he been rehired. The District Court in fact awarded Doyle 

compensatory damages in the amount of $5,158 by reason 

of income already lost at the time it ordered his reinstate- 
ment. Even if the District Court had chosen to award 
only compensatory damages and not reinstatement, it was far 

from a “legal certainty” at the time of suit that Doyle 

would not have been entitled to more than $10,000. 

II 

The Board has filed a document entitled “Supplemental 

Authorities” in which it raises quite a different “jurisdie- 

tional” issue from that presented in its petition for certiorari 

and disposed of in the preceding section of this opinion. 
Relying on the District Court opinion in Weathers v. West 

Yuma County School Dist., 387 F. Supp. 552, 556 (Colo. 1974), 
the Board contends that even though Doyle may have met 
the jurisdictional amount requirement of § 1331, it may not 

be subjected to liability in this case because Doyle’s only 
substantive constitutional claim arises under 42 U. S. C. 

§ 1983. Because it is not a “person” for purposes of § 1983, 
the Board reasons, liability may no more be imposed on it 
where federal jurisdiction is grounded on 28 U. S. C. § 1331 
than where such jurisdiction i is grounded on 28 U. S. C. § 1343. 

The District Court avoided this issue by reciting that it 

had not “stated any conclusion on the possible Monroe- 
Kenosha problem in this case since it seems that the case 

is properly here as a § 1331 case, as well as a § 1983 one.” 

App. to Pet. for Cert. 14a—15a. This reference to our deci- 

sions in Monroe v. Pape, 365 U. S. 167 (1961), and City of 

Kenosha v. Bruno, 412 U. S. 507 (1973), where it was held 

a 

     

  

        

     

  

                

  

  

    

      

    

      
    
    

   

                                    

    



  

OCTOBER TERM, 1976 

Opmion of the Court 420 U.S 

that a municipal corporation is not a suable “person” under 

§ 1983, raises the question whether petitioner Board in this 

case is sufficiently like the municipal corporations in those 

cases so that it, too, is excluded from § 1983 liability. 

The quoted statement of the District Court makes clear 

its view that if the jurisdictional basis for the action is 

§ 1331, the limitations contained in 42 U. S. C. §1983 do not 

apply. The Board argues, on the contrary, that since Con- 
gress in § 1983 has expressly “created a remedy relating to 

violations of constitutional rights under color of state law, 
one who seeks to recover for such 1 violations is bound by the 
limitations contained in § 1983 ‘whatever jurisdictional sec- 

tion he invokes. 
The question of whether the Board's arguments should 

prevail, or whether as respondent urged in oral argument, 

we should, by analogy to our decision in Bivens v. Six Un- 

known Fed. Narcotics Agents, 403 U. S. 388 (1971), imply a 

cause of action directly from the Fourteenth Amendment 

which would not be subject to the limitations contained in 

§ 1083, is one which has never been decided by this Court. 

Counsel for respondent at oral argument suggested that it is 

an extremely important question and one which should not 

be decided on this record. We agree with respondent. 

The Board has raised this question for the first time in 

a document filed after its reply brief in this Court. Were it 

in truth a contention that the District Court lacked ju- 

risdiction, we would be obliged to consider it, even as we 

are obliged to inquire sua sponte whenever a doubt arises 

as to the existence of federal jurisdiction. Liberty Mutual 

Ins. Co. v. Wetzel, 424 U. 8. 737, 740 (1976); Louis- 

ville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 

(1908). And if this were a § 1983 action, brought under 

the special jurisdictional provision of 28 U. S. C. §1343 

which requires no amount in controversy, it would be appro- 

priate for this Court to inquire, for jurisdictional purposes, 

 



  

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  MT. HEALTHY CITY BOARD OF ED. ». DOYLE 

274 Opinion of the Court 

whether a statutory action had in fact been alleged. City of 
Kenosha v. Bruno, supra. However, where an action is brought 
under § 1331, the catchall federal-question provision requiring 
in excess of $10,000 in controversy, jurisdiction is sufficiently 
established by allegation of a claim under the Constitution or 
federal statutes, unless it “clearly appears to be immaterial 
and made solely for the purpose of obtaining jurisdic- 
tion ....” Bell v. Hood, 327 U. 8S. 678, 682 (1946); 
Montana-Dakota Utilities Co. v. Northwestern Pub. Serv. Co., 
341 U. S. 246, 249 (1951). 

Here respondent alleged that the Board had violated his 
rights under the First and Fourteenth Amendments and 
claimed the jurisdictionally necessary amount of damages. 
The claim that the Board is a “person” under § 1983, even 
assuming the correctness of the Board’s argument that the 
§ 1331 action is limited by the restrictions of § 1983, is 
not so patently without merit as to fail the test of Bell 
v. Hood, supra. Therefore, the question as to whether the 
respondent stated a claim for relief under § 1331 is not of 
the jurisdictional sort which the Court raises on its own 
motion. The related question of whether a school district 
is a person for purposes of § 1983 is likewise not before us. 

We leave those questions for another day, and assume, with- 

out deciding, that the respondent could sue under § 1331 
without regard to the limitations imposed by 42 U. S. C. 
§ 1983. ET el hn 

  Ese aa = = 

The District Court found it unnecessary to decide whether 
the Board was entitled to immunity from suit in the federal 
courts under the Eleventh Amendment, because it decided 
that any such immunity had been waived by Ohio statute 
and decisional law. In view of the treatment of waiver 

by a State of its Eleventh Amendment immunity from 
suit in Ford Motor Co. v. Dept. of Treasury, 323 U. S. 459, 
464-466 (1945), we are less sure than was the District Court 

  

     

   

            

   

  

   

                

   

        

   

      

   

      

  

      

  



  

OCTOBER TERM, 1976 

Opinion of the Court 429 U. 8. 

that Ohio had consented to suit against entities such as 

the Board in the federal courts. We prefer to address instead 

the question of whether such an entity had any Eleventh 

Amendment immunity in the first place, since if we conclude 

that it had none it will be unnecessary to reach the ques- 

tion of waiver. 
The bar of the Eleventh Amendment to suit in federal 

courts extends to States and state officials in appropriate 

circumstances, Edelman v. Jordan, 415 U. S. 651 (1974); 

Ford Motor Co. v. Dept. of Treasury, supra, but does not ex- 
tend to counties and similar municipal corporations. See 
Lincoln County v. Luning, 133 U. S. 529, 530 (1890); 

Moor v. County of Alameda, 411 U. S. 693, 717-721 (1973). 

The issue here thus turns on whether the Mt. Healthy 

Board of Education is to be treated as an arm of the State 

partaking of the State’s Eleventh Amendment immunity, or 

is instead to be treated as a municipal corporation or other 

political subdivision to which the Eleventh Amendment does 

not extend. The answer depends, at least in part, upon 

the nature of the entity created by state law. Under Ohio 
law the “State” does not include “political subdivisions,” and 

“political subdivisions” do include local school districts. 

Ohio Rev. Code Ann. § 2743.01 (Page Supp. 1975). Petitioner 

is but one of many local school boards within the State of 

Ohio. Tt is subject to some guidance from the State Board 

of Education, Ohio Rev. Code Ann. § 3301.07 (Page 1972 and 

Supp. 1975), and receives a significant amount of money from 

the State. Ohio Rev. Code Ann. § 3317 (Page 1972 and Supp. 

1975). But local school boards have extensive powers to issue 

bonds, Ohio Rev. Code Ann. § 133.27 (Page 1969), and to levy 

taxes within certain restrictions of state law. Ohio Rev. Code 

Ann. §§ 5705.02, 5705.03, 5705.192, 5705.194 (Page 1973 and 

Supp. 1975). On balance, the record before us indicates 

that a local school board such as petitioner is more like 

a county or city than it is like an arm of the State. We 

  

 



  

  

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MT. HEALTHY CITY BOARD OF ED. ». DOYLE 281 

274 Opinion of the Court 

therefore hold that it was not entitled to assert any Eleventh 

Amendment immunity from suit in the federal courts. 

IV 

Having concluded that respondent’s complaint sufficiently 

pleaded jurisdiction under 28 U. S. C. § 1331, that the Board 

has failed to preserve the issue whether that complaint stated 

a claim upon which relief could be granted against the 

Board, and that the Board is not immune from suit under 

the Eleventh Amendment, we now proceed to consider the 

merits of respondent’s claim under the First and Fourteenth 

Amendments. 

Doyle was first employed by the Board in 1966. He 

worked under one-year contracts for the first three years, 

and under a two-year contract from 1969 to 1971. In 1969 

he was elected president of the Teachers’ Association, in 

which position he worked to expand the subjects of direct 

negotiation between the Association and the Board of Edu- 

cation. During Doyle’s one-year term as president of the 

Association, and during the succeeding year when he served 

on its executive committee, there was apparently some ten- 

sion in relations between the Board and the Association. 

Beginning early in 1970, Doyle was involved in several 

incidents not directly connected with his role in the Teach- 

ers’ Association. In one instance, he engaged in an argument 

with another teacher which ealminated i in the other teacher’s 

slapping him. Doyle subsequently refused to accept an 

apology and insisted upon some punishment for the other 

teacher. His persistence in the matter resulted in the sus- 

pension of both teachers for one day, which was followed 

by a walkout by a number of other teachers, which in turn 

resulted in the lifting of the suspensions. 

On other occasions, Doyle got into an argument with 

employees of the school cafeteria over the amount of spaghetti 

which had been served him; referred to students, in con- 

  

  

 



  

      

OCTOBER TERM, 1976 

Opinion of the Court 

nection with a disciplinary complaint, as “sons of bitches”; 

and made an obscene gesture to two girls in connection with 

their failure to obey commands made in his capacity as 

cafeteria supervisor. Chronologically the last in the series 

of incidents which respondent was involved in during his 

employment by the Board was a telephone call by him 

to a local radio station. It was the Board's consideration 

of this incident which the court below found to be a violation 

of the First and Fourteenth Amendments. 
In February 1971, the principal circulated to various 

teachers a memorandum relating to teacher dress and appear- 

ance, which was apparently prompted by the view of some 

in the administration that there was a relationship between 

teacher appearance and public support for bond issues. 

Doyle’s response to the receipt of the memorandum—on a 

subject which he apparently understood was to be settled 

by joint teacher-administration action—was to convey the 

substance of the memorandum to a disc jockey at WSAI, 

a Cincinnati radio station, who promptly announced the 

adoption of the dress code as a news item. Doyle subse- 

quently apologized to the principal, conceding that he should 

have made some prior communication of his eriticism to 

the school administration. 

Approximately one month later the superintendent made 

his customary annual recommendations to the Board as to 

the rehiring of nontenured teachers. He recommended that 

Doyle not be rehired. The same recommendation was made 

with respect to nine other teachers in the district, and in 

all instances, including Doyle's, the recommendation was 

adopted by the Board. Shortly after being notified of 

this decision, respondent requested a statement of reasons 

for the Board’s actions. He received a statement citing 

“a notable lack of tact in handling professional matters 

which leaves much doubt as to your sincerity in establishing 

good school relationships.” That general statement was fol- 

  
  

 



  
  

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MT. HEALTHY CITY BOARD OF ED. ». DOYLE 283 

274 Opinion of the Court 

lowed by references to the radio station incident and to the 
obscene-gesture incident.’ 

The District Court found that all of these incidents had 

in fact occurred. It concluded that respondent Doyle's tele- 
phone call to the radio station was “clearly protected by the 

First Amendment,” and that because it had played a “sub- 
stantial part” in the decision of the Board not to renew 
Doyle’s employment, he was entitled to reinstatement with 

backpay. App. to Pet. for Cert. 12a—13a. The District Court 

did not expressly state what test it was applying in determin- 

ing that the incident in question involved conduct protected 

by the First Amendment, but simply held that the commu- 
nication to the radio station was such conduct. The Court 

of Appeals affirmed in a brief per curiam opinion. 529 F. 2d 

524. 

Doyle’s claims under the First and Fourteenth Amend- 

ments are not defeated by the fact that he did not have 

tenure. Even though he could have been discharged for 
no reason whatever, and had no constitutional right to a 
hearing prior to the decision not to rehire him, Board of 

Regents v. Roth, 408 U. Sr 564 (1972), he may nonetheless 

  

  

  

establish a claim to reinstatement if the decision not to 
  

rehire him was made by reason of his exercise of constitu- 
  

  

14T, You have shown a.notable lack of tact in handling professional 

matters which leaves much doubt as to your sincerity in establishing good 

school relationships. 
“A. You assumed the responcbiliy to notify W. S. A. I. Radio Station 

in regards to the suggestion of the Board of Education that teachers 
establish an appropriate dress code for professional people. This raised 
much concern not only within this community, but also in neighboring 

communities. 

“B. You used obscene gestures to correct students in a situation in the 
cafeteria causing considerable eoncern among those students present. 

“Sincerely yours, 

“Rex Ralph 
“Superintendent” 

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OCTOBER TERM, 1976 

Opmion of the Court 

tiquallynratected First Amendment freedoms. Perry v. 

Sindermann, 408 U. S. 593 (1972). So 

That question of whether speech of a government em- 

ployee is constitutionally protected expression necessarily 

entails striking “a balance between the interests of 

the teacher, as a citizen, in commenting upon matters of 

public concern and the interest of the State, as an employer, 

in promoting the efficiency of the public services it performs 
through its employees.” Pickering v. Board of Education, 
391 U. S. 563, 568 (1968). There is no suggestion by the 
Board that Doyle violated any established policy, or that its 

reaction to his communication to the radio station was any- 
thing more than an ad hoe response to Doyle’s action in mak- 

ing the memorandum public. We therefore accept the Dis- 

trict Court’s finding that the communication was protected 
by the First and Fourteenth Amendments. We are not, how- 
ever, entirely in agreement with that court’s manner of 
reasoning from this finding to the conclusion that Doyle is 

entitled to reinstatement with backpay. 

The District Court made the following “conclusions” on 

this aspect of the case: 

  

“1) If a non-permissible reason, e. g., exercise of 

First Amendment rights, played a substantial part in the 

decision not to renew—even in the face of other per- 

missible grounds—the decision may not stand (citations 

omitted). 

“2) A non-permissible reason did play a substantial 

part. That is clear from the letter of the Superintendent 

immediately following the Board’s decision, which stated 
two reasons—the one, the conversation with the radio 
station clearly protected by the First Amendment. A 
court may not engage in any limitation of First Amend- 

ment rights based on ‘tact’ —that is not to say that the 
‘tactfulness’ is irrelevant to other issues in this case.” 
App. to Pet. for Cert. 12a-13a. 

 



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MT. HEALTHY CITY BOARD OF ED. v. DOYLE 285 

274 Opinion of the Court 

At the same time, though, it stated that 

“[i]n fact, as this Court sees it and finds, both the Board 

and the Superintendent were faced with a situation 

in which there did exist in fact reason . . . independent 

of any First Amendment rights or exercise thereof, to 
not extend tenure.” Id., at 12a. 

Since respondent Doyle had no tenure, and there was 
therefore not even a state-law requirement of “cause” or 

“reason” before a decision could be made not to renew his 
employment, 1t 1s not clear what the District Court meant 

by this latter statement. Clearly the Board legally could 

have dismissed respondent had the radio station incident 

never come to its attention. One plausible meaning of the 

court’s statement is that the Board and the Superintendent 

not only could, but in fact would have reached that decision 

had not the constitutionally protected incident of the tele- 

phone call to the radio station occurred. We are thus brought 
to the issue whether, even if that were the case, the fact, that 
the protected Tet played a “substantial part” in the 

actTatdeeistor—not—to TeNEW Would necessarily amount to a 

constitutional violation justifying remedial action. We think 

that it would not. 
Arte of causation which focuses solely on whether pro- 

tected conduct played a part, “substantial” or otherwise, in 

a decision not to rehire, could place an employee in a bet 
ter position as a result of the exercise of constitutionally 
protected conduct than he would have occupied had he 

done nothing. The difficulty. with the rule enunciated by 
the District Court is that it would require reinstatement in 

cases where a dramatic and perhaps abrasive incident is in- 

evitably on the minds of those responsible for the decision 

to rehire, and does indeed play a part in that decision— 

even if the same decision would have been reached had the 

incident not occurred. The constitutional principle at stake 

is sufficiently vindicated if such an employee is placed in no 

  

  

  

  

  

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286 OCTOBER TERM, 1976 

    

Opinion of the Court 429 U.S. 

   worse a position than if he had not engaged in the conduct. 
A borderline or marginal candidate should not have the 

employment question resolved against him because of con- 

stitutionally protected conduct. But that same candidate 
ought not to be able, by engaging in such conduct, to pre- 

vent his employer from assessing his performance record 

and reaching a decision not to rehire on the basis of that 
record, simply because the protected conduct makes the 
employer more certain of the correctness of its decision. 

This is especially true where, ; as the District Court, observed 
was the case here, the current; decision to rehire will accord 
“tenure.” The Tone: term consequences of an award 
of tenure are of great moment both to the employee and 
to the employer. They are too significant for us to hold 

that the Board in this case would be precluded, because 

it considered constitutionally protected conduct in deciding 

not to rehire Doyle, from attempting to prove to a trier of 

fact that quite apart from such conduct Doyle's record was 
such that he would not have been rehired in any event. 

In other areas of constitutional law, ‘this Court has found 

it necessary to formulate a test of causation which distin- 

guishes between a result caused by a constitutional violation 

and one not so caused. We think those are instructive in 
formulating the test to be applied here. 

In Lyons v. Oklahoma, 322 U. S. 596 (1944), the Court 
held that even though the first confession given by a defend- 
ant had been involuntary, the Fourteenth Amendment did 
not prevent the State from using a second confession ob- 

tained 12 hours later if the coercion surrounding the first 
confession had been sufficiently dissipated as to make the 

second confession voluntary. In Wong Sun v. United States, 

371 U. S. 471, 491 (1963), the Court was willing to assume 
that a defendant’s arrest had been unlawful, but held 

that “the connection between the arrest and the statement 
[given several days later] had ‘become so attenuated as to 

 



     

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MT. HEALTHY CITY BOARD OF ED. v. DOYLF 

274 Opinion of the Court 

dissipate the taint.’ Nardone v. United States, 308 U. S. 
338, 341.” Parker v. North Carolina, 397 U. S. 790, 796 
(1970), held that even though a confession be assumed 
to have been involuntary in the constitutional sense of the 
word, a guilty plea entered over a month later met the test 
for the voluntariness of such a plea. The Court in Parker 
relied on the same quoted language from Nardone, supra, 
as did the Court in Wong Sun, supra. While the type of 
causation on which the taint cases turn may differ some- 
what from that which we apply here, those cases do suggest 
that the proper test to apply in the present context is one 
which likewise protects against the invasion of constitutional 
rights without commanding undesirable consequences not 
necessary to the assurance-ef-those~rights: 

nitially, in this case, the burden was properly placed 
upon respondent to show that his conduct was constitu- 
tionally protected, and that this conduct was a “substantial 
factor”—or, to put it in other words, that it was a “motivat- 
ing factor”? in the Board’s decision not to rehire him. Re- 
spondent having carried that burden, however, the District 
Court should have gone on to determine whether the Board 
had shown by a preponderance of the evidence that it 
would have reached the same decision as to respondent’s re- 

  

employment even in the absence of the protected conduct. 
  We cannot tell Irom the District Court opinion and con 
clusions, nor from the opinion of the Court of Appeals 
affirming the judgment of the District Court, what con- 
clusion those courts would have reached had they applied 
this test. The judgment of the Court of Appeals is there- 
fore vacated, and the case remanded for further proceedings 
consistent with this opinion. 

So ordered. 

  

2See Arlington Heights v. Metropolitan Housing Dev. Corp., ante, at 
270-271, n. 21. 

    

     

     

   

      

   
   

            

  
  

  

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has commanded is that any tests used must measure the person 
for the job and not the person in the abstract. 

The judgment of the Court of Appeals is, as to that portion of 
the judgment appealed from, reversed. 

MR. JusTICE BRENNAN took no part in the consideration or deci 
sion of this case. 

INTERNATIONAL BROTHERHOOD OF TEAMSTERS v. UNITED STATES 
~ A31US. 324,975 Cu T895, 3TL F=oems96 (1977) 
  

MR. Justice STEWART delivered the opinion of the Court. 
This litigation brings here several important questions under 

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 
42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V). The issues grow 
out of alleged unlawful employment practices engaged in by an 
employer and a union. The employer is a common carrier of 
motor freight with nationwide operations, and the union repre- 
sents a large group of its employees. The District Court and 
the Court of Appeals held that the employer had violated Title 
VII by engaging in a pattern and practice of employment dis- 
crimination against Negroes and Spanish-surnamed Americans, 
and that the union had violated the Act by agreeing with the 
employer to create and maintain a seniority system that per- 
petuated the effects of past racial and ethnic discrimination. , . . 

  

I 
The United States brought an action in a Tennessee federal 

court against the petitioner T. I. M. E..D. C, Inc. (the com- 
pany) pursuant to § 707 (a) of the Civil Rights Act of 1964, 42 
U.S.C. § 2000e-6(a).l8 The complaint charged that the company 

[11 At the time of suit the statute provided as follows: 
“(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this sub- chapter, and that the pattern or practice is of such a nature and is intended 

to 4 

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geny the full exercise of the rights herein described, the Attos ney General 
ay bring a civil action in the appropriate district court of the United 

t filing with it a complaint (1) signed by him {or in his ahsence 
} setting forth facts np rtaining to such pattern 

  

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3) requesting such relief, inch ding an pplication for a 
permanent or temporary injunction, restraining order or other order against 3 ell OF od tae the person or persons responsible for such pattern or practice, as he deems Ne : necessary to insure the full enjoyment of the rights herein described.” 

Section 707 was amended by § 5 of the Equal Employment Opportunity : Val ") 5 ES TaTaTa / 1] . 2 
Act of 1972, 86 Stat. 107, 42 U. S. C. § 2000¢-6 (c) (Supp. V), to give the : Equal Employment Opportunity Commission. ther than the Attorney § i Ftd : of shad i Soi . x . | 

{ General, the authority to bring pattern or practice” suits under that section 1 3 against private-sector employers. In 1974, an order was entered in this action 4 o i i ’ 

  

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DISCRIMINATION CLAIMS 443 

had followed discriminatory hiring, assignment, and promotion 
policies against Negroes at its terminal in Nashville. Tenn. The 
Government brought a second action against the company almost 
three years later in a federal district court in Texas, charging a 

pattern and practice of employment discrimination against 
Negroes and Spanish-surnamed persons throughout the company’s 
transportation system. The petitioner International Brotherhood 
of Teamsters (the union) was joined as a defendant in that suit. 
The two actions were consolidated for trial in the Northern 
District of Texas. : 

The central claim in both lawsuits was that the company 
had engaged in a pattern or practice of discriminating against 
minorities in hiring so-called line drivers. Those Negroes and 
Spanish-surnamed persons who had been hired, the Govern- 
ment alleged, were given lower paying, less desirable jobs as 
servicemen or local city drivers, and were thereafter discriminated 
against with respect to promotions and transfers.” In this con- 
nection the complaint also challenged the seniority system estab- 
lished by the collective-bargaining agreements between the 
employer and the union. The Government sought a general in- 
junctive remedy and specific “make whole” relief for all individual 
discriminatees, which would allow them an opportunity to trans- 
fer to line-driver jobs with full company seniority for all purposes. 

The cases went to trial"! and the District Court found that 
the Government had shown “by a preponderance of the evidence 

    

  

substituting the EEOC for the United States but retaining the United States 
as a party for purposes of jurisdiction, appealability, and related matters. 
See 42 U. S. C. § 2000e-6 (d) (Supp. V). 

Bl Line drivers, also known as over-theroad drivers, engage in long- 
distance hauling between company terminals. They compose a separate 
bargaining unit at T. I. M. E.-D. C. Other distinct bargaining units include 
servicemen, who service trucks, unhook tractors and trailers, and perform 
similar tasks; and city operations, composed of dockmen, hostlers, and city 
drivers who pick up and deliver freight within the immediate area of a par- 
ticular terminal. All of these employees were represented by the petitioner 
International Brotherhood of Teamsters, : 

[4] Following the receipt of evidence, but before decision, the Govern- 
ment and the company consented to the entry of a Decree in Partial Resolu- 
tion of Suit. The consent decree did not constitute an adjudication on the 
merits. The company agreed, however, to undertake a minority recruiting pro- 
gram; to accept applications from all Negroes and Spanish-surnamed Ameri- 
cans who inquired about employment, whether or not vacancies existed, and 
to keep such applications on file and notify applicants of job openings; to 
keep specific employment and recruiting records open to inspection by the 
Government and to submit quarterly reports to the District Court; and to 
adhere to certain uniform employment qualifications respecting hiring and 
promotion to line driver and other jobs. 

The decree further provided that future job vacancies at any T. I. M. E.- 
D. C. terminal would be filled first “[b]y those persons who may be found 
by the Court, if any, to be individual or class discriminatees suffering the 
present effects of past discrimination because of race or national origin 

  

   

                                                                          

   
    



  
  

444 EMPLOYMENT DISCRIMINATION LAW 

that T. I. M. E.-D. C. and its predecessor companies were engaged 
in a plan and practice of discrimination in violation of Title 
VII . . ..” The court further found that the seniority system 
contained in the collective-bargaining contracts between the 
company and the union violated Title VII because it “operate[d] 
to impede the free transfer of minority groups into and within 
the company.” Both the company and the union were enjoined 
from committing further violations of Title VII. 

With respect to individual relief the court accepted the 
Government's basic contention that the “affected class” of dis- 
criminatees included all Negro and Spanish-surnamed incumbent 
employees who had been hired to fill city operations or serviceman 
jobs at every terminal that had a line-driver operation.'® All of 
these employees, whether hired before or after the effective date 
of Title VII, thereby became entitled to preference over all 
other applicants with respect to consideration for future vacancies 
in linedriver jobs. Finding that members of the affected class 
had been injured in different degrees, the court created three 
subclasses. Thirty persons who had produced “the most con- 
vincing evidence of discrimination and harm” were found to 
have suffered “severe injury.” The court ordered that they be 
offered the opportunity to fill line-driver jobs with competitive 
seniority dating back to July 2, 1965, the effective date of Title 
VIL'™ A second subclass included four persons who were “very 
possibly the objects of discrimination” and who “were likely 
harmed,” but as to whom there had been no specific evidence of 
discrimination and injury. The court decreed that these persons 

prohibited by Title VII of the Civil Rights Act of 1964.” Any remaining 
vacancies could be filled by “any other persons,” but the company obligated 
itself to hire one Negro or Spanish-surnamed person for every white person 
hired at any terminal until the percentage of minority workers at that termi- 
nal equaled the percentage of minority group members in the population 
of the metropolitan area surrounding the terminal. Finally, the company 
agreed to pay $89,500 in full settlement of any backpay obligations. Of 

  

    
  

this sum, individual payments not exceeding $1,500 were to be paid to 
“alleged individual and class discriminatees” identified by the Government. 

The Decree in Partial Resolution of Suit narrowed the scope of the 
litigation, but the District Court still had to determine whether unlawful 
    
     

  

    

   

    

discrimination had occurred. If so, the Court had to identify the actual 
di natees entitled to fll future job vacancies under the decree. The 

  y of the collective-b argaining contract's seniority system also remained 
for decision, as did the question whether any discriminatees should be 
awardec yuitable relief such as retroactive seniority. 

vals 
Yai 

lief for Negroes and Spanish-surnamed 
ate on which that termi- 

wember as a line driver. 

ass had joined the co npany after July 2, 1965, it 

employment rather than the effective date of 

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DISCRIMINATION CLAIM 1S 445 

were entitled to fill vacancies in ine-driving jobs with competitive 
1. 

petit 
seniority as of January 14, 1971, the date on which the Govern- 

     

  

ment had filed its systemwide lawsuit. Finally, there were over 
300 remaining members of the affected class as to whom theré 
was “no evidence to show that these individuals were either 

harmed or not harmed individually.” The court ordered that they 

be considered for line-driver jobs ahead of any applicants from 

the general public but behind the two other subclasses. Those in 

the third subclass received no retroactive seniority; their com: 

petitive seniority as line drivers would begin with the date they 
were hired as line drivers. The court further decreed that the 

right of any class member to fill a line-driver vacancy was suhject 
to the prior recall rights of laid-off line drivers, which under 

the collective-bargaining agreements then in effect extended 

for three years. 
xy The Court of Appeals for the Fifth Circuit agreed with the 

basic conclusions of the District Court: that the corupany had 
engaged in a pattern or practice of employment discrimination 
and that the seniority system in the collective-bargaining agree- 
ments violated Title VII as applied to victims of prior discrimina- 
tion. United States v. T. 1. M. E.-D. C., Inc., 517 F. 2d 299. The 
appellate court held, however, that the relief ordered by the 
District Court was inadequate. Rejecting the District Court's 
attempt to trisect the affected class, the Court of Appeals held 
that all Negro and Spanish-surnamed incumbent employees were 
entitled to bid for future line-driver jobs on the basis of their 
company seniority, and that once a class member had filled a job, 
he could use his full company seniority—even if it predated the 
effective date of Title VII—for all purposes, including bidding 

and layoff. This award of retroactive seniority was to be limited 
only by a “qualification date” formula, under which seniority 
could not be awarded for periods prior to the date when (1) a 
line-driving position was vacant, and (2) the class member met (or 
would have met, given the opportunity) the qualifications for 
employment as a line driver.” Finally, the Court of Appeals 
modified that part of the District Court’s decree that had subjected 
the rights of class members to fill future vacancies to the recall 
rights of laid-off employees. Holding that the three-year priority 
in favor of laid-off workers “would unduly impede the eradication 
of past discrimination,” id., at 322, the Court of Appeals ordered 
  

[12] For example, if a class member began his tenure with the company 
on January 1, 1966, at which time he was qualified as a line driver and a 
line-driving vacancy existed, his competitive seniority upon becoming a 
line driver would date back to January 1, 1966. If he became qualified 
or if a vacancy opened up only at a later date, then that later date would 
be used. 

    

     

    
   

    

  

   

    
   

      

      
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
     

       



  
  

446 EMPLOYMENT DISCRIMINATION LAW 

that class members be allowed to compete for vacancies with 
laid-off employees on the basis of the class members’ retroactive 
seniority. Laid-off line drivers would retain their prior recall 
rights with respect only to “purely temporary” vacancies. Ibid. 

The Court of Appeals remanded the case to the District 
Court to hold the evidentiary hearings necessary to apply these 
remedial principles. We granted both the company’s and the 
union’s petitions for certiorari to consider the significant ques- 
tions presented under the Civil Rights Act of 1964, 425 U.S. 990. 

  

Consideration of the question whether the company engaged 
in a pattern or practice of discriminatory hiring practices involves 
controlling legal principles that are relatively clear. The Govern- 
ment’s theory of discrimination was simply that the company, in 
violation of § 703 (a) of Title VII, regularly and purposefully 
treated Negroes and Spanish-surnamed Americans less favor- 
ably than white persons. The disparity in treatment allegedly 
involved the refusal to recruit, hire, transfer, or promote minority 
group members on an equal basis with white people, particularly 
with respect to line-driving positions. The ultimate factual issues 
are thus simply whether there was a pattern or practice of such 
disparate treatment and, if so, whether the differences were “racial- 
ly premised.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 
805 n. 18.013) 

[15] “Disparate treatment” such as alleged in the present case is the most 
easily understood type of discrimination. The employer simply treats some 
people less favorably than others because of their race, color, religion, sex, 
or national origin. Proof of discriminatory motive is critical, although it 
can in some situations be inferred from the mere fact of differences in 
treatment. See, e. g., Village of Arlington Heights v. Metropolitan Housing 
Dev. Corp., 429 U.S. 252, 265-266. Undoubtedly disparate treatment was 
the most obvious evil Congress had in mind when it enacted Title VIL See, 
e. g., 110 Cong. Rec. 13088 (1964) (remarks of Sen. Humphrey) (“What the 
bill does . . . is simply to make it an illegal practice to use race as a factor in 
denying employment. It provides that men and women shall be employed 

Catholic citizens, not as protestant 
ored citizens, but as citizens of the 

    

    1y be distinguished from claims that 
olve employment practices that are 

   

   
hy eir of different groups but that in fact fall 

1a gron n sther and cannot be justified by business 
sity. . of « itory motive, we have held, is not required 
r a dis pact Compare, e. g., Griggs v. Duke Power Co. 

  

PMD: theory. z 
J 

» with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 
802-806. See generally Schlei & Grossman, Employment Discrimination Law 

     



    

  

  
  

DISCRIMINATION CLAIMS 447 

As the plaintiff, the Government bore the initial burden of 

making out a prima facie case of discrimination. Albemarle 

Paper Co. v. Moody, 422 U S. 405, 425; McDonnell Douglas Corp. 

a systemwide v. Green, supra at 802. And because it alleged ; 

ce of resistance to the full enjoyment of Title 
“4 

© 

pattern or practi 

VII rights, the Government ultimately had to prove more than 

the mere occurrence of isolated or “accidental” or sporadic dis- 

criminatory acts. It had to establish by a preponderance of the 
J ~ ba 

panys standard 

      

evidence that racial! discrimination was the com 

operating procedure- the regular rather than the unusual 

practice. 

We agree with the District Court and the Court of Appeals 

that the Government carried its burden of proof. As of March 

81, 1971, shortly after the Government filed its complaint alleging 

systemwide discrimination, the company had 6,472 employees. Of 

these, 314 (5%) were Negroes and 257 (4%) were Spanish-sur- 

named Americans. Of the 1,828 line drivers, however, there 

were only 8 (0.4%) Negroes and 5 (0.83%) Spanish-surnamed 

persons, and all of the Negroes had been hired after the litigation 

had commenced. With one exception—a man who worked as a 

line driver at the Chicago terminal from 1950 to 1959—the com- 

pany and its predecessors did not employ a Negro on a regular 

basis as a line driver until 1969. And, as the Government showed, 

  

1-12 (1976); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and 

the Concept of Employment Discrimination, 71 Mich. L. Rev. 59 (1972). 

Either theory may, of course, be applied to a particular set of facts. 

(161 The “pattern or practice” language in § 707 (a) of Title VII, supra 

...n. 1, was not intended as a term of art, and the words reflect only their 

usual meaning. Senator Humphrey explained: 

“[A] pattern or practice would be present only where the denial of rights 

consists of something more than an isolated, sporadic incident, but is repeated, 

routine, or of a generalized nature. There would be a pattern or practice if, 

for example, a number of companies or persons in the same industry or 

line of business discriminated, if a chain of motels or restaurants practiced 

racial discrimination thr i ughout all or a signi ,or if a 

company repeatedly and regul¥Ty engaged in acts prohibited by the statute.            
. A 

“The point is that single, insignificant, isolated acts of discrimination by 
a single business would not justify a finding of a pattern or practice . ..." 
110 Cong. Rec. 14270 (1964). . : 

This interpretation of “pattern or practice” appears throughout the 
legislative history of §707 (a), and is consistent with the understanding of 
the identical words as used in similar federal legislation. See id., at 12946 
remarks of Sen. Magnuson)’ (referring to § 206 (a) of the Civil Rights Act 

of 1964, 42 U. S. C. §206 (a)); id., at 13081 (remarks of Sen. Case), id., at 

14239 (remarks of Sen. Humphrey), id., at 15895 (remarks of Rep. Celler). 
See also United States v. Jacksonville Terminal Co., 451 F. 2d 418, 438, 441 

(CA5); United States v. Ironworkers Local 86, 443 F. 2d 544, 552 (CA9); 

United States v. West Peachtree Tenth Corp. 437 F. 2d 221, 227 (CA5); 

United States v. Mayton, 335 F. 2d 153, 158-159 (CA3). 

     

                      

   

                  

   

   
   
   

                

   

 



  

  

448 EMFLOYMENT DISCRIMINATION LAW 

even in 1971 there were terminals in areas of substantial Negro 

population where all of the company’s line drivers were white.1? 
A great majority of the Negroes (839) and Spanish-surnamed 
Americans (789) who did work for the company held the lower- 
paying city operations and serviceman jobs,''® whereas only 399 
of the nonminority employees held jobs in those categories. 

The Government bolstered its statistical evidence with the 
testimony of individuals who recounted over 40 specific instances 
of discrimination. Upon the basis of this testimony the District 
Court found that “[n]Jumerous qualified black and Spanish-sur- 
named American applicants who sought line-driving jobs at the 
company over the years had their requests’ ignored, were given 
false or misleading information about requirements, opportuni- 
ties, and application procedures, or were not considered and hired 
on the same basis that whites were considered and hired.” Minor- 
ity employees who wanted to transfer to line-driver jobs met with 
similar difficulties.!'? 

  

The company’s principal response to this evidence is that 
statistics can never in and of themselves prove the existence of 
  

(17 In Atlanta, for instance, Negroes composed 22.359, of the population 
in the surrounding metropolitan area and 51.319, of the population in the 
city proper. The company’s Atlanta terminal employed 57 line drivers. 
All were white. In Los Angeles, 10.849, of the greater metropolitan popu- 
lation and 17.889 of the city population were Negro. But at the company’s 
two Los Angeles terminals there was not a single Negro among the 374 
line drivers. The proof showed similar disparities in San Francisco, Denver, 
Nashville, Chicago, Dallas, and at several other terminals. 

[18] Although line-driver jobs pay more than other jobs, and the District 
Court found them to be “considered the most desirable of the driving-jobs,” 
it is by no means clear that all employees, even driver employees, would 
prefer to be line drivers. . . . Of course, Title VII provides for equal 
opportunity to compete for any job, whether it is thought better or worse 
than another. See, e. g., United States v. Hayes Internat’l Corp., 456 F. 2d 
112, 118 (CA5); United States v. National Lead Co., 438 F. 2d 935, 939 
(CAS). 

119] "Two exai nples are illustrative: 

George Taylor, a Negro, worked for the company as a city driver in 
Los Ange les, beginning late in 1566. In 1968, after hearing that a white 
city driver had transferred to a line-driver job, he told the terminal mana- 
ger that he also would like to consider line driving. The manager replied 
that there would be “a lot of problems on the road . . . with different 
people, Caucasian, et cetera,” and stated “I don't feel the company is 
ready for this right now. . . . Give us a little time. It will come around, 

  

you know.” Mr. Taylor made simila requests some months later and 

got similar responses. He was never offered a line-driving job Or an 

application. 

Feliberto Truj No wor ked as a dockman at the company's Denver JE 
terminal. When he app tied for a linedriver job in 1967, he was told by a 
personnel officer that he had one strike against him. He asked what that 

vas and was told: “You're a Chicano, and as far as we know, there isn’t a 

Chicano driver in the system.” 

  

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a pattern or practice of discrimination, or even establish a prinia 
. “£.: 2 er Aah Yz 13 imi . wes $b 3 7h Ly Oo facie case shifting to the employer the burden of rebutting the 

inference raised by the figures. But, as even our brief summary 
of the evidence shows, this was not a case in which the Covern 

ment relied on “statistics alone.” The individuals who testified 
wh? about their personal experiences with the company broug 

cold numbers convincingly to life. 

  

In any event, our cases make it unmistakably clear that 

“[s]tatistical analyses have served and will continue to serve an 

is a disputed issue. Mayor of Philadelphia v. Educational! Equality 
League, 415 U.S. 605, 620. See also McDonnell Douglas Corp. v. 

Green, supra at 805. Cf. Washington v. Davis, 426 U.S. 229, 241- 

242. We have repeatedly approved the use of statistical proof, 
where it reached proportions comparable to those in this case, to 

establish a prima facie case of racial discrimination in jury selec- 
tion cases, see, e. g., Turner v. Fouche, 396 U.S. 346; Hernandez 

v. Texas, 347 U.S. 475; Norris v. Alabama, 2904 U.S. 587. Statistics 

are equally competent in proving employment discrimination. 
  

[20] Petitioners argue that statistics, at least those comparing the racial 
composition of an employer's work force to the composition of the popula- 
tion at large, should never be given decisive weight in a Title VII case 
because to do so would conflict with §703(j) of the Act, 42 U. S. C. 
§ 2000(e)-2 (j). That section provides: 

“Nothing contained in this subchapter shall be interpreted to require 
any employer . . . to grant preferential treatment to any individual or to 
any group because of the race . . . or national origin of such individual or 
group on account of an imbalance which may exist with respect to the total 
number or percentage of persons of any race . . . or national origin em- 
ployed by any employer . . . in comparison with the total number or per- 
centage of persons of such race . . . or national origin in any community, 
State, section, or other area, or in the available work force in any com- 
munity, State, section, or other area.” 

The argument fails in this case because the statistical evidence was not 
offered or used to support an erroneous theory that Title VII requires an 
employer's work force to be racially balanced. Statistics showing racial or 
ethnic imbalance are probative in a case such as this one only because such 
imbalance is often a telltale sign of purposeful discrimination; absent 
explanation, it is ordinarily to be expected that nondiscriminatory hiring 
Practices will in time result in a work force more or less representative of 
the racial and ethnic composition of the population in the community from 
which employees are hired, Evidence of longlasting and gross disparity 
between the composition of a work force and that of the general popula- 
tion thus may be significant even though §703 (j) makes clear that Title 
VII imposes no requirement that a work force mirror the general popula- 
tion. See, e. g., United States v. Sheet Metal Workers Local 36, 416 F. 2d 
123, 127 n. 7. Considerations such as small sample size may, of course, 
detract from the value of such evidence, see, e. g., Mayor of Philadelphia v. 
Educational Equality League, 415 U. S. 605, 620-621, and evidence showing 
that the figures for the general population might not accurately reflect the 
pool of qualified job applicants would also be relevant. Ibid. See gen- 

  

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450 SMPLOYMENT DISCRIMINATION LAW 

We caution only that statistics are not irrefutable; they come in 

infinite variety and, like any other kind of evidence, they may be 

rebutted. In short, their usefulness depends on all of the sur- 

rounding facts and circumstances. See, e. g., Hester v. Southern R. 

Co.,497 F.2d 1874, 1379-1381 (CAb). 

In addition to its general protest against the use of statistics 
in Title VII cases, the company claims that in this case the 
statistics revealing racial imbalance are misleading because they 
fail to take into account the company’s particular business 
situation as of the effective date of Title VII. The company 
concedes that its line drivers were virtually all white in July 
1965, but it claims that thereafter business conditions were such 
that its work force dropped. Its argument is that low personnel 
turnover, rather than post-Act discrimination, accounts for more 
recent statistical disparities. It points to substantial minority 
hiring in later years, especially after 1971, as showing that any 
pre-Act patterns of discrimination were broken. 

The argument would be a forceful one if this were an em- 
ployer who, at the time of suit, had done virtually no new hiring 
since the effective date of Title VIL. But it is not. Although the 
company’s total number of employees apparently dropped some- 
what during the late 1960's, the record shows that many line 
drivers continued to be hired throughout this period, and that 
almost all of them were white? To be sure, there were improve- 
ments in the company’s hiring practices. The Court of Appeals 
commented that “T. I. M. E-D. C.’s recent minority hiring 
progress stands as a laudable good faith effort to eradicate the 

effects of past discrimination in the area of hiring and initial 
assignment.”?2 517 F. 2d, at 316. But the District Court and the 

erally Schlei & Grossman, Employment Discrimination Law, 1161-1193 
(1976). 

“Since the passage of the Civil Rights Act of 1964, the courts have 
frequently relied upon statistical evidence to prove a violation. . . . In 
many cases the only available avenue of proof is the use of racial statistics 
to uncover clandestine and covert discrimination by the employer or union 
involved.” United States v. Ironworkers Local 86, 443 F. 2d 544, 551 
(CA9). See also e.g, Pettway v. American Cast Iron Pipe Co., 494 F.2d 
211, 225 n. 34 (CA5); Brown v. Gaston County Dyeing Mach. Co., 457 
F. 2d 1377, 1382 (CA4); United States v. Jacksonville Terminal Co., 45] 
F. 2d 418, 442 (CA3); Parham v. Southwestern Bell Tel. Co., 433 F. 24 
421, 426 (CAS); Jones v. Lee Way Motor Freight, Inc., 431 F. 2d 245, 
247 (CA10). £ 

{21} Between July 2, 1965, and January 1, 1669, hundreds of line drivers 
were hired systemwide, either from the outside or from the ranks of 
employees filling other jobs within the company. None was a Negro. Gov- 

t Exh. 204. 

  

      
IFor example, in 1971 the company hired 116 new line drivers, of 

whom 16 were Negro or Spanishsurnamed Americans. Minority em- 
ployees composed 7.19, of the company's systemwide work force in 1967 

  

  
 



    

DISCRIMINATION CLAIMS 451 

Court of Appeals found upon substantial evidence that the 
company had engaged in a course of discrimination that cor 
tinued well after the effective date of Title VII. The company’s 
later changes in its hiring and promotion policies could be little 
comfort to the victims of the earlier post-Act discrimination, and 

could not erase its previous illegal conduct or its obligation to 

The District Court and the Court of Appeals, on the basis 
of substantial evidence, held that the Government had proved 
a prima facie case of systematic and purposeful employment dis- 
crimination, continuing well beyond the effective date of Title 
VIL. The company’s attempts to rebut that conclusion were held 
to be inadequate. For the reasons we have summarized, there 

and 10.5%, in 1972. Minority hiring increased greatly in 1972 and 1973, 
presumably due at least in part to the existence of the consent decree. See 
517 F. 2d, at 316 n. 31. 

[231 The company’s narrower attacks upon the statistical evidence—that 
there was no precise delineation of the areas referred to in the general 
population statistics, that the Government did not demonstrate that min- 
ority populations were located close to terminals or that transportation 
was available, that the statistics failed to show what portion of the minority 
population was suited by age, health, or other qualifications to hold trucking 
jobs, etc.—are equally lacking in force. At best, these attacks go only to 
the accuracy of the comparison between the composition of the company's 
work force at various terminals and the general population of the sur- 
rounding communities. They detract little from the Government’s further 
showing that Negroes and Spanish-surnamed Americans who were hired 
were overwhelmingly excluded from line-driver jobs. Such employees were 
willing to work, had access to the terminal, were healthy and of working 
age, and often were at least sufficiently qualified to hold city-driver jobs. 
Yet they became line drivers with far less frequency than whites. See, e. gs 
Pre-trial Stipulation 14, summarized at 517 F. 2d, at 312 n. 24 (of 2,919 
whites who held driving jobs in 1971, 1,802 (629) were line drivers and 
L117 (389%) were city drivers; of 180 Negroes and Spanish-surnamed 
Americans who held driving jobs, 13 (79%) were line drivers and 167 (93%) 
were city drivers). 

In any event, fine tuning of the statistics could not have obscured the 
glaring absence of minority line drivers. As the Court of Appeals re- 
marked, the company’s inability to rebut the inference of discrimination 
came not from a misuse of statistics but from “the inexorable zero.” 517 
F. 2d, at 315, SES SEE na 

[24] The company’s evidence, apart from the showing of recent changes in 
hiring and promotion policies, consisted mainly of general statements that 
it hired only the best "qualified applicants. But “affirmations of good 
faith in making individual selections are insufficient to dispel a prima facie 
case of systematic exclusion.” Alexander v. Louisiana, 405 U. S. 625, 632. 

The company also attempted to show that all of the witnesses who 
testified to specific instances of discrimination either were not discriminated 
against or suffered no injury. The Court of Appeals correctly ruled that 
the trial judge was not bound to accept this testimony and that it com- 
mitted no error by relying instead on the other overpowering evidence in 
the case, 517 F. 2d, at 315. The Court of Appeals was also correct in 

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is no warrant for this ( Court to disturb the findings of the District 

Court and the Court of . Appeals on this basic issue. 

[ That portion of the Court's opinion concluding that section 

703 (h) immunizes seniority systems created prior to, as well as 
after, the effective date of Title VII if there is no showing that 
the systems had their genesis in overt racial discrimination or 
had not been maintained free of illegal purposes is set forth 
infra, p. 590.] 

  

Our conclusion that the seniority System does not violate 
Title VII will necessarily affect the temedy granted to individual 
employees on remand of this litigation to the District Court. 
Those employees who suffered only pre-Act discrimination are 
not entitled to relief, and no person may be given retroactive 
seniority to a date earlier than the effective date of the Act. Several 
other questions relating to the appropriate measure of individual 
relief remain, however, for our consideration. 

The petitioners argue generally that the trial court did not 
err in tailoring the remedy to the “degree of injury” suffered 
by each individual employee, and that the Court of Appeals’ 
“qualification date” formula sweeps with too broad a brush by 
granting a remedy to employees who were not shown to be actual 
victims of unlawful discrimination. Specifically, the petitioners 
assert that no employee should be entitled to relief until the 
Government demonstrates that he was an actual victim of the 
company’s discriminatory practices; that no employee who did 

not apply for a line-driver job should be granted retroactive 
competitive seniority; and that no employee should be elevated 
to a line-driver job ahead of any current line driver on layoff 
status. We consider each of these contentions separately. 

A 

The petitio ners’ first contention is in substance that the Gov- 

ernment’s burden of proof in a pattern or practice case must be 
equivalent to that outlined in McDonnell Douglas v. Green, 

supra. Since the Government introduced specific evidence of 
company discrimination against only some 40 employees, they 
argue that the District Court properly refused to award retro- 

     

  

the view that individual “proof concerning each class member's specific 

injury was ppropriately left to proceedings to determine individual relief. 
In a suit brought by the Government under § 707 (a) of the Act the District 

Court's initial concern is in deciding whether the Government has proved 
2 i - bd - - 

that the defendant has engaged in a pattern or practice of discriminato ee # vw oO j | | 4 

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DISCRIMINATION CLAIMS 453 

. 
1 

active seniority to the remainder of the class of minority ini- 

cumbent employees. 

In McDonnell Douglas the Court considered ‘‘the 

allocation of proof in a private, non-class action challenging em- 

ployment discrimination.” 411 US., at 800. We held that an 

individual Title VII complainant must carry the initial burden 

of proof by establishing a prima fac 
ere involved, we concluded that this burden 

t 1 

    

  

p 

  

ie case of racial discrimination 

1 
| hd 3 

was met by showing that a qua ified applicant, who was a member 

of a racial minority group, had unsuccessfully sought a job for 

   

which there was a vacancy and for which the employer con- 

tinued thereafter to seek applicants with similar qualifications 

This initial showing justified the inference that the minority 
~riiinitv for reasons 

applicant was denied an employment opportunity for reasons 

prohibited by Title VII, and therefore shifted the burden to the 

employer to rebut that inference by offering some legitimate, 

nondiscriminatory reason for the rejection. Id., at 802. 

The company and union seize upon the McDonnell Douglas 

pattern as the only means of establishing a prima facie case of 

individual discrimination. Our decision in that case, however, did 

not purport to create an inflexible formulation. We expressly 

noted that “[t]he facts necessarily will vary in Title VII cases, 

and the specification . . . of the prima facie proof required from 

[a plaintiff] is not necessarily applicable in every respect to differ- 

ing factual situations.” 411 U.S., at 802 n. 13. The importance of 

McDonnell Douglas lies not in its specification of the discrete 

elements of proof there required, but in its recognition of the 

general principle that any Title VII plaintiff must carry the 
initial burden of offering evidence adequate to create an infer- 

ence that an employment decision was based on a discriminatory 

criterion illegal under the Act. 

In Franks v. Bowman Transportation Co. [424 U.S. 747 
(1976)], the Court applied this principle in the context of a class 
action. The Franks plaintiffs proved, to the satisfaction of a 

district court, that Bowman Transportation Company “had en- 
  

(441 The McDonnell Douglas case ‘involved an individual complainant 
seeking to prove one instance of unlawful discrimination. An employer's 
isolated decision to reject an applicant who belongs to a racial minority 
does not show that the rejection was racially based. Although the McDonnell 
Douglas formula does not require direct proof of discrimination, it does 
demand that the alleged discriminatee demonstrate at least that his re- 
jection did not result from the two most common legitimate reasons on 
which an employer might rely to reject a job applicant: an absolute or 
relative lack of qualifications or the absence of a vacancy in the job sought. 
Elimination of these reasons for the refusal to hire is sufficient, absent other 
explanation, to create an inference that the decision was a discriminatory 
one, 

  

   

     



  
      

454 EMPLOYMENT DISCRIMINATION LAW 

gaged in a pattern of racial discrimination in various company 
policies, including the hiring, transfer, and discharge of em- 
ployees.” 424 U.S., at 751. Despite this showing, the trial court 
denied seniority relief to certain members of the class of dis- 
criminatees because not every individual had shown that he was 
qualified for the job he sought and that a vacancy had been avail- 
able. We held that the trial court had erred in placing this burden 
on the individual plaintiffs. By “demonstrating the existence of a 
discriminatory hiring pattern and practice” the plaintiffs had 
made out a. prima facie case of discrimination against the individ- 
ual class members; the burden therefore shifted to the employer 
“to prove that individuals who reapply were not in fact victims 
of previous hiring discrimination.” 424 U S., at 772. The Franks 
case thus illustrates another means by which a Title VII plaintiff's 
initial burden of proof can be met. The class there alleged a 
broad-based policy of employment discrimination: upon proof of 
that allegation there were reasonable grounds to infer that in- 
dividual hiring decisions were made in pursuit of the discrimina- 
tory policy and to require the employer to come forth with 
evidence dispelling that inference.[4? 

Although not all class actions will necessarily follow the 
Franks model, the nature of a pattern or practice suit brings 
it squarely within our holding in Franks. The plaintiff in a 
pattern or practice action is the Government, and its initial 
burden is to demonstrate that unlawful discrimination has been 
a regular procedure or policy followed by an employer or group 
of employers. . . . At the initial, “liability” stage of a pattern 
or practice suit the Government is not required to offer evidence 
that each person for whom it will ultimately seek relief was a 

[45] The holding in Franks that proof of a discriminatory pattern and 
practice creates a rebuttable presumption in favor of individual relief is 
consistent with the manner in which presumptions are created generally. 
Presumptions shifting the burden of proof are often created to reflect 
judicial evaluations of probabilities and to conform with a party’s superior 
access to the proof. See C. McCormick, Handbook of the Law of Evidence 
§§ 337, 343 (E. Cleary ed. 1972); James, Burdens of Proof, 47 Va. L. Rev. 
51, 61 (1961). See also Keyes v. School Dist. No. 1, 413 U.S. 189, 208-209. 
These factors were present in Franks. Although the prima facie case did 

nonstrate that all of the employer's decisions were part 
and practice, it did create a greater 

a component of the overall pattern. 

  

not conclusively d 

of the proven d 

likelihood that a 

    

   

   Moreover, the finding of a patte practice changed the position of the 
employer to that of a proven wrongdoe y, the employer was in the 

% Cod Pa WaY Har ives om y ini livialiia vg flOaves we lonie < AI] ? best position to show Wily any individual en I0YEE Was af nied an mploy- 

      

ment op anity. Insofar as the r ted to available vacancies 
or the > evaluation of a nt’s qualifications, the com- 
pany’s records were the most relevant items of proof. If the refusal to 
hire was based on other factors, the employer and its agents 

   

knew best 
what those factors were and the extent to which they influenced the 

  

sion-making process. 

  

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DISCRIMINATION CLAIMS 455 

victim of the employer's discriminatory policy. Its burden is to 

establish a prima facie case that such a policy existed. The burden 
then shifts to the employer to defeat the prima facie showing of 

a pattern or practice by demonstrating that the Government's 
:    

oO 

proof is either inaccurate or insignificant. An employer mi 

show, for example, that the claimed discriminatory pattern is a 

product of pre-Act hiring rather than unlawful post-Act dis- 

crimination, or that during the period it is alleged to have pur- 
     

sued a discriminatory policy it made too few employment de- 
ey nau & : eg SIRS a ry : . Try rags ray ou rot 3 Yr ae cisions to justify the inference that it had engaged in a regular 

practice of discrimination.!! 

If an employer fails to rebut the inference that arises from 
the Government's prima facie case, a trial court may then con- 
clude that a violation has occurred and determine the appropriate 
remedy. Without any further evidence from the Government, a 
court’s finding of a pattern or practice justifies an award of 
prospective relief. Such relief might take the form of an injunc- 
tive order against continuation of the discriminatory practice, an 
order that the employer keep records of its future employment 
decisions and file periodic reports with the court, or any other 
order “necessary to ensure the full enjoyment of the rights” pro- 

tected by Title VII. 

When the Government seeks individual relief for the victims 
of the discriminatory practice, a district court must usually con- 
duct additional proceedings after the liability phase of the trial 
to determine the scope of individual relief. The petitioners’ 
contention in this case is that if the Government-has not, in the 
course of proving a pattern or practice, already brought forth 
specific evidence that each individual was discriminatorily denied 
an employment opportunity, it must carry that burden at the 
second, “remedial” stage of trial. That basic contention was re- 
jected in the Franks case. As was true of the particular facts in 

Franks, and as is typical of Title VII pattern or practice suits, 

the question of individual relief does not arise until it has been 
proved that the employer has followed an employment policy of 
unlawful discrimination. The force of that proof does not dissi- 

  

: 461 The employer's defense must, of course, be designed to meet the 
prima facie case of the Government. We do not mean to suggest that there 
are any particular limits on the type of evidence an employer may use. The 
point is that at the liability stage of a pattern or practice trial the focus 
often will not be on individual hiring decisions, but on a pattern of 
discriminatory decisionmaking. While a pattern might be demonstrated 

by examining the discrete decisions of which it is composed, the Govern- 

ment’s suits have more commonly involved proof of the expected result 
of a regularly followed discriminatory policy. In such cases the employer's 
burden is to provide a nondiscriminatory explanation for the apparently 

discriminatory result. See n. 20, and cases cited therein, supra.    
                                                   



  

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(54 FAAP CSV AEMNT ISi PIAAINI AT [Y I AAS 45 EMPLOYMENT DISCRIMINATION 14 

pate at the remedial stage of the trial. The employer cannot, 
therefore, claim that there is no reason to believe that its individ- 
ual employment decisions were discriminatorily based; it has 
already been shown to have maintained a policy of discriminatory 
decisionmaking. 

The proof of the pattern or practice supports an inference 
that any particular employment decision, during the period in 
which the discriminatory policy was in force, was made in pursuit 
of that policy. The Government need only show that an alleged 
individual discriminatee unsucessfully applied for a job and 
therefore was a potential victim of the proven discrimination. As 
in Franks, the burden then rests on the employer to demonstrate 
that the individual applicant was denied ai employment oppor- 
tunity for lawful reasons. See 424 U.S., at 773 n. 32. 

In Part 1I-A, supra, we have held that po District Court and 

Court of Appeals were not in error in finding that the Govern- 
ment had proved a systemwide pattern and practice of racial and 
ethnic discrimination on the part of the company. On remand, 
therefore, every post-Act minority group applicant” for a line 

driver position will be presumptively entitled to relief, subject 
to a showing by the company that its earlier refusal to place the 
applicant in a line-driver job was not based on its policy of 
discrimination.!®” 

B 

The Court of Appeals’ “qualification date” formula for relief 

did not distinguish between incumbent employees who had ap- 
plied for line-driver jobs and those who had not. The appellate 

court held that where there has been a showing of classwide 
discriminatory practices coupled with a seniority system that per- 
petuates the effects of that discrimination, an individual member 

of the class need not show that he unsuccessfully applied for 

the position from which the class had been excluded. In support 

of its award of relief to all nonapplicants, the Court suggested 

y &« 

that “as a P! atic 1 matier . . . a Ember of the affected class 

may well have CONnci luded that an application for transfer 6) an 
J 4 

all White position such as [line driver] was not worth the candle.” 

JS and were ! 1ired in 

: did not later apply 
t of the group of no napplicants 

   initially a aj P lied for line Qriver jobs 

line-driver jobs, are pa 

PUREE ENE wifi ge (T, Hh Pr TLR Tour 3 ory justification offered by the company will be 

  

lence by the Government that the purported reason 

jection was in fact a pis text for unlawful discrimina- 

uglas v. Green, supra, at 804-806. 

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DISCRIMINATION CLAIMS 457 

+ The question whether seniority relief may be awarded to non 

applicants was left open by our decision in Franks, since the 
1 class at issue in that case was limited to “identifiable applic ants 

who were denied employment . . . after the effective date . . 
of Title VII.” 424 U .S,, at 750. We now decide that an incumbent 
employee's failure to apply for a job is not an inexorable bar to 

; 3 ty + 1: 13 4    
    

1a nappiicants 

be given an opportunit ir difficult task of prov- 
ing that they shou ] 

oa n RETR IW . SER FA ; 
presumptively entitiea t 

i 
i 3 5: oy, ef accordinelv, 

ALLURE] ot) 

(1) 
Analysis of this problem must begin with the premise that 

the scope of a district court’s remedial powers under Title VII 
is determined by the purposes of the Act. . . . : 7 : 

Thus, the Court has held that the purpose of Congress in 
vesting broad equitable powers in Title VII courts was “to make 
possible the ‘fashion[ing] [of] the most complete relief possible,” ”’ 
and that the district courts have “ ‘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 dis- 
crimination in the future.’ ” Albemarle, supra at 421, 418. More 
specifically, in Franks we decided that a court must ordinarily 
award a seniority remedy unless there exist reasons for denying 
relief ‘which, if applied generally, would not frustrate the 
central statutory purposes of eradicating discrimination . . . and 
making persons whole for injuries suffered.’ ” 424 U.S., at 771, 
quoting Albemarle, supra at 421. 

Measured against these standards, the company’s assertion 
that a person who has not actually applied for a job can never 
be awarded seniority relief cannot prevail. The effects of and the 
injuries suffered from discriminatory employment practices are 
not always confined to those who were expressly denied a re- 
quested employment opportunity. A consistently enforced dis- 
criminatory policy can surely deter job applications from those 
who are aware of it and are unwilling to subject themselves to 
the humiliation of explicit and certain rejection. 

If an employer should announce his policy of discrimination 
by a sign reading “Whites Only” on the hiring-office door, his 
victims would not be limited to the few who ignored the sign 
and subjected themselves to personal rebuffs. The same message 
Can be communicated to potential applicants more subtly but 
just as clearly by an employer's actual practices—by his consistent 
discriminatory treatment of actual applicants, by the manner 
In which he publicizes vacancies, his recruitment tec hniques, his 

4 

{ 

b | . i SE og SYREN a YO os ~ 5 d be treated as applicants and therefore are 

                                                  

    



  

458 EMPLOYMENT DISCRIMINATION LAW 

responses to casual or te ntative inquiries, and even by the racial 
or ethnic composition of that part of his workforce from which 
ie has discriminatorily excluded members of minority groups./5! 

When a person’s desire for a job is not translated into a formal 
application solely because of his unwillingness to engage in a 
futile gesture he is as much a victim of discrimination as is he 
who goes through the motions of submitting an application. 

In cases decided under the National Labor Relations Act, 
the model for Title VII's remedial provisions, Albemarle, supra 
at 419; Franks, supra at 769, the National Labor Relations 
Board, and the courts in enforcing its orders, have recognized 
that the failure to submit a futile application does not bar an 
award of relief to a person claiming that he was denied employ- 
ment because of union affiliation or activity. In NLRB v. Nevada 
Consolidated Copper Corp., 316 U.S. 105, this Court enforced 
an order of the Board directing an employer to hire, with retro- 

active benefits, former employees who had not applied for newly 
available jobs because of the employer's well-known policy of 
refusing to hire union members. See In re Nevada Consolidated 
Copper Corp., 26 N.L.R.B. 1182, 1208, 1231. Similarly, when an 
application would have been no more than a vain gesture in light 

of employer discrimination, the Courts of Appeals have enforced 
Board orders reinstating striking workers despite the failure 
of individual strikers to apply for reinstatement when the strike 

ended. E. g., NLRB v. Park Edge Sheridan Meats, Inc., 323 F. 2d 

956 (CA2); NLRB v. Valley Die Cast Corp., 303 F. 2d 64 (CA6); 

Eagle-Picher Mining & Smelting Co. v. NLRB, 119 F. 2d 903 

(CAB). See also Piasecki Aircraft Corp. v. NLRB, 280 F. 2d 575 

Vr NLRB v. Anchor Rome Mills, 228 F. 2d 775 (CA5); 

NLRB v. Lummus Co., 210 F. 2d 377 (C a Consistent with the 
N LRA model, several Coutls of Auch} have held in Title VII 
cases that a nonapplicant can be a victim of unlawful discrimina- 

     
  

  

tion entitled to make-whole relief when an application would 

{51] The farranging effects of subtle discriminat ory prac tices have not 
escaped the tas of the federal courts, which have provi , 
from practices designed to discourage job applications from mino 

members. See, e. g., Franks v. Bowman Transportation Co. 
398, 418419 (CA5) (pr ablic recruitment and advertising), rev'd on other 

unds, 424 U.S. 747; Carter v. Gallagher, 452 F. 2d 313, 319 © CAS) 
riutf 41 ent); U nite a States v. Jacksor 11 ville Ter inal Co; 451 F. 2d 418, 

£58 (CA5) {posting of job vacancies and job qualific cation Te nen 
United States v. Local N . 8, I4B, S$. 0. % AR. : 315 F. Supp. J 202, 1238, 

7 (dissemination of information), aff'd, 443 F. 24 
fective in preventing the 

: 10se persons who 
raged by employ- 

       
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> denial of Title VII relief on the grounda that the Ci 

: . , Spas oa <r Ys a as {a rT a formally applied for the job could exclude from the Act’s 
: : . a - on aii af WRIA, ES AIRE rh YET pT 
te VICES of the most ening nched forms of dis rimming 

Victims of gross and pervasive discrimination could be 
5 © . od a FR) . eo ¥ ~ ~ 
relief precisely because the unlaw ful practices had been so 
£1 i  § 8 . ye - 4 , r as totally to deter job applications from ms S$ 0 

A per se prohibition of relief to nonaj it : I A] s€ p Of rele {Oo 1¢« Pi its 
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SERER put beyond the reach of Cquity NC Most INviaious 

a 1 ie om s a nv So Aa he x73 pape z RR s of employment discrimination—those that extend to the 
ae? ar EO on corny ra rar yas Fr Fe ots ~ = ety hope of selfrealization. Such per se limitation on the 

Title VII would be mani- 
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fguitable powers granted to courts by 
'y inconsistent with the “historic purpose of equity to 

savliete justice’ ” and with the duty of courts in Title VII cases 

~ te render a decree which will so far as possible eliminate the 

Si iminatory effects of the past” ” Albemarle Paper Co. v. 

a 

by 
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bord 

   
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= 10 conclude that a person’s failure to submit an application 
#58 4 job does not inevitably and forever foreclose his entitlement 

: 30 seniority relief under Title VII is a far cry, however, from 
3 = Bolding that nonapplicants are always entitled to such relief. A 

~~ =aapplicant must show that he was 2 potential victim of unlawful 
Ssrimination. Because he is nece ssarily claiming that he was 
tired from applying for the job by the employer's discrimina- 
yyy oy 

*1Y practices, his is the not always easy burden of proving that he 

  

    

    

    

    

  

     

    

    

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uumption discussed in Part 111-A, supra. 
i The Government contends that the evidence it presented in 

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£ 21S a victims of unlawful discrimination “with a fair 

; EX specificity,” and that the Court of Appeals’ determina- 
EE 2a. 4 qualified nonapplicants are presumptively entitled to 

~~ 314 of seniority should accordingly be affirmed. In support 
tontention the Government ites its proof of an extended 

t.and practice of discrimination as evidence that an appli- 

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4450 EMPIOYMENT L RIMINATION LAW 
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cation from a minority employee for a line-driver job would 
have been a vain and useless act. It further argues that since the 
class of nonapplicant discriminatees is limited to incumbent 

employees, it is likely that every class member was aware of the 
futility of seeking a line-driver job and was therefore deterred 
from filing both an initial and a followup application.5? 

We cannot agree. While the scope and duration of the com- 
pany’s discriminatory policy can leave little doubt that the futility 
of seeking line-driver jobs was communicated to the company’s 
minority employees; that in itself is insufficient. The known 
prospect of discriminatory rejection shows only that employees 
who wanted line-driving jobs may have been deterred from apply- 
ing for them. It does not show which of the nonapplicants 
actually wanted such jobs, or which possessed the requisite 
qualifications.” There are differences between city and line- 
driving jobs," for example, but the desirability of the latter is 

not so self-evident as to warrant a conclusion that all employees 
would prefer to be line drivers if given a free choice.” Indeed, a 
  

[52] The limitation to incumbent employees is also said to serve the same 
function that actual job applications served in Franks: providing a means 
of distinguishing members of the excluded minority group from minority 
members of the public at large. While it is true that incumbency in 
this case and actual applications in Franks both serve to narrow what 

might otherwise be an impossible task, the status of nonincumbent appli- 
cant and nonapplicant incumbent differ substantially. The refused appli- 

cants in Franks had been denied an opportunity they clearly sought, 
and the only issue to be resolved was whether the denial was pursuant to 
a proven discriminatory practice. Resolution of the nonapplicant’s claim, 

however, requires two distinct determinations: that he would have applied 
but for discrimination and that he would have been discriminatorily 
rejected had he applied. The mere fact of incumbency does not resolve 
the first issue, although it may tend to support a nonapplicant’s claim to 
the extent that it shows he was willing and competent to work as a driver, 
that he was familiar with the tasks of line drivers, etc. An incumbent's 
claim that he would have applied for a line-driver job would certainly be 

more superficially plausible than a similar claim by a member of the general 
public who may never have worked in the trucking industry or heard of 

I. 1. M. E.-D. C. prior to suit. 
me 3 
[53] Inasmuch as the purpose of the nonapplicant’s burden of proof will 

] 
i 

      

   
stablish that his status is similar to that of the applicant, he must bear 

den of coming forward with the basic information about his quali- 

oresented in an application. As in Franks, 
burden then will be on the 

svertheless not a victim of 

ight show that there were 
. bee hosen for a particular 
ualifs ations were insufficient. 

     

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substantial number of white city drivers who were not subjected 

to the company’s discriminatory pra tices were appar ntly content 

to retain their city jobs.[5¢ 

- a | iQ nentiay 5 v3 he 11 2 E 

In order to fill this evidentiary gap, the Gi argu 

that a nonapplicant’s current willingness to transfer into a lin 

driver position confirms his past de 

response to the court-ordered notice of his entitlement 

demonstrates, according to this argument, 

would have sought a line-driver job when he first became al 

to fill one, but for his knowledge of the company’s discriminator 
   

policy. 

This assumption falls short of satisfying the appro 

unit is normally placed at the bottom of the seniority “board.” 

  

depending on the terminal and the year. In 1971 city drivers at two 
California terminals, “LOS” and San Francisco, earned substantially more 

than the line drivers at those terminals. In addition to earnings, line 

drivers have the advantage of not being required to load and unload their 

trucks. City drivers, however, have regular working hours, are not required 

to spend extended periods away from home and family, and do not face 
the hazards of long-distance driving at high speeds. As the Government 

“111% acknowledged at argument, the jobs are in some sense “parallel”—some may 
prefer one job and some may prefer another. 

The District Court found generally that line-driver jobs “are conside 
the most desirable of the driving jobs.” That finding is not challenged 
here, and we see no reason to disturb it. We observe only that the 
differences between city and line driving were not such that it can be said 
with confidence that all minority employees free from the threat of dis- 
criminatory treatment would have chosen to give up city for line driving. 

[56] In addition to the futility of application, the Court of Appeals seems 

to have relied on the minority employees’ accumulated seniority in non- 
line-driver positions in concluding that nonapplicants had been unlawfully 
deterred from applying. See 517 F. 2d, at 318, 320. The Government adopts 

that theory here, arguing that a nonapplicant who has accrued time at the 

company would be unlikely to have applied for transfer because he would 
have had to forfeit all of his competitive seniority and the job security 
that went with it. In view of our conclusion [that section 703 (h) immunizes 
the seniority system], this argument detracts from rather than supports a 
nonapplicant’s entitlement to relief. To the extent that an incumbent 
was deterred from applying by his desire to retain his competitive seniority, 

1 
ca 

    

-he simply did not want a line-driver job requiring him to start at the 
bottom of the “board.” Those nonapplicants who did not apply for transfer 
because they were unwilling to give up their previously acquired seniority 
suffered only from a lawful deterrent imposed on all employees regardless of 
race or ethnicity. The nonapplicant’s remedy in such cases is limited solely 
to the relief, if any, to which he may be entitled because of the discrimina- 
tion he encountered at a time when he wanted to take a starting line- 
driver job. 

(571 The District Court’s final order required that the company notify 
each minority employee of the relief he was entitled to claim. The employee 
was then required to indicate, within 60 days, his willingness to accept the 
relief. Under the decision of the Court of Appeals, the relief would be 
qualification date seniority. 

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462 EMPLOYMENT DISCRIMINATION LAW 

He is thus in jeopardy of being laid off and must, at best, suffer 
through an initial period of bidding on only the least desirable 
runs. See supra at . . . n. 25. Nonapplicants who chose to 

accept the appellate court’s post hoc invitation, however, would 

enter the line-driving unit with retroactive seniority dating from 
the time they were first qualified. A willingness to accept the job 
security and bidding power afforded by retroactive seniority says 
little about what choice an employee would have made had he 
previously been given the opportunity freely to choose a starting 
line-driver job. While it may be true that many of the nonappli- 
cant employees desired and would have applied for line-driver 
jobs but for their knowledge of the company’s policy of dis- 
crimination, the Government must carry its burden of proof, with 
respect to each specific individual, at the remedial hearings to be 
conducted by the District Court on remand 58] . 

For all the reasons we have discussed, the judgment of the 
Court of Appeals is vacated, and the cases are remanded to the 

District Court for further proceedings consistent with this 
opinion. . . . 

[MRr. JusticE MARSHALL, with whom MR. JUSTICE BRENNAN 
joins, concurred in the portions of the Court’s opinion reproduced 

above.] 

I agree with the Court that the United States proved that 
petitioner T. I. M. E.-D. C. was guilty of a pattern or practice of 
discriminating against blacks and Spanish-speaking Americans in 

hiring line drivers. I also agree that incumbent minority-group 
employees who show that they applied for a line-driving job or 
that they would have applied but for petitioner's unlawful acts 
are presumptively entitled to the full measure of relief set forth 
in our decision last Term in Franks v. Bowman Transportation 

Co., «121 U.S. 747 (1976).11 | 

158] While the most convincing proof would be some overt act such as a 

         

    

      

pre-Act application for a line-driver job, the District Court may find 
evidence of an employee's informal inquiry, expression of interest, or ¢ven 

esire credible and con incing. The question is a factual one 

by the trial Judge 

{ that the task nonapplicants face in proving that they should 

reated 1pplicants is difficult,” . . . 1 understand the Court simply 
to be addressing the facts of this case. There may well be cases in which 

the jobs that the nona pplic ants seek are so clearly more desiral than 
their present jobs ag pre oving that but for the ¢ mployer’s crimination 
the ncnapplicants previou sly would have applied will be anything but 

difficult, 

Even in the present case, however, I believe the Court unnecessarily 
adds to the nonapplicants’ burden. While I agree that proof of a 
ionapplicant’s current willingness to accept a linedriver job is not dis 

positive of the question of whether petitioner's discrimination deterred 

the nonapplicant from applying in the past, I do not agree that cuirent 

villingness "says little,” . . . about past willingness. In my view, we woul 

           



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129 yt Lg QUE: : 5 
420 1]. S. 

VILLAGE OF ARLINGTON HEIGHTS Er AL. v. METRO- 
POLITAN HOUSING DEVELOPMENT CORP. eT AL. 
  

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SEVENTH CIRCUIT 

No. 75-616. Argued October 13, 1976—Decided January 11, 1977 

Respondent Metropolitan Housing Development ‘Corp. (MHDC), a 
nonprofit developer, contracted to purchase ‘a tract within the bound- 
aries of petitioner Village in order to build racially integrated low- and 
moderate-income housing. The contract” was ¢ontingent upon securing 
rezoning as well as federal housing assistance: - MHDC applied to the 
Village for the necessary rezoning from ‘a single-family to a multiple- 
family (R-5) classification. At a series of Village Plan Commission 
public meetings, both supporters and opponents touched upon the fact 
that the project would probably be racially integrated. Opponents also 
stressed zoning factors that pointed toward denial of MHDC’s appli- 
cation: The location had always been zoned single-family, and the Vil- 
lage’s apartment policy called for limited use of R-5 zoning, primarily 
as a buffer between single-family development and commercial or 
manufacturing districts, none of which adjoined the project’s proposed 
location. After the Village denied rezoning, MHDC and individual 
minority respondents filed this suit for injunctive and declaratory 
relief, alleging that the denial was racially discriminatory and violated, 
inter alia, the Equal Protection Clause of the Fourteenth Amendment 
and the Fair Housing Act. The District Court held that the Village's 
rezoning denial was motivated not by racial discrimination but by a 
desire to protect property values and maintain the Villages zoning plan. 
Though approving those conclusions, the Court of Appeals reversed, 
finding that the “ultimate effect” of the rezoning denial was racially 
discriminatory and observing that the denial would disproportionately 
affect blacks, particularly in view of the fact that the general suburban 
area, though economically expanding, continued to be marked by resi- 
dential segregation. Held: 

1. MHDC and at least one individual respondent have standing to 
bring this action. Pp. 260-264. 

(a) MHDC has met the constitutional standing requirements by 
showing injury fairly traceable to petitioners’ acts. The challenged 
action of the Village stands as an absolute barrier to constructing the 
housing for which MHDC had contracted, a barrier which could be 

  

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517 F. 2d 409, reversed and remanded. 

252 Syllabus 

removed if injunctive relief were granted. MHDC, despite the con- 
tingency provisions in its contract, has suffered economic injury based 
upon the expenditures it made in support of its rezoning petition, as 

well as noneconomic injury from the defeat of its objective, embodied 
in its specific project, of making suitable low-cost housing available 

where such housing is scarce. Pp. 261-263. 
(b) Whether MHDC has standing to assert the constitutional 

rights of its prospective minority tenants need not be decided, for at 
least one of the individual respondents, a Negro working in the Village 
and desirous of securing low-cost housing there but who now lives 20 
miles away, has standing. Focusing on the specific MHDC project, 

he has adequately alleged an “actionable causal relationship” between 

the Village's zoning practices and his asserted injury. Warth v. Seldin, 

422 U. 8. 490, 507. Pp. 263-264. 
2. Proof of a racially discriminatory intent or purpose is required to 

show a violation of the Equal Protection Clause of the Fourteenth 

Amendment, and respondents failed to carry their burden of proving 

that such an intent or purpose was a motivating factor in the Village's 

rezoning decision. Pp. 264-271. 

(a) Official action will not be held unconstitutional solely because 

it results in a racially disproportionate impact. “[Such] impact is not 

irrelevant, but it is not the sole touchstone of an invidious racial dis- 

crimination.” Washington v. Davis, 426 U. S. 229, 242. A racially 

discriminatory intent, as evidenced by such factors as disproportionate 

impact, the historical background of the challenged decision, the specific 

antecedent events, departures from normal procedures, and contem- 

porary statements of the decisionmakers, must be shown. Pp. 264-268. 

(b) The evidence does not warrant overturning the concurrent 

findings of both courts below that there was no proof warranting the 

conclusion that the Villages reconing decision was Faehally motivated. 

Pp. 268-271. a 

3. The statutory aston whether er rezoning leon violated the 

Fair Housing Act of 1968 was not decided by the Court of Appeals and 

should be considered on remand. : P. 27 1: ; 

    

   
   

PoweLL, J., delivered the opinion of the Court, in which Burcer, C. J, 

and STEWART, BrackmuN, and Rernquist, JJ., joined. MARSHALL, J; 

filed an opinion concurring in part and dissenting in part, in which 

BRENNAN, J, joined, post, p. 271. WHITE, J, filed a dissenting opinion, 

post, p. 272. STEVENS, J, took no part in the consideration or decision of 

the case. 

  

    

     

    

  

  
  

   

    

  

    
    

                                                            

   

   

  

   

   



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OCTOBER TERM, 1976 

Opinion of the Court 429 U.S 

Jack MM. Siegel argued the cause and filed briefs for 
petitioners. 

F. Willis Caruso argued the cause for respondents. With 

him on the briefs were Carol M. Petersen and Robert G. 
Schwemm.* 

Mr. Justice PoweLL delivered the opinion of the Court. 

In 1971 respondent Metropolitan Housing Development 

Corporation (MHDC) applied ‘to petitioner, the Village of 

Arlington Heights, 11, for the rezoning of a 15-acre parcel 

from single-family to ‘multiple-family classification. Using 

federal financial assistance, MHDC planned to build 190 

clustered townhouse units for low- and moderate-income 

tenants. The Village denied the rezoning request. MHDC, 

joined by other plaintiffs who are also respondents here, 

brought suit in the United States District Court for the 

Northern District of Illinois? They alleged that the denial 

was racially discriminatory and that it violated, inter alia, 

the Fourteenth Amendment and the Fair Housing Act of 1968, 
82 Stat. 81, 42 U. S. C. §3601 et seq. Following a bench 

trial, the District Court entered judgment for the Village, 373 

F. Supp. 208 (1974), and respondents appealed. The Court 

of Appeals for the Seventh Circuit reversed, finding that the 

“ultimate effect” of the denial was racially discriminatory, 

and that the refusal to rezone therefore violated the Four- 
teenth Amendment. 517 F. 2d 409 (1975). We granted 

*Briefs of amici curiae urging affirmance were filed by Conrad N. Bagne 

for the American Society of Planning Officials, and by Abe Fortas and 
Stephen C. Shamberg for the League of Women Voters of the United 
States et al. 

1 Respondents named as defendants both the Village and a number of 
its officials, sued in their official capacity. The latter were the Mayor, the 

Village Manager, the Director of Building and Zoning, and the entire 
Village Board of Trustees. For convenience, we will occasionally refer 
to all the petitioners collectively as “the Village.” 

   



  

ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP. 255 

252 Opinion of the Court 

the Village’s petition for certiorari, 423 U. S. 1030 (1975), 
and now reverse. : 

Arlington Heights is a suburb of Chicago, located about 

26 miles northwest of the downtown Loop area. Most of the 
land in Arlington Heights is zoned for detached single-family 
homes, and this is in fact the prevailing land use. The 
Village experienced substantial growth during the 1960’s, but, 
like other communities in northwest Cook County, its popu- 

lation of racial minority groups remained quite low. Aec- 

cording to the 1970 census, only 27 of the Village's 64,000 
residents were black. 

The Clerics of St. Viator, a religious order (Order), own 
an 80-acre parcel just east of the center of Arlington Heights. 

Part of the site is occupied by the Viatorian high school, and 
part by the Order’s three-story novitiate building, which 

houses dormitories and a Montessori school. Much of the 
site, however, remains vacant. Since 1959, when the Village 

first adopted a zoning ordinance, all the land surrounding 

the Viatorian property has been zoned R-3, a single-family 
specification with relatively small minimum lot-size require- 

ments. On three sides of the Viatorian land there are single- 

family homes just across a street; to the east the Viatorian 

property directly adjoins the backyards of other single-family 

homes. 
The Order decided in 1970 to devote some of its land to 

low- and moderate-income s housing ~ Investigation revealed 
that the most expeditious way to build such housing was to 
work through a nonprofit developer experienced in the use 
of federal housing subsidies under §236 of the National 
Housing Act, 48 Stat. 1246, as added and amended, 12 U.S. C. 
§ 1715z-1.2 

2 Section 236 provides for “interest reduction payments” to owners of 
rental housing projects which meet the Act’s requirements, if the savings 
are passed on to the tenants in accordance with a rather complex formula. 

Qualifying owners effectively pay 19% interest on money borrowed to  



  

OCTOBER TERM, 1976 

Opinion of the Court 420 U.S. 

MHDC is such a developer. It was organized in 1968 

by several prominent Chicago citizens for the purpose of 

building low- and moderate-income housing throughout the 

Chicago area. In 1970 MHDC was in the process of building 
one § 236 development near Arlington Heights and already 
had provided some federally assisted housing on a smaller 

scale in other parts of the Chicago area. 

After some negotiation, MHDC and the Order entered into 
a 99-year lease and an accompanying agreement of sale cov- 
ering a 15-acre site in the southeast corner of the Viatorian 
property. MHDC became the lessee immediately, but the 
sale agreement was contingent upon MHDC’s securing 
zoning clearances from the Village and § 236 housing assist- 
ance from the Federal Government. If MHDC proved unsuc- 
cessful in securing either, both the lease and the contract 

of sale would lapse. The agreement established a bargain 

purchase price of $300,000, low enough to comply with federal 

limitations governing land-acquisition costs for § 236 housing. 

MHDC engaged an architect and proceeded with the proj- 

construct, rehabilitate, or purchase their properties. (Section 236 has 

been amended frequently in minor respects since this litigation began. 
See 12 U. S. C. § 1715z-1 (1970 ed., Supp. V), and the Housing Authori- 

zation Act of 1976, § 4, 90 Stat. 1070.) 
New commitments under § 236 were suspended in 1973 by executive 

decision, and they have not been revived. Projects which formerly could 
claim § 236 assistance, however, will now generally be eligible for aid 
under §8 of the United States Housing Act of 1937, as amended by 
§201 (a) of the Housing and Community Development Act of 1974, 42 
U. S. C. § 1437f (1970 ed., Supp. V), and by the Housing Authorization 
Act of 1976, § 2, 90 Stat. 1068. Under the § 8 program, the Department 

of Housing and Urban Development contracts to pay the owner of the 
housing units a sum which will make up the difference between a fair 
market rent for the area and the amount contributed by the low-income 
tenant. The eligible tenant family pays between 15% and 25% of its gross 

income for rent. Respondents indicated at oral argument that, despite the 
demise of the § 236 program, construction of the MHDC project could 

proceed under § 8 if zoning clearance is now granted. 

  
  
 



ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP. 

252 Opinion of the Court 

ect, to be known as Lincoln Green. The plans called for 

20 two-story buildings with a total of 190 units, each unit 

having its own private entrance from the outside. One 

hundred of the units would have a single bedroom, thought 

likely to attract elderly citizens. The remainder would have 

two, three, or four bedrooms. A large portion of the site 

would remain open, with shrubs and trees to screen the homes 

abutting the property to the east. 

The planned development did not conform to the Village's 

zoning ordinance and could not be built unless Arlington 
Heights rezoned the parcel to R-5, its multiple-family housing 

classification. Accordingly, MHDC filed with the Village 
Plan Commission a petition for rezoning, accompanied by 

supporting materials describing the development and specify- 

ing that it would be subsidized under § 236. The materials 

made clear that one requirement under § 236 is an affirma- 
tive marketing plan designed to assure that a subsidized de- 
velopment is racially integrated. MHDC also submitted 
studies demonstrating the need for housing of this type and 

analyzing the probable impact of the development. To pre- 

pare for the hearings before the Plan Commission and to 
assure compliance with the Village building code, fire regu- 
lations, and related requirements, MHDC consulted with the 

Village staff for preliminary review of the development. 

The parties have stipulated that every change recommended 
during such consultations v “ ineorporated into the plans. 

During the spring of 1971, the Plan Commission consid- 
ered the proposal at a series of three public meetings, which 
drew large crowds. Although many of those attending were 
quite vocal and demonstrative in opposition to Lineoln Green, 

a number of individuals and representatives of community 

groups spoke in support of rezoning. Some of the comments, 

both from opponents and supporters, addressed what was 

referred to as the “social issue”’—the desirability or undesira- 

bility of introducing at this location in Arlington Heights  



      

  

OCTOBER TERM, 1976 

Opinion of the Court 29 U.S. 

- and moderate-income housing, housing that would prob- 
ably be racially integrated. 

Many of the opponents, however, focused on the zoning 
aspects of the petition, stressing two arguments. First, the 
area always had been zoned single-family, and the neigh- 
boring citizens had built or purchased there in reliance on 
that classification. Rezoning threatened to cause a meas- 
urable drop in property value for neighboring sites. Second, 
the Village's apartment policy, ‘adopted by the Village Board 
in 1962 and amended in 1970, called for R—5 zoning primarily 
to serve as a buffer between single- family development and 
land uses thought incompatible, such as commercial or 
manufacturing districts. Lincoln Green did not meet this 
requirement, as it adjoined no commercial or manufacturing 
district. 

At the close of the third meeting, the Plan Commission 
adopted a motion to recommend to the Village's Board of 
Trustees that ‘it deny the request. The motion stated: 
“While the need for low and moderate income housing may 
exist in Arlington Heights or its environs, the Plan Com- 
mission would be derelict in recommending it at the proposed 
location.” Two members voted against the motion and sub- 
mitted a minority report, stressing that in their view the 
change to accommodate Lincoln Green represented “good 
zoning.” The Village Board met on September 28, 1971, 
to consider MHDC'’s request and the recommendation of the 
Plan Commission. After a public hearing, the Board denied 
the rezoning by a 6-1 vote. 

The following June MHDC and three Negro individuals 
filed this lawsuit against the Village, seeking declaratory and 
injunctive relief.* A second nonprofit corporation and an 
individual of Mexican-American descent intervened as plain- 

® The individual plaintiffs sought certification of the action as a class 
action pursuant to Fed. Rule Civ. Proc. 23 but the District Court declined 
to certify. 373 F. Supp. 208, 209 (1974). 

  
  

 



  

  

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ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP. 259 

252 Opinion of the Court 

tiffs. The trial resulted in a judgment for petitioners. As- 

suming that MHDC had standing to bring the suit* the 
District Court held that the petitioners were not motivated 
by racial discrimination or intent to discriminate against low- 

income groups when they denied rezoning, but rather by a 

desire “to protect property values and the integrity of the 
Village’s zoning plan.” 373 F. Supp., at 211. The District 

Court concluded also that the denial would not have a racially 
discriminatory effect. 

A divided Court of Appeals reversed. It first approved 
the District Court’s finding that the defendants were moti- 
vated by a concern for the integrity of the zoning plan, 
rather than by racial discrimination. Deciding whether their 

refusal to rezone would have discriminatory effects was more 

complex. The court observed that the refusal would have 

a disproportionate impact on blacks. Based upon family in- 

come, blacks constituted 40% of those Chicago area residents 

who were eligible to become tenants of Lincoln Green, al- 
though they composed a far lower percentage of total area 

population. The court reasoned, however, that under our 

decision in James v. Valtierra, 402 U. S. 137 (1971), such 
a disparity in racial impact alone does not call for strict 

scrutiny of a municipality’s decision that prevents the con- 

struction of the low-cost housing.’ 

There was another level to the court’s analysis of allegedly 

discriminatory results. Invoking language from Kennedy 

Park Homes Assn. v. City of Lackawanna, 436 F. 2d 108, 

4+ A different District Judge had heard early ‘motions in the case. He 

had sustained the complaint against a motion to dismiss for lack of 
standing, and the judge who finally decided the case said he found “no 

need to reexamine [the predecessor judge's] conclusions” in this respect. 

Ibid. 

5 Nor is there reason to subject the Village’s action to more stringent 

review simply because it involves respondents’ interest in securing housing. 

Lindsey v. Normet, 405 U. S. 56, 73-74 (1972). See generally San Antonio 

School Dist. v. Rodriguez, 411 U.S. 1, 18-39 (1973). 

    
      

   
   

                          

   

                  

   

              

      

  

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OCTOBER TERM, 1976 

Opinion of the Court 429 U.S. 

112 (CA2 1970), cert. denied, 401 U. S. 1010 (1971), the 

Court of Appeals ruled that the denial of rezoning must be 

examined in light of its “historical context and ultimate 

effect.” © 517 F. 2d, at 413. Northwest Cook County was 

enjoying rapid growth in employment opportunities and 

population, but it continued to exhibit a high degree of 

residential segregation. The court held that Arlington 

Heights could not simply ignore this problem. Indeed, it 

found that the Village had been “exploiting” the situation by 
allowing itself to become a nearly all-white community. Id. 
at 414. The Village had no other current plans for building 
low- and moderate-income housing, and no other R-5 parcels 
in the Village were available to MHDC at an economically 

feasible price. 

Against this background, the Court of Appeals ruled that 
the denial of the Lincoln Green proposal had racially dis- 

criminatory effects and could be tolerated only if it served 

compelling interests. Neither the buffer policy nor the desire 
to protect property values met this exacting standard. The 

court therefore concluded that the denial violated the Equal 

Protection Clause of the Fourteenth Amendment. 

II 

At the outset, petitioners challenge the respondents’ stand- 

ing to bring the suit. It is not clear that this challenge was 

pressed in the Court of Appeals, but since our jurisdiction 

to decide the case is implicated, Jenkins v. McKeithen, 395 

U. S. 411, 421 (1969) (plurality opinion), we shall consider it. 

In Warth v. Seldin, 422 U. S. 490 (1975), a case similar in 

some respects to this one, we reviewed the constitutional 
limitations and prudential considerations that guide a court 
in determining a party’s standing, and we need not repeat 
that discussion here. The essence of the standing question, 

6 This language apparently derived from our decision in Reitman v. 
Mulkey, 387 U. S. 369, 373 (1967) (quoting from the opinion of the 

California Supreme Court in the case then under review). 

  

  

   



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252 Opinion of the Court 

in its constitutional dimension, is “whether the plaintiff has 
‘alleged such a personal stake in the outcome of the contro- 

versy’ as to warrant his invocation of federal-court jurisdic- 
tion and to justify exercise of the court’s remedial powers 

on his behalf.” Id., at 498-499, quoting Baker v. Carr, 369 
U. S. 186, 204 (1962). The plaintiff must show that he him- 

self is injured by the challenged action of the defendant. 
The injury may be indirect, see United States v. SCRAP, 

412 U. S. 669, 688 (1973), but the complaint must indicate 
that the injury is indeed fairly traceable to the defendant's 

acts or omissions. Simon v. Eastern Ky. Welfare Rights 

Org., 426 U. S. 26, 41-42 (1976); O’Shea v. Littleton, 414 

U. S. 488, 498 (1974); Linda R. S. v. Richard D., 410 U. S. 

614, 617 (1973). 
A 

Here there can be little doubt that MHDC meets the 

constitutional standing requirements. The challenged action 
of the petitioners stands as an absolute barrier to constructing 

the housing MHDC had contracted to place on the Viatorian 
site. If MHDC secures the injunctive relief it seeks, that 
barrier will be removed. An injunction would not, of course, 
guarantee that Lincoln Green will be built. MHDC would 

still have to secure financing, qualify for federal subsidies,’ 
and carry through with construction. But all housing de- 
velopments are subject to some “extent to similar uncertain- 

ties. When a project is das detailed and specific as Lincoln 

Green, a court is not required to engage in undue speculation 

  

  
7 Petitioners suggest that rar of the § 236 Beusing-assistance 

program makes it impossible for MHDC to carry out its proposed project 

and therefore deprives MHDC of standing. The District Court also ex- 
pressed doubts about MHDC’s position in the case in light of the sus- 
pension. 373 F. Supp., at 211. Whether termination of all available 
assistance programs would preclude standing is not a matter we need 
to decide, in view of the current likelihood that subsidies may be secured 
under § 8 of the United States Housing Act of 1937, as vmiade] by the 

Housing and Community Development Act of 1974. See n. 2, supra. 

    

     

          

   
   

      

   

   

    

   

  

   

            

  

  

   



  

    
  

OCTOBER TERM, 1676 

Opinion of the Court 429 U.S. 

as a predicate for finding that the plaintiff has the requisite 

personal stake in the controversy. MHDC has shown an 

injury to itself that is “likely to be redressed by a favorable 

decision.” Simon v. Eastern Ky. Welfare Rights Org., supra 

at 38. 

Petitioners nonethless appear to argue that MHDC lacks 

standing because it has suffered no economic injury. MHDC, 
they point out, is not the owner of the property in question, 
Its contract of purchase i is contingent upon securing rezoning.® 
MHDC owes the owners nothing if rezoning is denied. 

We cannot accept petitioners’ ‘argument. In the first place, 

it is inaccurate to say that MHDC suffers no economic injury 
from a refusal to rezone, despite the contingency provisions 

in its contract. MHDC has expended thousands of dollars 

on the plans for Lincoln Green and on the studies submitted 

to the Village in support of the petition for rezoning. Un- 
less rezoning is granted, many of these plans and studies will 
be worthless even if MHDC finds another site at an equally 
attractive price. 

Petitioners’ argument also misconceives our standing re- 

quirements. It has long been clear that economic injury 

is not the only kind of injury that can support a plain- 

bd 

& Petitioners contend that MHDC lacks standing to pursue its claim 

here because a contract purchaser whose contract is contingent upon 
rezoning cannot contest a zoning decision in the Illinois courts. Under 
the law of Illinois, only the owner of the property has standing to 
pursue such an action. Clark Oil & Refining Corp. v. City of Evanston, 
23 Ill. 2d 48, 177 N. E. 2d 191 (1961); but see Solomon v. City of 
Evanston, 29 111. App. 3d 782, 331 N. E. 2d 380 (1975). 

State law of standing, however, does not govern such determinations in 
the federal courts. The constitutional and prudential considerations 
canvassed at length in Warth v. Seldin, 422 U. S. 490 (1975), respond 

to concerns that are peculiarly federal in nature. Illinois may choose to 

close its courts to applicants for rezoning unless they have an interest 
more direct than MHDC’s, but this choice does not necessarily disqualify 
MHDC from seeking relief in federal courts for an asserted injury to its 

federal rights. 

  
 



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ARLINGTON HEIGHTS ». METROPOLITAN HOUSING CORP. 263 

252 Opinion of the Court 

tif’s standing. United States v. SCRAP, supra, at 686 

687; Sierra Club v. Morton, 405 U. 8. 727, 734 (1972); 

Data Processing Service v. Camp, 397 U. S. 150, 154 (1970). 

MHDC is a nonprofit corporation. Its interest in building 

Lincoln Green stems not from a desire for economic gain, 

but rather from an interest in making suitable low-cost hous- 

ing available in areas where such housing is scarce. This is 

not mere abstract concern about a problem of general interest. 

See Sierra Club v. Morton, supra, at 739. The specific 

project MHDC intends to build, whether or not it will gen- 

erate profits, provides that “essential dimension of specificity” 

that informs judicial decisionmaking. Schlesinger v. Re- 

servists to Stop the War, 418 U. S. 208, 221 (1974). 

B 

Clearly MHDC has met the constitutional requirements, 

and it therefore has standing to assert its own rights. Fore- 

most among them is MHDC’s right to be free of arbitrary 

or irrational zoning actions. See Euclid v. Ambler Realty Co., 

272 U. S. 365 (1926) ; Nectow v. City of Cambridge, 277 U.S. 

183 (1928); Village of Belle Terre v. Boraas, 416 U. 8.1 

(1974). But the heart of this litigation has never been the 

claim that the Village's decision fails the generous Euclid 

test, recently reaffirmed in Belle Terre. Instead it has been 

the claim that the Village's refusal to rezone discriminates 

against racial minorities in violation of the Fourteenth 

Amendment. As a corporation, MHDC has no racial identity 

and cannot be the direct target of the petitioners’ alleged 

discrimination. In the ordinary case, a party is denied stand- 

ing to assert the rights of third persons. Warth v. Seldin, 

422 U. S. at 499. But we need not decide whether the 

circumstances of this case would justify departure from that 

prudential limitation and permit MHDC to assert the con- 

stitutional rights of its prospective minority tenants. See 

Barrows v. Jackson, 346 U. S. 249 (1953); cf. Sullivan Vv. 

    
    

            

   

   

  

   

                                      

      

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OCTOBER TERM, 1976 

Opmion of the Court 420 U. 8. 

Little Hunting Park, 396 U. S. 229, 237 (1969); Buchanan v. 

Warley, 245 U. S. 60, 72-73 (1917). For we have at least 

one individual plaintiff who has demonstrated standing to 
assert these rights as his own.’ 

Respondent Ransom, a Negro, works at the Honeywell 
factory in Arlington Heights and lives approximately 20 

miles away in Evanston in a 5-room house with his mother 

and his son. The complaint alleged that he seeks and would 
qualify for the housing MHDC wants to build in Arlington 

Heights. Ransom testified at trial that if Lincoln Green 
were built he would ropa mage there, since it is closer 
to his job. = = 

The injury Ransom er is “that his quest for housing 
nearer his employment has been thwarted by official action 

that is racially discriminatory. If a court grants the relief 
he seeks, there is at least a “substantial probability,” Warth 

v. Seldin, supra, at 504, that the Lincoln Green project 
will materialize, affording Ransom the housing opportunity 

he desires in Arlington Heights. His is not a generalized griev- 

ance. Instead, as we suggested in Warth, supra, at 507, 508 

n. 18, it focuses on a particular project and is not dependent 

on speculation about the possible actions of third parties not 

before the court. See ud., at 505; Simon v. Eastern Ky. 

Welfare Rights Org., 426 U. S., at 41-42. Unlike the individ- 
ual plaintiffs in Warth, Ransom has adequately averred an 

“actionable causal relationship” between Arlington Heights’ 
zoning practices and his asserted injury. Warth v. Seldin, 

supra, at 507. We therefore proceed to the merits. 

ITI 

Our decision last Term in Washington v. Davis, 426 U. S. 

229 (1976), made it clear that official action will not be held 

® Because of the presence of this plaintiff, we need not consider 
whether the other individual and corporate’ plaintiffs have standing to 

maintain the suit. 

  

  

 



ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP. 265 

252 Opinion of the Court 

unconstitutional solely because it results in a racially dis- 

proportionate impact. “Disproportionate impact is not ir- 

relevant, but it is not the sole touchstone of an invidious 

racial discrimination.” Id., at 242. Proof of racially discrim- 

inatory intent or purpose is required to show a violation of 

the Equal Protection Clause. Although some contrary indi- 

cations may be drawn from some of our cases,’ the holding 

in Davis reaffirmed a principle well established in a variety 
of contexts. FE. g., Keyes v. School Dist. No. 1, Denver, Colo., 

413 U. S. 189, 208 (1973) (schools); Wright v. Rockefeller, 376 

U. S. 52, 56-57 (1964) (election districting); Akins v. Tezas, 

325 U. S. 398, 403-404 (1945) (jury selection). 

Davis does not require a plaintiff to prove that the chal- 

lenged action rested solely on racially discriminatory pur- 

poses. Rarely can it be said that a legislature or adminis- 

trative body operating under a broad mandate made a 

decision motivated solely by a single concern, or even that 

a particular purpose was the “dominant” or “primary” one. 

In fact, it is because legislators and administrators are prop- 

erly concerned with balancing numerous competing considera- 

tions that courts refrain from reviewing the merits of their 

decisions, absent a .showing of arbitrariness or irrationality. 

But racial discrimination is not just another competing con- 

sideration. When there | is a prot that a isorininasory pur- 

10 Palmer v. Thompson, 403 Hh. s 217, 295 (1971); Wright v. Council 
of City of Emporia, 407 U.S. 451, , 481-462 (1972) ; cf. United States v. 
O'Brien, 391 TU. S. 367, 381-386 (1968). See discussion i in Washington v. 
Davis, 426 U. S., at 242-244. 

11 n McGinnis v. Royster, 410 U. S. 263, 276-277 (1973), in a some- 

what different context, we observed: 

“The search for legislative purpose is often elusive enough, Palmer v. 
Thompson, 403 U. 8S. 217 (1971), without a requirement that primacy be 

ascertained. Legislation is frequently multipurposed: the removal of 
even a ‘subordinate’ purpose may shift altogether the consensus of legis- 

lative judgment supporting the statute.”   

  

  
  

 



OCTOBER TERM, 1976 

Opinion of the Court 429 U.S. 

pose. has been a motivating factor in the degigion, this judicial 
  

  

deference is no longer justified.’ 
Determining whether invidious discriminatory purpose was 

a motivating factor demands a sensitive inquiry into such 

circumstantial and direct evidence of intent as may be avail- 

able. The impact of the official action—whether it “bears 

more heavily on one race than another,” Washington v. Davis, 

supra, at 242—may provide an important starting point. 

Sometimes a clear pattern, unexplainable on grounds other 

than race, emerges from the effect of the state action even 

when the governing legislation appears neutral on its face. 

Yick Wo v. Hopkins, 118 U. S. 356 (1886); Guinn v. United 

States, 238 U. S. 347 (1915); Lane v. Wilson, 307 U. 8S. 268 

(1939) ; Gomillion v. Lightfoot, 364 U. S. 339 (1960). The 

evidentiary inquiry is then relatively easy.’® But such cases 

are rare. Absent a pattern as stark as that in Gomullion or 

Yick Wo, impact alone is not determinative, and the Court 

must look to other evidence.’ 

12 For a scholarly discussion of legislative motivation, see Brest, Palmer 

v. Thompson: An Approach to the Problem of Unconstitutional Legisla- 

tive Motive, 1971 Sup. Ct. Rev. 95, 116-118. : 

18 Several of our jury-selection cases fall into this category. Because 

of the nature of the jury-selection task, however, we have permitted a 

finding of constitutional violation even when the statistical pattern does 

not approach the extremes of Yick Wo or Gomillion. See, e. g., Turner 

v. Fouche, 396 U. S. 346, 359 (1970); Sims v. Georgia, 389 U. S. 404, 

407 (1967). 

14 This is not to say that a consistent pattern of official racial discrimi- 

nation is a necessary predicate to a violation of the Equal Protection 

Clause. A single invidiously discriminatory governmental act—in the 

exercise of the zoning power as elsewhere—would not necessarily be 

immunized by the absence of such discrimination in the making of other 

comparable decisions. See City of Richmond v. United States, 422 U. S. 

358, 378 (1975). 

15 In many instances, to recognize the limited probative value of dis- 

proportionate impact is merely to acknowledge the “heterogeneity” of the 

Nation’s population. Jefferson v. Hackney, 406 U. S. 535, 548 (1972); 

see also Washington v. Davis, supra, at 248. 

 



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ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP. 267 

252 Opinion of the Court 

The historical background of the decision is one evidentiary 

source, particularly if it reveals a series of official actions 

taken for invidious purposes. See Lane v. Wilson, supra; 

Griffin v. School Board, 377 U. S. 218 (1964) ; Davis v. Schnell, 

81 F. Supp. 872 (SD Ala.), aff'd per curiam, 336 U. S. 933 

(1949); cf. Keyes v. School Dist. No. 1, Denver Colo. 

supra, at 207. The specific sequence of events leading 

up to the challenged decision also may shed some light on 
the decisionmaker’s purposes. Reitman v. Mulkey, 387 U. S. 
369, 373-376 (1967) ; Grosjean v. American Press Co., 297 U.S. 

233, 250 (1936). For example, if the property involved here 
always had been zoned R-5 but suddenly was changed to 

R-3 when the town learned of MHDC’s plans to erect in- 

tegrated housing® we would have a far different case. De- 
partures from the normal procedural sequence also might 

afford evidence that improper purposes are playing a role. 

Substantive departures too may be relevant particularly if 
the factors usually considered important by the decision- 
maker strongly favor a decision contrary to the one reached.” 

16 See, e. g., Progress Development Corp. v. Mitchell, 286 F. 2d 222 

(CA7 1961) (park board allegedly condemned plaintiffs’ land for a park 
upon learning that the homes plaintiffs were erecting there would be sold 
under a marketing plan designed to assure integration); Kennedy Park 

Homes Assn. v. City of Lackawanna, 436 F. 2d 108 (CA2 1970), cert. 

denied, 401 U. 8. 1010 (1971) (town declared moratorium on new sub- 
divisions and rezoned area for parkland shortly after learning of plaintiffs’ 
plans to build low-income housing). To the extent that the decision in 

Kennedy Park Homes rested solely on a finding of discriminatory impact, 

we have indicated our Abagreement. Washington v. Davis, supra, at 

244-245. 
17 See Dailey v. City of Lawton, 425 F. 2d 1037 (CA10 1970). The 

plaintiffs in Dailey planned to build low-income housing on the site of 
a former school that they had purchased. The city refused to rezone 
the land from PF, its public facilities classification, to R—4, high-density 
residential. All the surrounding area was zoned R—4, and both the 
present and the former planning director for the city testified that there 
was no reason “from a zoning standpoint” why the land should not be 

          

   

          

      

      

   

            

    
   

                            

   

    

    

  
  

  



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OCTOBER TERM, 1976 

Opinion of the Court 

The legislative or administrative history may be highly rele- 
vant, especially where there are contemporary statements by 

members of the decisionmaking body, minutes of its meetings, 

or reports. In some extraordinary instances the members 
might be called to the stand at trial to testify concerning 
the purpose of the official action, although even then such 
testimony frequently will be barred by privilege. See Ten- 
ney v. Brandhove, 341 U. 8. 367 (1951); United States v. 
Nizon, 418 U. 8. 683, 705 (1974); 8 J. Wigmore, Evidence 
§ 2371 (McNaughton rev. ed. 1961). 

The foregoing summary identifies, without purporting to 
be exhaustive, subjects of proper inquiry in determining 
whether racially discriminatory intent existed. With these 
in mind, we now address the case before us. 

IV 

This case was tried in the District Court and reviewed in 

the Court of Appeals before our decision in Washington v. 

Davis, supra. The respondents proceeded on the erroneous 

theory that the Village's refusal to rezone carried a racially 

discriminatory effect and was, without more, unconstitutional. 

But both courts below understood that at least part of their 

function was to examine the purpose underlying the decision. 

classified R—4. Based on this and other evidence, the Court of Appeals 
ruled that “the record sustains the [District Court’s] holding of racial 
motivation and of arbitrary and unreasonable action.” Id., at 1040. 

18 This Court has recognized, ever since Fletcher v. Peck, 6 Cranch 87, 
130-131 (1810), that judicial inquiries into legislative or executive mo- 
tivation represent a substantial intrusion into the workings of other 
Branches of government. Placing a decisionmaker on the stand is there- 
fore “usually to be avoided.” Citizens to Preserve Overton Park v. Volpe, 
401 U. S. 402, 420 (1971). The problems involved have prompted a good 
deal of scholarly commentary. See Tussman & tenBroek, The Equal 

Protection of the Laws, 37 Calif. L. Rev. 341, 356-361 (1949); A. Bickel, 

The least Dangerous Branch 208-221 (1962); Ely, Legislative and 

Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205 

(1970) ; Brest, supra, n. 12. 

 



  

  
  

ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP. 269 

252 Opinion of the Court 

In making its findings on this issue, the District Court noted 
that some of the opponents of Lincoln Green who spoke at 
the various hearings might have been motivated by opposi- 

tion to minority groups. The court held, however, that the 

evidence “does not warrant the conclusion that this motivated 
the defendants.” 373 F. Supp., at 211. 

On appeal the Court of Appeals focused primarily on re- 

spondents’ claim that the Village’s buffer policy had not 

been consistently applied and was being invoked with a 
strictness here that could only demonstrate some other under- 
lying motive. The court concluded that the buffer policy, 

though not always applied with perfect consistency, had on 

several occasions formed the basis for the Board’s decision 
to deny other rezoning proposals. “The evidence does not 
necessitate a finding that Arlington Heights administered this 

policy in a discriminatory manner.” 517 F. 2d, at 412. The 

Court of Appeals therefore approved the District Court's 

findings concerning the Village's purposes in denying rezoning 
to MHDC. 

We also have reviewed the evidence. The impact of the 

Village's decision does arguably bear more heavily on racial 

minorities. Minorities constitute 18% of the Chicago area 

population, and 40% of the income groups said to be eligible 
for Lincoln Green. But there is little about the sequence 

of events leading up to_th 3 decision that would spark 
suspicion. The are: : 
been zoned R-3 since 9, y 

first adopted a zoning map Chetan hotaos surround 
the 80-acre site, and the Village i is undeniably committed 
to single-family homes as its dominant residential land 
use. The rezoning request progressed according to the usual 
procedures.” The Plan Commission even scheduled two ad- 

   
   

       

  

19 Respondents have made much of one apparent procedural deparfure. 
The parties stipulated that the Village Planner, the staff member whose 
primary responsibility covered zoning and planning matters, was never 

     
         

            

   
   

    

   
   

   

          

   
   

  

   

              

   

      

  

  
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OCTOBER TERM, 1976 

Opinion of the Court 420 U.S 

ditional hearings, at least in part to accommodate MHDC 
and permit it to supplement its presentation with answers 

to questions generated at the first hearing. 
The statements by the Plan Commission and Village Board 

members, as reflected in the official minutes, focused almost 

exclusively on the zoning aspects of the MHDC petition, 

and the zoning factors on which they relied are not novel 
criteria in the Village's rezoning decisions. There is no rea- 

son to doubt that there has been reliance by some neighbor- 

ing property owners on “the maintenance of single-family 

zoning in the vicinity. “The Village originally adopted its 

buffer policy long before MHDC entered the picture and has 

applied the policy too consistently for us to infer discrimina- 

tory purpose from its application in this case. Finally, 

MHDC called one member of the Village Board to the stand 

at trial. Nothing in her testimony supports an inference of 

invidious purpose.* 

In sum, the evidence does not warrant overturning the 

concurrent findings of both courts below. Respondents sim- 

ply failed to carry their burden of proving that discrimina- 

tory purpose was a motivating factor in the Village’s decision.” 

asked for his written or oral opinion of the rezoning request. The 

omission does seem curious, but respondents failed te prove at trial what 

role the Planner customarily played in rezoning decisions, or whether his 

opinion would be relevant to respondents’ claims. 

20 Respondents complain that the District Court unduly limited their 

efforts to prove that the Village Board acted for discriminatory purposes, 

since it forbade questioning Board members about their motivation at 

the time they cast their votes. We perceive no abuse of discretion in 

the circumstances of this case, even if such an inquiry into motivation 

would otherwise have been proper. See n. 18, supra. Respondents were 

allowed, both during the discovery phase and at trial, to question Board 

members fully about materials and ‘information available to them at the 

time of decision. In light of respondents’ repeated insistence that it 

was effect and not motivation which would make out a constitutional 

violation, the District Court’s action was not improper. 

21 Proof that the decision by the Village was motivated in part by a 

  

 



  

  

  

ARLINGTON HEIGHTS v. METROPOLITAN HOUSING CORP. 271 

252 Opinion of MARsHALL, J. 

This conclusion ends the constitutional inquiry. The Court 

of Appeals’ further finding that the Village's decision carried 

a discriminatory “ultimate effect” is without independent 
constitutional significance. 

v 

Respondents’ complaint also alleged that the refusal to 

rezone violated the Fair Housing Act of 1968, 42 U. S. C. 
§ 3601 et seq. They continue to urge here that a zoning deci- 

sion made by a public body may, and that petitioners’ action 

did, violate § 3604 or § 3617. The Court of Appeals, how- 

ever, proceeding in a somewhat unorthodox fashion, did 

not decide the statutory question. We remand the case for 

further consideration of respondents’ statutory claims. 

Reversed and remanded. 

MR. JusTicE STEVENS took no part in the consideration 

or decision of this case. 

MR. Justice MaArRsHALL, with whom MR. Justice BREN- 
NAN joins, concurring in part and dissenting in part. 

I concur in Parts I-III of the Court’s opinion. However, 

I believe the proper result would be to remand this entire 

case to the Court of Appeals for further proceedings con- 
sistent with Washington v. Davis, 426 U. S. 229 (1976), and 
today’s opinion. The Court of Appeals is better situated 

racially discriminatory purpose would not necessarily have required inval- 
idation of the challenged decision. Such proof would, however, have 
shifted to the Village the burden of establishing that the same decision 
would have resulted even had the impermissible purpose not been con- 
sidered. If this were established, the complaining party in a case of this 
kind no longer fairly could attribute the injury complained of to improper 
consideration of a discriminatory purpose. In such circumstances, there 

would be no justification for judicial interference with the challenged 
decision. But in this case respondents failed to make the required 
threshold showing. See Mt. Healthy City Board of Ed. v. Doyle, post, / 

p. 274.    
  

     
   

                        

   

    

   

                            

    

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OCTOBER TERM, 1976 

Waite, J., dissenting 420 U.S 

than this Court both to reassess the significance of the evi- 

dence developed below in light of the standards we have set 

forth and to determine whether the interests of justice re- 

quire further District Court proceedings directed toward 

those standards. 

Mr. Justice WHITE, dissenting. 

The Court reverses the judgment of the Court of Appeals 

because it finds, after re-examination of the evidence sup- 
porting the concurrent findings below, that “[r]espondents . . 
failed to carry their burden of proving that discriminatory 
purpose -was a motivating factor in the Village's decision.” 

Ante, at 270. The Court reaches this result by interpreting 

our decision in Washington v. Davis, 426 U. S. 229 (1976), and 

applying it to this case, notwithstanding that the Court of 

Appeals rendered its decision in this case before Washington 

v. Davis was handed down, and thus did not have the benefit 

of our decision when it found a Fourteenth Amendment 

violation. 
The Court gives no reason for its failure to follow our 

usual practice in this situation of vacating the judgment 

below and remanding in order to permit the lower court 

to reconsider its ruling in light of our intervening decision. 

The Court’s articulation of a legal standard nowhere men- 

tioned in Davis indicates that it feels that the application 

of Davis to these facts calls for substantial analysis. If this 

is true, we would do better to allow the Court of Appeals 

to attempt that analysis in the first instance. Given that 

the Court deems it necessary to re-examine the evidence 

in the case in light of the legal standard it adopts, a 

remand is especially appropriate. As the cases relied upon 

by the Court indicate, the primary function of this Court 

is not to review the evidence supporting findings of the 

lower courts. See, e. g., Wright v. Rockefeller, 376 U. S. 52, 

56-57 (1964); Akins v. Tezas, 325 U. 8S. 398, 402 (1945). 

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ARLINGTON HEIGHTS     v. METROPOLITAN HOUSING CORP. 273 

  

  WHITE, J, dissenting 

A further justification for remanding on the constitutional 
issue is that a remand is required in any event on respond- 
ents’ Fair Housing Act claim, 42 U. S. C. §3601 et seq. 

not yet addressed by the Court of Appeals. While conceding 

that a remand is necessary because of the Court of Appeals’ 
“unorthodox” approach of deciding the constitutional issue 

without reaching the statutory claim, ante, at 271, the Court 

refuses to allow the Court of Appeals to reconsider its con- 

stitutional holding in light of Davis should it become neces- 
sary to reach that issue. 

Even if I were convinced that it was proper for the Court 
to reverse the judgment below on the basis of an inter- 

vening decision of this Court and after a re-examination of 

concurrent findings of fact below, I believe it is wholly 

unnecessary for the Court to embark on a lengthy discussion 

of the standard for proving the racially discriminatory pur- 

pose required by Davis for a Fourteenth Amendment viola- 

tion. The District Court found that the Village was moti- 

vated “by a legitimate desire to protect property values and 
the integrity of the Village’s zoning plan.” The Court of 

b Appeals accepted this finding as not clearly erroneous, and 

| the Court quite properly refuses to overturn it on review 

; here. There is thus no need for this Court to list various 
“evidentiary sources” or “subjects of proper inquiry” in de- 

termining whether a racially discriminatory purpose existed. 
I would vacate the judgment of the Court of Appeals 

and remand the case for consideration of the statutory issue 
and, if necessary, for consideration of the constitutional i issue 
in light of Washington V. Davis. La 

  
  

  

       
     

   

    

   

                          

   

      

   

      

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PROOF OF DISCRIMINATORY INTENT UNDER 

TITLE VII: UNITED STATES POSTAL 

SERVICE BOARD OF GOVERNORS v. AIKENS 

ELIZABETH BARTHOLET 

Reprinted from 

CALIFORNIA LAW REVIEW 

Volume 70, Number 5, September 1982 

Copyright © 1982 by California Law Review, Inc.  



    

 



Proof of Discriminatory Intent Under 

Title VII: United States Postal 

Service Board of Governors 

v. Atkens 

Elizabeth Bartholetf 

INTRODUCTION 

The Supreme Court will hear a case this Term involving the ques- 
tion of how intentional discrimination in employment can be proven. 
The case—United States Postal Service Board of Governors v. Aikens'— 
involves a claim brought under title VII of the Civil Rights Act of 
1964.> Aikens charged the Postal Service with racial discrimination in 
denying him promotion to various managerial-level jobs. The D.C. 
Circuit ruled that he could make out a prima facie case of discrimina- 
tion by showing that he possessed all known qualifications for the pro- 
motions, and had been passed over in favor of white candidates.> The 
United States Department of Justice, representing the Postal Service, 
has asked the Court to rule that plaintiff's prima facie proof must 
demonstrate a “probability” of discrimination. In this case, where the 

plaintiff relied on comparative qualifications to show intent, the Gov- 
ernment says that to make out this probability, plaintiff would have tg 
provide evidence that he is more qualified than the candidates chosen, 
in terms of whatever tangible and intangible factors may be taken into 

  

    

  

  

  

+ Assistant Professor of Law, Harvard University. B.A. 1962, Radcliffe College; LL.B. 

1965, Harvard Law School. 

The author served from 1968 to 1972 as a staff attorney for the NAACP Legal Defense and 

Educational Fund, Inc., which is co-counsel for respondent Aikens in the case discussed herein. 
She has since that time continued to consult with the Legal Defense Fund on various of its cases. 

1. 102 S. Ct. 1707 (1982) (No. 81-1044), granting cert. to Aikens v. United States Postal 

Serv. Bd. of Governors, 665 F.2d 1057 (D.C. Cir. 1981). 

2. Pub. L. No. 88-352, §§ 701-716, 78 Stat. 241, 253-66 (1964) (codified as amended at 42 

U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. IV 1980)). Title VII was made applicable to the 
federal government in 1972. Equal Employment Opportunity Act of 1972, § 11, Pub. L. No. 92- 

261, 86 Stat. 103, 111 (codified as amended at 42 U.S.C. § 2000e-16 (1976 & Supp. IV 1980)). 

3. Aikens v. United States Postal Serv. Bd. of Governors. 665 F.2d 1057 (D.C. Cir. 1981), 
cert. granted, 102 S. Ct. 1707 (1982). An earlier decision by the D.C. Circuit in this case, 642 F.2d 

514 (D.C. Cir. 1980), was vacated and remanded by the Supreme Court, 453 U.S. 902 (1981), for 

reconsideration in light of Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981). 

4. Brief for Petitioner at 10, 19 n.14, Aikens. 

1201 

 



  

  

1202 CALIFORNIA LAW REVIEW [Vol. 70:1201 

account in the Postal Service’s promotional decisionmaking system.’ 

The definition of the requirements of plaintiffs’ prima facie case is 
of tremendous practical significance in a title VII case. If plaintiffs fail 
to make out a prima facie case, judgment muss be entered against them 
upon defendant’s motion for judgment at the close of plaintiff's case. 
(Since most title VII cases are tried without a jury,® the court would 
ordinarily dismiss the case, on the merits, pursuant to rule 41(b) of the 
Federal Rules of Civil Procedure.) However, if plaintiffs succeed in 
making out a prima facie case, judgment must be entered for them, 
unless the defendant produces satisfactory rebuttal evidence. Thus in 
an intentional discrimination case, plaintiffs’ prima facie proof is said 
to create a “legally mandatory, rebuttable presumption” of discrimina- 
tion.” This has the effect of forcing the defendant employer to produce 
evidence to rebut the presumption of discrimination at the risk of los- 
ing the case. 

The key issue posed by Aikens relates to the point at which this 
burden of production should be placed on the employer. The ai Cir- 
cuit held, in effect, that plaintiff must show in his initial cas what 

he could, with reasonable effort, be expected to learn prior to trial— 

namely, that he possessed all known qualifications. _ This showing 
would place the burden of production on the employer to provide evi- 
dence as fo why it selected whites over an apparently qualified black 
candidate—evidence that would presumably include information as to 
how the employer’s discretionary promotional system measured quali- 
fications. The Government argues that since in an intentional discrimi- 
nation case plaintiff has the ultimate burden of persuasion on the issue 
of illicit intent, plaintiff must demonstrate a probability of illicit intent 
in his initial proof. No burden of production should be placed on the 
defendant until such a probability is made out. 

The manner in which this issue is resolved will significantly affect 
the substantive meaning of the ban on intentional discrimination con- 
tained in title VII and other job discrimination legislation. This is be- 
cause of the nature of intentional discrimination in today’s world. 
Overt and blatant discrimination is a relatively rare phenomenon. The 

VETY existence of title VII, with its ban on discrimination, and its provi- 

  

  

  

  

  

  

  

  

  

  

  

bp. J 
5. 1d at 10, 23,24 n.18. The Government oe a probability of discrimination can also 

be proved by a showing that the employer's decisiohrWas economically irrationgl, or by statistical 
evidence that an employer has consistently hired a disproportionately small number of minorities, 

or by anecdotal evidence of racial prejudice. /4. at 11. 
  

  

." Title VII has been interpreted not to provide a right to jury trial even when back pay 
claims are involved. See, e.g., Slack v. Havens, 522 F.2d 1091, 1094 & n.4 (9th Cir. 1975) (restitu- 
tion for back pay is an equitable and not a legal remedy); EEOC v. Detroit Edison Co., 515 F.2d 
301, 308 (6th Cir. 1975), vacated on other grounds and remanded, 431 U.S. 951 (1977). 

7. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 n.7 (1981). 

   



1982] PROOF OF DISCRIMINATORY INTENT 1203 

sions guaranteeing victims the right to damages, injunctive relief, and 
attorneys’ fees, has meant the elimination of most such discrimination 
by most employers. It is intentional discrimination in its covert, hidden 
form that now poses the real problem. Evidence of illicit intent may be 
extremely difficult to obtain, whether the responsible individuals are 
conscious of their bias, and therefore likely to try to hide it, or whether 
they are expressing unconscious bias through some discretionary deci- 
sionmaking process. Plaintiffs’ chances of proving illicit intent will, 
therefore, turn to a great degree on judicial rulings as to what kind of 
evidence of such intent plaintiffs are required to produce at various 
stages of the trial process, and with what kind of assistance from the 
employer. 

The position that the Government is taking in the Aikens case 
would, if accepted by the Supreme Court, shape the “disparate treat- 
‘ment” doctrine, which defines the standards by which intentional dis- 
crimination is proven under title VII, in a way that would make it 
extremely difficult for plaintiffs to uncover evidence of illicit intent in 
most cases. And in cases where the challenged decisionmaking system 
includes elements of subjectivity and discretion, the Government’s pro- 
posed standard may make it nearly impossible to prove such intent.® 

( The disparate treatment doctrine is, of course, only one of the two 

  

  

  

  

  
  

  

  

    

main doctrines that have been developed to interpret and enforce title 
VII. The other is the “disparate impact” doctrine, which governs 
unintentional discrimination, and holds that certain employer practices 
having an adverse impact on minorities are unlawful unless the em- 
ployer can prove that they are “job-related.”” The impact doctrine has 
been an enormously powerful weapon for plaintiffs, because it removes 
any necessity to prove illicit motive on the employer’s part, and because 
the burden of proof placed on the employer to show job-relatedness has 
turned out to be very difficult to satisfy.” 

However, the disparate treatment doctrine remains of great impor- 
tance. Courts generally apply disparate treatment analysis to cases of 

TOiRua), Sather hap shass-diredied disimination And they gener- 
ally apply disparate treatment analysis to employment decisionmaking 
systems that rely on discretion and subjective judgment; the courts are 
thus far divided on the issue of whether the impact doctrine should be 

  

  

  

  

8. The Government's standard would thus further the dichotomy between judicial treat- 
ment of “upper level” as compared with “lower level” jobs—a dichotomy that is discussed and 
criticized in Bartholet, Zirle VII's Application to Jobs in High Places, 95 HARV. L. REV. 945 (1982) 

(courts have effectively immunized society’s more desirable jobs from the doctrines that have been 

routinely applied to blue collar jobs in the last fifteen years). 
9. The leading Supreme Court case adopting this doctrine is Griggs v. Duke Power Co., 401 

U.S. 424 (1971). 
10. See Bartholet, supra note 8, at 950-55. 

 



  

    
  

1204 CALIFORNIA LAW REVIEW [Vol. 70:1201 

applied to require employers to provide convincing proof of job-relat- 
edness with respect to such systems.!! Moreover, the impact doctrine’s 
future is somewhat uncertain. Prominent officials in the Reagan Ad- 
ministration have made clear their concern about the use of the impact 
doctrine. And the Supreme Court has shown itself reluctant to ex- 
pand the impact doctrine’s applicability.’* In the future, therefore, dis- 
parate treatment analysis may be all that is available to plaintiffs 
charging job discrimination in a wide variety of contexts. 

Moreover, the principle that the Government is proposin ik- 

ens would, if accepted by the Court, significantly undermine the dispa- 
rate | t doctrine the di ine. This 
principle is that plaintiffs must provide, as part of their prima facie 
case, evidence demonstrating probability as to the ultimate fact at issue. 
In an impact case, the ultimate fact at issue is the existence of unjusti- 
fied adverse impact on minorities. The Government’s principle would 
seem logically to lead to a requirement that plaintiffs produce evidence 
in their prima facie case that challenged systems are not job-related.’ 
The radical changes that have been wrought by the disparate impact 
doctrine are largely attributable to the fact that it has placed on defend- 
ants the burden of production and persuasion on the job-relatedness 
issue. It has generally been assumed that if plaintiffs had to prove the 
absence of job-relatedness in order to prevail, they would almost never 
be able to do so. The Government’s principle would, therefore, if car- 
ried to its logical extreme, mean the effective death of the impact 

doctrine. 

The issue presented by the Government’s position in Aikens will 
not necessarily be resolved in this case. Aikens’ attorneys have filed a 
brief arguing that plaintiff introduced extensive evidence that he was, 
in fact, at least as qualified as the whites chosen, together with other 

   

    

    

  

  

  

11. 7d. at 973-78, 987. 

12. See N.Y. Times, Dec. 14, 1981, at 21, col. 1 (Attorney General William French Smith); 
id., Nov. 18, 1981, at 21, col. 3 (Clarence Pendleton, Chairman, United States Civil Rights 

Comm’n); id, Nov. 16, 1981, at 1, col. 3 (Assistant Attorney General for Civil Rights William 

Bradford Reynolds). 

13. See, eg, General Bldg. Contractors Ass’n v. Pennsylvania, 102 S. Ct. 3141, 3146-50 
(1982) (42 U.S.C. § 1981 requires proof of intent); American Tobacco Co. v. Patterson, 102 S. Ct. 

1534 (1982) (seniority plans adopted after title VII became effective are not subject to challenge 

under disparate impact standard). 

14. Distinctions could, of course, be drawn. The defendant has the burden of persuasion, as 
well as production, on the job-relatedness issue under the Griggs decision. In an intent case, the 
plaintiff has the ultimate burden of persuasion on the issue of intent. So long as Griggs is consid- 

ered to be good law on the burden of persuasion issue, there are strong arguments for leaving the 
burden of production on that issue on defendant also. But acceptance of the Government's princi- 
ple that it is wrong to shift the burden of production in a disparate treatment case might raise 
questions as to the propriety of shifting the burden of persuasion in an impact case. 

   



1982] PROOF OF DISCRIMINATORY INTENT 1205 

evidence indicating intentional discrimination.’ The Court could well 
decide that the Government’s proposed standard was in fact met, or it 
could dispose of the case in some other way.'® But the issue presented 
is one that will recur, as cases involving middle and upper level job 
advancement are brought to court in increasing numbers.'’ 

The purpose of this Article is to discuss some of the considerations 
that should be weighed in resolving this issue, as well as to point out 
what is at stake in terms of the substantive norms of title VIL 

I 

BURDENS OF PRODUCTION AND PERSUASION UNDER THE 

DISPARATE TREATMENT DOCTRINE 
  

The disparate treatment doctrine was recently clarified and refine 
by a unanimous Supreme Court in 7exas Department of Community 
Affairs v. Burdine.'® Burdine, like previous disparate treatment cases, 

envisions three stages of proof. At the(firsDstage plaintiffs must present 

a prima facie case of discrimination. In some cases plaintiffs may rely 
in whole or in part on evidence of blatant acts of discrimination to 
show the employer’s bad faith. Usually, however, they will rely in 
whole or in part on circumstantial evidence, which may simply consist 
of a showing that the employer has preferred whites over blacks with 
comparable objective qualifications.'” What kind of evidence is re- 
quired will depend on the circumstances, but the evidence must at least 
eliminate “the most common non-discriminatory reasons” for the em- 
ployer’s action.’ Burdine notes that “an appropriate model”?! is the 

  

  

      

  

  

15. See Brief for the Respondent at 20-31, Aikens. 

16. See infra note 33. 

17. Thus versions of the Azkens issue may have been presented in Powell v. Syracuse Univ., 
580 F.2d 1150, 1155 (2d Cir. 1978), and in Davis v. Weidner, 596 F.2d 726, 730 (7th Cir. 1979). 
Both held that candidates for university level faculty positions need only show, to make out a 
prima facie case, that they meet the basic qualifications for the positions. It is for defendant to 
make the initial showing of comparative qualifications in rebuttal. Bus see Agarwal v. Arthur G. 
McKee & Co., 16 Empl. Prac. Dec. (CCH) { 8301, at 5574 (N.D. Cal. 1977), qff°’d, 644 F.2d 803 
(9th Cir. 1981); Presseisen v. Swarthmore College, 442 F. Supp. 593, 616 (E.D. Pa. 1977), aff'd 

mem. , 582 F.2d 1275 (3d Cir. 1978). 

18. 450 U.S. 248 (1981). ) 

19. See generally B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION Law 16, 1153- 

58 (1976). 

20. Burdine, 450 U.S. at 254; see also International Bhd. of Teamsters v. United States, 431 

U.S. 324, 358 & n.44 (1977) (“Although the McDonnell Douglas formula does not require direct 
proof of discrimination, it does demand that the alleged discriminatee demonstrate at least that his 
rejection did not result from the two most common legitimate reasons on which an employer 
might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of 
a vacancy in the job sought. Elimination of these reasons for the refusal to hire i cie 
absent other explanations, to create an inference that the decision was a discriminatory one.”). 

21. 450 U.S. at 253 n.6. 

 



  

  

  
  

1206 CALIFORNIA LAW REVIEW [Vol. 70:1201 

now-classic formula described in McDonnell Douglas Corp. v. Green? 
There the Court held that plaintiff had made out a prima facie case of 
intentional discrimination by showing: 

(i) that he belongs to a racial minority; (ii) that he applied and was 
qualified for a job for which the employer was seeking applicants; (iii) 
that, despite his qualifications, he was rejected; (iv) and that after his 
rejection, the position remained open and the employer continued to 
seek applicants from persons of complainant’s qualifications.? 

According to Burdine, plaintiffs’ prima facie case establishes a “legally 
mandatory, rebuttable presumption” of discrimination.>* Defendant 
must now produce evidence or suffer an adverse judgment.? 

The Court’s description of the amount of evidence the defendant is 

required to produce at the second stage of proof indicates that one of 
the goals of the Burdine standard is to provide plaintiffs with the kind 
of detailed discovery that would make it possible for them to prove 

  

  

  

    

illicit intent. Thus, admissible evidence articulating with some specific- 
ity the reasons for the employment decision must be produced.>® The 
defendant cannot simply rest on conclusory allegations in the plead- 
ings.?” Stage two is designed “to frame the 1 issue with suffici 
clarity so that the plaintiff will have a full and fair opportunity to 
TP TTORSTATE preter However, defeat has io burgen of peng. 
sion. He need ral: by providing evi- 

énce explaining the reasons for his actions. He need not persuade the 
fact-finder that the reasons are sensible or job-related, or even that they 
are the real reasons for his action.” The burden of persuasion on the 
issue of illicit intent is on plaintiff.> 

At the third stage, plaintiff must provide persuasive proof of illicit 
inteAT TOME To Fesvall. Such proof may consist simply of evidence 
that the reasons proffered by defendant are not credible.*! Indeed there 
may be no additional presentation of evidence by plaintiff at all. Plain- 
tiff can simply rely on his pri S n cross-examination of 

efendant’s rebuttal witngsses.*? 

    

  

  

  

  

  

22. 411 U.S. 792 (1973). 

23. 7d. at 802. 

24. Burdine, 450 U.S. at 254 n.7. 

25. See F. JAMES & G. HAazArD, CiviL PROCEDURE §§ 7.7, .9 (1977). 

26. Burdine, 450 U.S. at 255. 

27. 4. at 25509. 

28. 71d. at 255-56. 

29. 7d. at 254. 

30... Jd. 

31. 7d. at 254-55. 

32. Id. at 253 n.10. 

 



1982] PROOF OF DISCRIMINATORY INTENT 1207 

II 

THE ISSUE PRESENTED BY A/KENS 

In Aikens plaintiff challenged decisions denying him promotion to 
four higher level Postal Service jobs—jobs such as “Mail Processing 
Officer,” and “Director of the Operations Division.” Aikens presented 
evidence to the court of his objective qualifications for the jobs, show- 
ing that he satisfied all requirements, and that he compared favorably 
with the candidates selected, all of whom were white. The promotional 
decisions at issue were made by two white supervisors, apparently on 
the basis of their subjective judgment of various candidates’ relative 
qualifications. 

The district court held that Aikens failed to make out a prima facie 
case because he had not proven that he was as or more qualified than 

the candidates chosen.>> The D.C. Circuit reversed, holding that in or- 
der to make out a prima facie case, plaintiff need show no more than 
that he possesses the minimum objective qualifications for the job, t to- 
gether with any other qualifications that the defendant reveals.>* The 
court recognized that professional and managerial positions raise par- 
ticularly difficult issues: 

Most abilities of a successful manager—especially the ability to assume 
responsibility for motivating and directing other employees—are intan- 
gible, and each applicant could bring to the position an enormous vari- 
ety of life experiences that are relevant.” 

It held that proof should be made as follows: 

"At the prima facie stage, . . . the plaintiffima e- 
“yond a showing of minimum T qualiBcations to demonstrate that he pas- 
sesses whatever qualifications or background experiences the employer 
has indicated are important. At the second stage, the employer must 
indicate which qualifications or background experiences formed the ba- 
sis of his Hirtmg or promotion decision; then, at the final stage, the 

  

  

  

  

  

  

  

  

  

  

  

  

33. Aikens v. Bolger, 23 Fair Empl. Prac. Cas. (BNA) 1138 (Feb. 26, 1979) (Conclusion of 

Law #8). The district court’s holding is ambiguous since this finding was made at the close of a 

full trial, not at the end of plaintiff’s prima facie case. Therefore the court’s conclusion #8 may be 
intended as a holding that once defendant introduces rebuttal evidence, plaintiff must provide 

evidence that he is as or more qualified in order to satisfy his burden of persuasion on the ultimate 
issue of illicit intent. The D.C. Circuit interpreted the decision below as warranting judgment for 
the defendant on a motion for judgment after plaintiff's initial presentation of his case. However, 
the Supreme Court could reverse and remand for further consideration on the ground that the 
issue as to what constitutes an adequate prima facie case is not presented by the record in this 

case. 
34. 665 F.2d 1057, 1059 (D.C. Cir. 1981), cert. granted, 102 S. Ct. 1707 (1982) (No. 81-1044). 

A plaintiff who demonstrates that he possesses the absolute minimum qualifications for a 
job, therefore, does not necessarily make out a prima facie case; if the employer has 
indicated that certain additional qualifications are necessary or preferred, the plaintiff 
must demonstrate that he has those qualifications as well. 

35. 71d. at 1060. 

 



  

  

  

  

  

  

ley Jap 
( 

  

1208 CALIFORNIA LAW REVIEW [Vol. 70:1201 

plaintiff would have to show his superiority in those areas in order to 

prove discrimination.” 

Thus under the D.C. Circuit’s standard in Aikens, plaintiffs must 

provide in their initial case all evidence that they can acquire with rea- 

sonable effort related to qualifications, but need not make the compara- 

tive showing of qualifications which could provide a basis for finding 

illicit intent until the final stage of proof, after the employer’s rebuttal. 

The burden of production is shifted at the second stage to the employer 

to show how it actually evaluated qualifications. 

It is worth emphasizing the difficulty of plaintiffs’ ultimate task of 
proving illicit intent on the basis of comparative qualifications, even 
under the D.C. Circuit’s standard. Where the promotional process in- 
cludes elements of subjectivity and discretion, plaintiff cannot at the 
final stage of proof rely solely on comparative evidence of objective 

qualifications. He must instead show. in effect, that but for racial bias 
“he would have been found the most qualified candidate in terms of all 

the objective and subjective factors that the employer might have 

considered. 

The Government argues that plaintiff must make the comparative 
showing of qualificatio ified than 
the white candidates chosen,®” in his \pitial proof. Such a showing is 
said to be necessary to demonstrate a probability of intentional 

discrimination.?® 
The question posed by Aikens as to the standard by which the ade- 

quacy of plaintiffs’ prima facie case should be evaluated has not been 
resolved either by Burdine or by any previous Supreme Court case. 
Burdine focused on the second stage of proof, since the issue presented 
in that case was whether, once a prima facie case was made out, de- 

fendants had the burden of persuasion or simply the burden of produc- 
tion. There is language in Burdine and other of the Supreme Court’s 
disparate treatment cases indicating that plaintiffs’ prima facie proof 
should provide the basis for an “inference of discrimination,” but the 
cases do not make clear exactly what is meant by inference of discrimi- 
nation.** The factual records in Burdine and the Court’s earlier dispa- 
rate treatment cases indicate that the Court has found a prima facie 

  

  

  

     
     

  

  

  

36. /d. 

37. See supra note 3. 

38. See supra note 4. 

39. Burdine states that the prima facie case must provide evidence of circumstances which 
“give rise to an inference of unlawful discrimination,” 450 U.S. at 253, but does nos say such 

evidence must show a probability of discrimination. It uses the language of probability only in 
quoting from an earlier decision assessing the relevance of such evidence “if otherwise unex- 
plained.” 1d. at 254 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)) (emphasis 

added). 

)



1982] PROOF OF DISCRIMINATORY INTENT 1209 

case made out on the basis of evidence short of what would seem re- 
quired to show a probability of illicit intent.*° 

What does seem clear from Burdine is that it envisions a scheme of 
proof that would enable plaintiffs to obtain at stage two of the trial 
important information related to their ability to prove illicit intent. 
The Government’s standard would radically change this scheme, and 
its brief indicates that this is exactly what is intended. Thus under the 
Government’s proposed standard plaintiffs must learn everything pos- 
sible that is relevant to proof of intent during discovery or other pre- 
trial investigation. They cannot rely on the trial process to force de- 
fendants to come forward with essential information. The Government 
argues that plaintiffs can obtain all information needed to prove illicit 
intent prior to trial. It claims that discovery can be made effective by 
imposing sanctions at trial on recalcitrant defendants: 

Moreover, while the question is not presented here, we suggest that, at 
least in some circumstances an employer’s unjustified failure to provide 
a reason for his action, when asked to do so during discovery or an 
administrative investigation, may itself complete the prima facie case of 
a qualified minority applicant.*! 

The question of whether the Government’s proposal is practicable or 
otherwise appropriate is discussed in the next Part. 

  

40. Thus in McDonnell Douglas v. Green, 411 U.S. 792 (1973), the Supreme Court found 

that plaintiff made out a prima facie case by showing that he satisfied the objective qualifications 
for the position. The obvious non-discriminatory reason for defendant’s refusal to hire in that 
case was plaintiff's prior illegal conduct, directed against that very employer, for which plaintiff 

had previously been discharged. Nonetheless the Court held that evidence relating to that reason 
was to be introduced in the first instance by the defendant. 7/4. at 802-04. In Burdine the Court 

held that the plaintiff made out a prima facie case in a situation not very different from that 
presented in Aikens. Plaintiff was applying for a “project director” position for a division that was 
in trouble and threatened with termination. The employer failed to select her and, six months 

later, selected another candidate, relying on an “evaluation of the relative qualifications” of the 
candidates. The Court found that plaintiff had satisfied her initial burden by showing that she 

was “qualified,” leaving it to the employer to provide evidence as to the comparative qualifica- 
tions. 450 U.S. at 254 n.6. In Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978), the Court held 

that plaintiffs made out a prima facie case based on a showing of objective qualifications, even 
though the most obvious reason for their not being hired was that they had applied at the gate, 
and the employer’s selection system did not allow for consideration of at-the-gate applicants, 

whether white or black. The Court placed the burden on the employer to introduce evidence 
related to the way in which its selection system operated, and the reasons for using that system. 

Indeed, it would be a rare case in which a prima facie case that satisfied the classic McDonnell 
Douglas formula would provide sufficient basis to persuade a factfinder of intentional discrimina- 

tion. That formula requires plaintiff to show simply that he satisfies objective job requirements, 

and was rejected for a job the employer was seeking to fill. As the amicus brief filed by the AFL- 
CIO in support of the Government’s position in 4ikens points out, such evidence would lead to an 

inference of intentional discrimination only if the selection criteria were rigid and mechanically 
applied, with selection automatic once the criteria were met. As the brief notes, “that type of 

selection process is rare in our economy.” Brief for Petitioner by AFL-CIO as Amicus Curiae at 

13, Aikens. : 

41. Brief for Petitioner at 29, dikens. 

 



1210 CALIFORNIA LAW REVIEW [Vol. 70:1201 

111 

LEGITIMACY OF THE AZ/KENS STANDARD 

The Government's argument rests on matters related to principle 
and policy. As a matter of principle allegedly rooted in precedent, the 
argument is that the prima facie case should consist of evidence war- 
ranting a finding of intentional discrimination, because that is the ulti- 
mate issue in the case. As a matter of policy, employers should be 
protected from the burden of having 10 produce evidence in court in 
cases in which plaintiffs show no more than that they are among what 
may be a large group of candidates, all of wironrare quatified for a 

given job. 

  

  

  

  

A. Principle and Precedent 

There is in fact nothing strange or anomalous about allowing 
plaintiffs to make out a prima facie case on the basis of evidence that 
stops short of demonstrating a probability of the ultimate fact at issue. 
Courts have regularly created presumptions where they seemed appro- 
priate in order to further the goals of the substantive legal norm at 
issue. A presumption, by definition, requires that certain facts be pre- 
sumed to be true, regardless of whether a factfinder would likely or 
could properly find them to be true on the basis of the evidence 
presented. Thus presumption id to have been created in essen- 
tially two situations: (1) where B (the fact to be presumed) would be a 

permissible inference from A (the evidence triggering the presump- 
tion), but not the only one; and (2) where B would not even be a_per- 
missible inference from A.*> Presumptions are often created in part in 
order to shift the burden of production to the party that has the rele- 

  

  

      

  

  

. 42. F.JaMes & G. HAZARD, supra note 25, § 7.9, at 255. See also id. § 7.9, at 260 (“the 
fact(s), A, which give rise to a presumption of B in many instances are not sufficient to warrant an 

inference of B.”). 

Any previous doubt as to the constitutionality of presumptions in the civil context seems to 

have been resolved, regardless of the strength of the relationship between the evidence triggering 

the presumption and the fact to be presumed. Thus legislative history of rule 301 of the Federal 

Rules of Evidence, which governs presumptions in civil cases, makes clear that the rule is based on 

the premise that such presumptions pose no constitutional problems, even if the basic fact has no 
probative value as evidence of the presumed fact. See 1 J. WEINSTEIN & M. BERGER, WEIN- 
STEIN'S EVIDENCE { 301[01], at 301-24 (1982). The relevant constitutional question is simpl 

whether the presumption serves a rational purpose. See generally Note, Constitutionality of Rebut- 
table Statutory Presumptions, 55 CoLUM. L. KEV. 527, 541 (1955) (“If, on the balancing of conve- 

niences, it is fair to compel the defendant to come forward and he fails to do so, the judge may 

give judgment against him. But this judgment is not a declaration by the court that the facts 

necessary for liability have been established. No evidentiary or inferential process is involved, 
and rational connection is irrelevant. Rather, defendant has defaulted in his obligation and the 
court may impose liability as a penalty for the default.”). 

 



1982] PROOF OF DISCRIMINATORY INTENT 1211 

vant evidence peculiarly within his control.*? 

In title VII disparate impact cases, the courts have long and con- 
sistently held that plaintiffs can make out a prima facie case without 

owing a probabilit Itimate fact at issue. Thus plaintiffs’ ini- 
tial case may consist solely of evidence that an employer’s policies have 
an adverse impact on minorities, despite the fact that the ultimate issue 
in a disparate impact case is whether there is an unjustified impact—an 
impact that is not job related. Once plaintiffs show impact, the burden 
is shifted to the employer to prove job-relatedness.*> The employer 
would suffer an adverse judgment on the merits if it produced no rebut- 
tal evidence, even though there is nothing necessarily unlawful about 
maintaining policies that have a disparate impact. 

Courts have similarly shifted burdens of proof when doing so 
seemed appropriate in order to enforce the federal Constitution's ban 
on intentional discrimination,“ just as it has shifted burdens to enforce 
substantive law norms embodied in legislation governing civil rights’ 
and economic regulation,*® and in the common law of contract*® and 

  

  

  

  

  

  

43. See F. JAMES & G. HAZARD, supra note 25, § 7.9, at 257 (access to evidence as basis for 

presumption of bailee’s negligence when goods are damaged while in bailee’s possession). 
Access to evidence is one of the key considerations determining who bears the burden of 

proof in general. See 9 J. WIGMORE, EVIDENCE § 2486, at 290 (Chadbourne ed. 1981); E. 
CLEARY, McCorMICK’S HANDBOOK OF THE LAw OF EVIDENCE § 337, at 787 (2d ed. 1972); Inter- 

national Harvester Co. v. Ruckelshaus, 478 F.2d 615, 643 (D.C. Cir. 1973); United States v. New 

York, N.-H. & H.R.R,, 355 U.S. 253, 256 n.5 (1957). 
Burdine adopted a particular type of presumption known generally as the “bursting bubble” 

presumption, which shifts the burden of production, but not the burden of persuasion. When the 
party against whom the presumption operates produces the requisite information, the presump- 

tion is said to disappear. Bursting bubble presumptions were established as the federal norm by 

rule 301 of the Federal Rules of Evidence. Such presumptions have been said to operate essen- 
tially as discovery devices. 1 J. WEINSTEIN & M. BERGER, supra note 42, at 301-11 (quoting 
unpublished memorandum from E. Cleary, Reporter, Advisory Committee on Rules of Evidence). 

44. See supra notes 9-14 and accompanying text. 
45. Griggs v. Duke Power Co., 401 U.S. at 432, 433 n.9. In disparate impact cases the de- 

fendant has the burden of persuasion, as well as i is jab: 
46. See, e.g., Castaneda v. Partida, 430 U.S. 482, 495 (1977) (showing of substantial under- 

representation of Mexican-Americans called to serve as grand jurors makes out prima facie case of 
discriminatory purpose, shifting burden of proof to state); Alexander v. Louisiana, 405 U.S. 625, 
631-32 (1972) (same, except blacks underrepresented); Keyes v. School Dist. No. 1, 413 U.S. 189, 
208-10 (1973) (finding of intentional segregation in one part of school system creates a presump- 
tion of intentional segregation in other parts of system, shifting burden of proof to defendant 
school board); ¢f. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971) in o_| 

    
  

  classify school as “white school” or “Negro school” constitutes prima facie case of violation of 

equal protection clause). 
47. See, eg, United States v. Wilder, 222 F. Supp. 749, 753 (W.D. La. 1963) (under Civil 

Rights Act of 1960, statistical evidence created presumption of discrimination shifting burden of 
proof to defendants to show that blacks were not qualified for voter registration). 

48. See, eg, United States v. Aluminum Co. of America, 148 F.2d 416, 444-45 (2d Cir. 

1945) (Hand, J.) (under the Sherman Act, once government showed that cartel intended to de- 

crease imports, it was the cartel’s burden to demonstrate that the market had been unaffected, in 

part because “they to whom the facts were more accessible than to plaintiff ought to prove it”); 

 



  

  

1212 CALIFORNIA LAW REVIEW [Vol. 70:1201 

tort.>® Defendants’ superior access to the relevant evidence is usually a 
major reason for shifting the burden in these cases. The courts ordina- 
rily do not indicate exactly what level of probability plaintiffs must 
show with respect to the particular fact at issue in order to justify shift- 
ing the burden of proof. But it is clear that there is no general principle 
requiring that plaintiffs show that the existence of the fact is more likely 
than not, or indeed that plaintiffs show any other specific level of 
probability. Probability is simply one of a number of factors used by 
the courts in determining which party should bear the burden of proof 
on particular issues. 

There is, therefore, ample precedent for the principle represented 
by the D.C. Circuit’s standard in 4ikens. The real issue is whether the 
standard serves a useful purpose in furthering the substantive goals of 
title VIL 

B. Policy and Practicalities 

There has, of course, been extensive debate in various contexts 

about what Congress’ goals were in enacting title VII. Battles are cur- 
rently being waged over whether the disparate impact doctrine is con- 
sistent with those goals, and over whether the Act was designed to 
permit or to prohibit affirmative action for blacks. But there has never 
been any question as to the fact that one of the central goals of title VII 
is the elimination of intentional discrimination. The Aikens standard 
should be assessed in terms of whether it would further this goal by 
helping courts to determine fairly and accurately whether intentional 
discrimination has entered into an employer’s decision-making process. 
  

Fleming v. Harrison, 162 F.2d 789, 792 (8th Cir. 1947) (under the Emergency Price Control Act, 
once government made a prima facie case that defendant’s prices exceeded statutory maxima, it 

was defendant’s burden to show justification, because of the general rule placing burden of proof 

on party with special knowledge of the relevant facts). 
49. See, eg. , Erving Paper Mills v. Hudson-Sharp Mach. Co., 332 F.2d 674, 677-78 (7th 

Cir.), cert. denied, 379 U.S. 946 (1964). 

50. See, e.g., Jaffe, Res Ipsa Loquitur Vindicated, 1 BUFFALO L. REV. 1, 6 (1951), discussing 

the doctrine of res ipsa loquitur in terms which are quite relevant to the issue in Azkens: 
What justification can there be for putting to a jury a case in which a “rational” 

finding of liability cannot be made? The reason is two-fold. Our experience and under- 
standing of such situations indicates a substantial, if indeterminate, probability of negli- 
gence. In short, there is a substantial probability that the plaintiff may have a cause of 
action. Now ordinarily that fact alone would not warrant a judgment against the de- 
fendant. But typically, if not invariably, in this class of case the defendant has greater 
access to the facts than the plaintiff. This is the significance of the usual requirement for 
res ipsa that the defendant be in “control” of the mischief-working instrumentality. Res 
ipsa loquitur rests on the notion that it is fair to treat the probability as the fact if the 
defendant has the power to rebut the inference. 

See also 9 J. WIGMORE, supra note 43, § 2509, at 507 (“the particular force and justice of the rule 
[res ipsa loquitur], regarded as a presumption throwing upon the party charged the duty of pro- 

ducing evidence, consists in the circumstances that the chief evidence of the true cause, whether 

culpable or innocent, is practically accessible to him but inaccessible to the injured person.”). 

   



1982] PROOF OF DISCRIMINATORY INTENT 1213 

1. Relationship Between the Prima Facie Case and the Presumption of 
Discrimination 

The (ona the relationship between the evidence on which a 
presumption is based, and the ultimate fact to be presumed, is one indi- 
cator of the fairness and utility of that presumption. If there is very 
little connection between the two, there would seem to be an increased 
risk that defendants will be dragged into court for no adequate reason, 
and even that the ultimate facts found will be erroneous. On the other 
hand, where a presumption is based on evidence which indicates that 
the fact to be presumed is reasonably likely, there would seem to be few 
risks in using a mandatory presumption to force defendants to produce 
evidence. 

Under the Aikens standard, as formulated by the D.C. Circuit, 

there is a substantia ip between the underlying evidence and 
the discriminati resumed. Thus to make out a prima facie 
case the D.C. Circuit held that plaintiff had to show that he satisfied all 
known qualifications, including any discretionary qualifications that 
the employer revealed. Plaintiff was to be required on remand to show 
that he was not passed over because of an “absolute or relative lack of 
qualifications.”®! The evidence revealed that white supervisors had 
made the promotional decisions at issue pursuant to a discretionary 
system, with the result that four whites were chosen over the black 
plaintiff for the positions at issue. It does not require a great logical 
leap to presume intentional discrimination under these circumstances. 
Title VII was passed as part of the Civil Rights Act of 1964, against a 
background of pervasive intentional discrimination. While much has 
changed over the last two decades, there can be little doubt that dis- 

criminatory attitudes are still common. And discretionary selection 
systems, relying on the subjective judgment of white decisionmakers, 
have long been deemed suspect by the courts because of their potential 
for masking and implementing bias—both conscious and unconscious. 
Indeed such systems have generally been held violative of title VII on 
these grounds, at least where they have resulted in adverse racial im- 
pact.’? Accordingly, whether or not plaintiff’s prima facie proof in 4z- 
ens demonstrated a probability of intentional discrimination, it 
certainly demonstrated a reasonable likelihood of such discrimination. 

Moreover, rebuttable presumptions mandate that the presumed 
fact be accepted and judgment directed against the defendant, only af- 
ter the defendant refuses to come forward with information. In the 
Aikens situation it is the employer who is in the best position to explain 

  

  

  

  

  

51. 665 F.2d at 1060. 
52. The leading case is Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972).  



1214 CALIFORNIA LAW REVIEW [Vol. 70:1201 

how its promotional system operated, and why white candidates were 

preferred over the qualified black. As indicated below in Subsection 2, 

courts have generally felt that it is appropriate to place the burden of 

producing evidence on the party in control of that evidence. It is en- 

tirely reasonable to conclude that the employer is guilty of intentional 

discrimination if, in the face of a rule requiring that it come forward 

with an explanation of the nondiscriminatory reasons for its action, no 

| such explanation is produced. 

| The Aikens presumption bears a striking similarity to Supreme 

Court doctrine developed in the jury discrimination cases, where the 
ultimate issue is whether state officials are guilty of intentional discrim- 
ination, in violation of the federal Constitution. There the Court has 
held that a “presumption” of discrimination is created where plaintiffs 
produce evidence of: (1) a statistical disparity between the percentage 
of blacks in the relevant population and their percentage of jurors se- 
lected, together with (2) the existence of a subjective system for select- 
ing jurors.>® The rationale for these decisions has included the notion 
that subjective systems lend themselves to abuse, together with the fact 

| that defendant is in the best position to produce evidence as to the rea- 

| sons for the exclusion of disproportionate numbers of blacks. 

| 

  

2. Relationship of the Presumption to the Production of Relevant 
Information 

a. Access to Information 

RB Presumptions are often created, in part, to further the discovery of 

vital information by putting the burden of production on the party with 
primary access to that information.>* The presumption created by the 
D.C. Circuit in Aikens is well-designed to further the goal of getting 

| before the court evidence that is essential to an understanding of how 
| the employment decision at issue was made, and whether illicit intent 

played some part in it. 
Thus under the Aikens standard, once plaintiffs have presented ev- 

idence that they satisfy all known qualifications, defendants are re- 
quired—10 produce evidence as to how they actually evaluated 
qualifications.” Placing the burden of production on the employer to 
explain how it assesses qualifications makes sense because the manner 

    

  

  

  

53. See, eg, Castaneda v. Partida, 430 U.S. 482, 494 (1977) (selection procedure that is 

“susceptible of abuse” supports presumption of discrimination raised by statistical showing); Tur- 
ner v. Fouche, 396 U.S. 346, 360 (1970) (grand jury selection procedure that involves subjective 
judgment rather than objective criteria supports similar presumption raised by statistical 

showing). : 
54. See supra note 43. 

 



1982] PROOF OF DISCRIMINATORY INTENT 1215 

in which a discretionary selection system operates is information 
uniquely within the employer’s control. Such systems tend to operate 
in unknown and unforeseeable ways. Relatively few have been formal- 
ized and systematized. When discretion is built into an employment 
system, decisionmakers are ordinarily given broad leeway to assess a 
variety of subjective and objective factors they may deem relevant. In- 
deed the Government admits in its A7ikens brief that often even the 
employer will not know how a particular discretionary decisionmaking 
process operates to determine who is most qualified until the actual 
selection decision is made.” If plaintiffs cannot find out how a given 
discretionary system operates, they cannot make out a case that they 
are more qualified under that system than other candidates.>® 

b. Discovery of Information 

Arguments have been made that presumption ry 
for discovery p " pment of the modern discovery 
system. The Government brief in Azkens relies on such arguments, 
stating that plaintiffs can find out everything in discovery that they 
could find out from the defendant’s rebuttal at trial.>’ 

There is obvious appeal to the idea of forcing plaintiffs to find out 
everything possible relevant to their claim prior to trial, and then dis- 
missing cases at the close of plaintiffs initial proof where there is insuf- 
ficient evidence to sustain a claim of intentional discrimination. 
Defendants would be protected from the burden of putting on elabo- 
rate defenses to frivolous cases, and courts would be protected from 

having to sit through such defenses. 
However, the value of presumptions in cases like 4ikens cannot be 

so easily cast aside. The availability of discovery prior to trial is simply 
not a complete and adequate substitute for the presumption at trial. 
The Government's argu in the face of the realities of litiga- 

  

  

  

  

55. “An employer might realize that a particular quality or attribute would be desirable for 

the position he is filling only when he sees that quality in an applicant.” Brief for Petitioner at 24 

n.18, Aikens. 
56. Justice Marshall argued when the Aikens case was previously before the Court that 

plaintiffs’ difficulties in finding out how such systems operate justified imposing the burden of 

production on the employer: 
An applicant who has satisfied the objective qualifications established by the employer 
for promotion may have no way of knowing what additional considerations the em- 
ployer relied on in selecting a particular person among the pool of qualified applicants. 
This information is uniquely within the control of the employer, and thus it places an 
unfair burden on the plaintiff to require him, as part of his prima facie case, to guess 
what additional considerations the employer might have relied on and to prove that even 
under these considerations he was at least as qualified as the selected applicant. 

United States Postal Serv. Bd. of Governors v. Aikens, 453 U.S. 902, 906 n.2 (1981) (Marshall, J., 

dissenting). 
57. Brief for Petitioner at 31, Aikens. 

 



1216 CALIFORNIA LAW REVIEW [Vol. 70:1201 

tion. The simple truth is that in the absence of the Aikens presump- 
tion, it will often be impossible for plaintiffs to provide at the prima 
facie stage the kind of comparative evaluation of candidates demanded 
by the Government’s standard. This is because first, the defendant’ S 
incentives to . e 
quite different from the incentives operating at trial, and second, the 

existence of the presumption at trial affects the dynamics of both the 
discovery process and the trial. 

i. Incentives to Produce Information. Under the Government's 
proposed standard, the defendant would have little incentive to be 
forthcoming with information in pre-trial discovery. Burdine tells the 
employer that his ultimate burden is simply to articulate a non-discrim- 
inatory reason for his action. Defense counsel are likely to feel that this 
can be used to justify some very conclusory statements in response to 
discovery requests regarding the nature of the employer’s selection sys- 
tem, and the reasons white candidates were chosen over blacks. In the- 

ory, of course, the scope of discovery goes far beyond evidence that 
would be necessary or admissible at trial. However, defendants are not 
likely to be punished for evasive answers; or for vague and general 
answers; or for refusals to respond that are coupled with colorable 
claims that the requests call for information that is unnecessary, or that 
would be unduly burdensome to produce, or that is privileged.’® In 
order to force information from a reluctant defendant, plaintiffs will 

| have to seek court orders to compel discovery, based on a showing as to 
why the particular information at issue is important. 

  

  
  

  

Only plaintiffs with access to significant resources wi to 
take full advantage of the discovery process. Depositions, motions to 
CO 0 impose sanctions are all expensive. Costs of 
such discovery, including costs for attorneys’ fees, will ordinarily be 
recoverable only if plaintiffs ultimately prevail on the merits.’ 

Moreover, courts are unlikely to impose any sanction unless de- 
fendants are guilty of deliberately flouting obviously reasonable discov- 
ery requests, or of disobeying a direct and specific court order. And the 
kind of sanction that the government suggests as a possibility—a find- 
ing that plaintiff has met his prima facie case as discussed above at 
page 1209—is extremely rare. 

  

58. Defendants often successfully resist requests for discovery related to comparative qualifi- 

cations on privacy and other grounds. See, e.g., Keyes v. Lenoir Rhyne College, 552 F.2d 579, 581 
(4th Cir.), cert. denied, 434 U.S. 904 (1977) (upholding district court refusal to compel discovery of 

_ confidential evaluations of faculty members); McKillop v. Regents of the Univ. of Cal., 386 F. 

Supp. 1270, 1277 (N.D. Cal. 1975) (district court refusal to compel discovery based on state statu- 

tory “official information” privilege). 
59. Title VII provides that the “prevailing party” may recover reasonable attorneys’ fees. 

Civil Rights Act of 1964, § 706(k), 42 U.S.C. § 2000e-5(k) (1976). 

  
 



1982] PROOF OF DISCRIMINATORY INTENT 1217 

The Government’s standard would, moreover, provide defendants 
with a strong incentive to resist discovery, because if plaintiffs were 
unable to find out enough during discovery to make out a persuasive 
case of intentional discrimination during their intitial presentation of 
proof, they would lose without defendants ever having to present 
evidence. 

The reality is, therefore, that plaintiffs would be denied the infor- 
mation essential to a prima facie case in many cases, and that in other 
cases they would obtain it only at the cost of wasteful discovery battles. 

The Aikens presumption puts defendants in a very different posi- 
tion with respect to disclosing vital evidence. If they fail to come for- 
ward at trial with evidence that the judge considers adequate to satisfy 
their burden of production, they will suffer an adverse judgment on the 
merits. Moreover, while under Burdine defendants have no obligation 
to show that their articulated reasons are real or reasonable, and while 

technically the burden of persuasion will be on plaintiffs to prove illicit 
motive, defendants are likely to fear that if they introduce only the bare 
minimum of evidence required by Burdine, the factfinder is more likely 

to be persuaded by plaintiff's showing of intent. Defendants are thus 
likely to introduce evidence in some detail as to how their selection 
systems operate and how candidates’ qualifications are evaluated, in 
order to show their good faith. It is this kind of detail that Burdine 
indicated may be necessary if plaintiffs are to prove such illicit intent as 
may exist. 

Justice Powell, writing for a unanimous Court in Burdine, seems 
consciously to have considered these kinds of litigation practicalities. 
He specifically recognized that the pressures of the litigation situa- 
tion—defendants’ fear of losing—provide a useful incentive for defend- 
ants to produce meaningful, detailed information. 

  

60. In finding that plaintiff can expect a “clear and reasonably specific” explanation, afford- 

ing it an adequate opportunity to demonstrate defendant’s illicit intent, Justice Powell states: 

[A]lthough the defendant does not bear a formal burden of persuasion, the defendant 
nevertheless retains an incentive to persuade the trier of fact that the employment deci- 
sion was lawful. Thus, the defendant normally will attempt to prove the factual basis for 
its explanation. 

Burdine, 450 U.S. at 258. The Government also recognizes these litigation practicalities. It notes 
that at trial the defendant will have an incentive to “introduce evidence that the plaintiff in fact 
had the shortcoming assigned as the reason for his rejection; that the successful candidate did not 
have that shortcoming or was otherwise better qualified; or that its practices generally show no 
sign of discrimination.” Brief for Petitioner at 32 (citing McDonnell Douglas Corp. v. Green, 411 

U.S. at 804-05). The Government urges that employers should not be subject to the burden of 
having to make such a showing. But it would also be a burden for the employer to provide 

plaintiffs with comparable information at discovery. It seems clear that what the Government 
seeks is a standard that would free the employer from ever having to provide such information, 

whether at discovery or at trial, and free courts from ever having to assess complex analyses of 
comparative qualifications, whether upon plaintiff's initial case or upon defendant’s rebuttal.  



1218 CALIFORNIA LAW REVIEW [Vol. 70:1201 

The Aikens presumption thus operates as an alternative to discov- 
ery which may be necessary in a variety of situations due to limitations 
on plaintiffs’ resources, the refusal of defendants to cooperate with dis- 

covery, and traditional judicial reluctance to enforce discovery obliga- 
tions with effective sanctions. 

il. Dynamics of the Discovery and Trial Process. In addition, the 
Aikens presumption should affect the dynamics of the discovery pro- 
cess in such a way as to enable plaintiffs to learn what they need to with 
relative efficiency. This is because the presumption means that defend- 
ants will have to be prepared to put on evidence at trial as to the rea- 
sons for their selection decisions, and the manner in which their 

selection procedures work. This in turn means that in discovery plain- 
tiffs will be able to focus in on defendants’ prospective proof, and make 
pointed inquiries into what that proof will consist of, what witnesses 
defendants expect to rely on, and the like. 

By contrast, under the Government’s standard, even if plaintiffs 

were able to obtain in pre-trial discovery all needed information, dis- 
covery requests would have to be extraordinarily wide-ranging. Proof 
at trial would be similarly complicated. Given all the ways in which a 
particular discretionary system might measure various subjective and 
objective factors, plaintiffs’ counsel would have to explore in discovery 
and present at trial extensive evidence in an attempt to eliminate all 
possible rational explanations for why their clients might have been 
found less qualified than those selected. Plaintiffs’ counsel would want 
access to all candidates’ personnel files, and would want to examine in 

detail the various ways in which qualifications might have been mea- 
sured by the employer. Under the Aikens standard, plaintiffs might 
‘seek much of the same information, but they would not be required to, 

and they would not have to present an elaborate case of comparative 
qualifications based on a number of different hypothetical evaluative 
systems, in order to survive a defendant’s motion for judgment at the 
close of plaintiff’s case. Unlike plaintiff, defendant should know how 
its selection system operated in any particular case, and should be able 
to present that simply and efficiently at the rebuttal stage. 

The Aikens standard would do nothing to discourage plaintiffs 
from pursuing discovery. Plaintiffs’ counsel have a strong incentive to 
find out all they can in discovery, regardless of what the formal stan- 
dard at the prima facie proof stage is. They will usually want to make 
the most persuasive case they can in their initial presentation of proof, 

  

Thus, the Government notes the difficulties of assessing comparative qualifications in cases where 

many kinds of criteria and many different subjective judgments may be considered relevant. It 
argues that “zhe only way to avoid such inquiries is a dismissal of the complaint . . . on the ground 
that plaintiff has failed to prove a prima facie case.” Brief for Petitioner at 34 (emphasis added). 

 



1982] PROOF OF DISCRIMINATORY INTENT 1219 

to avoid any risk of dismissal; and they will be in a far better position to 

deal with defendant’s rebuttal evidence if they know what to expect. 
The Aikens standard would simply operate to make discovery more 
efficient and effective, and to provide an alternative means of forcing 
the production of relevant evidence for those situations in which the 
discovery process has failed. And it should operate to expedite presen- 
tation of proof at trial. 

Finally, the Aikens standard serves some functions that discovery 
cannot serve. It forces the employer to the stand to make an account- 
ing of some sort to the factfinder. This may be far more revealing than 
would be the disjointed story told by hostile employer witnesses called 
by plaintiff as a result of what he learned in formal discovery.®! 

Elimination of the Aikens presumption is not necessary to free de- 
fendants and the courts from the burden of frivolous suits. Burdine’s 
substantive standard makes it extremely difficult for plaintiffs ulti- 
mately to win any case in which the employer relies on a discretionary 
selection system involving elements of subjective judgment. Such a 
system, by its very nature, has a great deal of pliability. Employers can 
with relative ease come up with non-discriminatory explanations for 
their selection decisions. These explanations will not likely look so out- 
rageous as to enable plaintiffs to persuade the factfinder that the expla- 
nations are mere pretexts, shielding intentional discrimination. Since 
plaintiffs will prevail only in cases where they are able to prove that 
defendants’ explanations are not credible, or to find the proverbial 
smoking gun, they would be foolish to pursue cases in which they have 
no good reason to believe that such evidence will be available. Unless 
plaintiffs ultimately prevail on the merits, they cannot recover the costs 
of bringing suit.°? If the claims are found to be frivolous, costs—in- 
cluding attorneys’ fees—may be assessed against plaintiffs.®® There are 
thus strong financial disincentives against bringing non-meritorious 
claims to court. 

CONCLUSION 

The Government argues in its Aikens brief that its proposed stan- 
dard should be adopted because otherwise the disparate treatment doc- 
trine would impose excessive burdens on employers to defend their 
  

61. See Jaffe, supra note 50, at 13-14 (arguing that discovery procedures have not made the 

res ipsa loquitur doctrine obsolete, because “being able to ask an opponent questions, albeit with- 
out risk, is inferior to the right to compel him to make on his own initiative a full accounting”). 

62. See supra note 59. ; 
63. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (“A district court may in 

its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that 
the plaintiff's action was frivolous, unreasonable, or without foundation even though not brought 

in subjective bad faith.”).  



  

1220 CALIFORNIA LAW REVIEW 

practices in court.** However, the Supreme Court just recently pro- 
vided significant protections for employers when it held in Burdine that 
they had no burden of persuasion in a disparate treatment case but, 
instead, had simply to produce a nondiscriminatory explanation for 
such treatment. Moreover, as indicated above, the disparate treatment 
doctrine as defined by Aikens poses a relatively limited burden on or 
threat to employers in the context of discretionary, subjective decision- 
making on the managerial level. 

The disparate treatment doctrine does, nonetheless, remain impor- 

tant. It may be the only available route to challenging complex employ- 
ment systems that rely on discretion and subjective judgment, since it is 
not clear that courts will apply the disparate impact doctrine to such 
systems. And if there is a general cutback on the impact doctrine’s 
applicability, the disparate treatment doctrine may come increasingly 
to define the meaning of title VIL 

Moreover, the disparate treatment challenge is often an essential 
step in discovering how the employer’s system operates. Thus, in re- 
buttal to the disparate treatment challenge, the employer may reveal 
for the first time what kinds of objective criteria and subjective judg- 
ments it relies on in making employment decisions. This discovery 
provides plaintiffs with at least the possibility of asking the court to 
consider further, more specific challenges to particular practices or cri- 
teria under either the impact or the treatment doctrine.® 

A crucial aspect of the courts’ interpretation of title VII to date has 
been the insistence that employers and their representatives come into 
court to defend themselves. It has been through this process that the 
courts have learned what various employment systems look like. This 
understanding has enabled the courts to develop and refine title VII 
jurisprudence to deal with the problems perceived. Burdine recog- 
nized the importance of this tradition in holding that employers would 
at least be required to produce relevant information at trial. The dan- 
ger of the Government's position in 4zkens is that, by encouraging dis- 
missal at the close of plaintiffs’ /nizia/ presentation of evidence, it would 
deprive courts of information vital to their understanding of challenged 

employment systems, and to the continuing development of appropri- 

ate title VII law. 

  

  

64. Brief for Petitioner at 11. 
65. Bartholet, supra note 8, at 1006. 

66. 1d. at 990-98. 

 





 



  

STATISTICAL EVIDENCE IN EMPLOYMENT DISCRIMINATION CASES 

May, 1982 

Herbert I. Weisberg 

Thomas J. Tomberlin 

Analysis and Inference, Inc. 

Boston, Massachusetts 

This research was supported in part by Contract No. J-9-E-0-0058 from the 

United States Department of Labor, Office of Federal Contract Compliance 

Programs. However, the opinions expressed are the authors' alone and do 

not necessarily represent the official position of OFCCP. The authors 

wish to thank William Fairley, Richard Goldstein, Penelope Greene, and 
Michael Meyer for helpful comments on earlier drafts. 

 



  

ABSTRACT 

Statistical methods in general, and multiple regression analysis in 

particular, are being used’ increasingly to provide evidence in employ- 

ment discrimination cases. While the technical issues in using statis- 

tical methods to detect discrimination are straightforward, the con- 

ceptual 138053 are much less clearly understood. The purpose of this 

paper is to provide a framework to help clarify the conditions under 

which an estimated effect can be properly attributed to discrimination. 

Several inter-related issues have caused particular confusion, including 

the distinction between disparate impact and disparate treatment, the 

definiation of test bias, the use of "reverse regression", proxy 

variables for true productivity, and measurement grrops A simple mathe- 

matical model is developed to analyze the precise nature of these issues 

It is concluded that although employment discrimination cases involve 

all the usual problems involved in causal inference from observational 

data, certain aspects of the legal context may facilitate the valid 

application of statistical techniques. 

! 

 



  

INTRODUCTION 

The use of statistical methods to provide evidence in employment 

discrimination cases has been increasing rapidly in recent years. In 

particular, multiple regression analysis has gained both popularity 

and notoriety. Finkelstein (1980) points out that although the first 

published suggestion for applying multiple regression to employment 

discrimination cases appeared as recently as 1975, Title VII class 

actions had by 1979 become dominated by complex statistical analysis, 

often creating difficulties for presiding judges lacking advanced 

statistical training. 

Statistical analyses in the context of discrimination cases raise 

both conceptual and technical issues. Technical issues-include the 

choice of method (multiple regression, logit analysis, log-linear 

analysis, etc.) and the verification of model assumptions (linearity, 

normality, homogeneity of variance, etc.). While these considerations 

may be complicated, the general principles are well understood by 

statisticians. 

The conceptual issues in applying statistical analysis to "prove" 

discrimination are far less clear. What precisely do the usual methods 

tell us about discrimination, and under what circumstances can they 

be trusted? How can we be certain that an estimated effect is in 

fact attributable to employment discrimination? 

The dependent variables of interest in employment discrimination 

cases tend to be either continuous (e.g., salary, salary increment) 

or dichotomous (e.g., hiring, promotion, termination). For a continuous 

 



  

suk fhe 
2 Ani lent 

5 ek 
v5 ah na) 

“4 X) 

outcome, such as salary, the usual approach is to estimate the mean 

salary for the groups being compared, say males and females, after 

adjusting for indicators of productivity or tualificaticns. The 

simplest atin is to form sublgroups, or strata, that are identical 

in terms of a few key variables like year-of-hire and education. 

The mean differences in salaries between the groups within strata are 

then calculated. To obtain an overall finding, the data are aggregated, 

_using a method for combining independent statistical tests (Rosenthal, 
  

1977) or a weighted average (Fairley et al., 1980) 

Multiple regression analysis provides an alternative method for 

testing an overall effect of discrimination, when its assumptions are 

plausible. Salary as the dependent variable is regressed against 

qualification variables and an ‘'indicator of group membership. A 

significant coefficient corresponding to the group indicator variable 

is interpreted as evidence of discrimination. This way of using regres- 

sion to estimate the effect of discrimination is often" called the 

analysis of covariance (ANCOVA). Alternatively, separate regression ni ln fon 

models for the different groups may be carried out and compared. Gry 

The trade-offs among the different techniques depend on assump- 

tions about the mathematical form of relationships. From our point of 

view, these particularities are less important than the general 

characterization of all such methods. All these methods are based on 

the idea of testing the difference in salary distributions between 

groups conditional on some measures of qualifications. 

 



  

Similarly, when the outcome is dichotomous, there are several 

techniques from which to choose. Multiple regression can sometimes 

be applied, even though its assumptions are not met precisely. Logit 

regression, log-linear analysis, and standardization are other alterna- 

tives (see Anderson et al, 1980). Conceptually, these approaches 

are identical to those described above, differing only in mathematical 

form, providing that we have complete data on the dependent variable. 

Often, however, information is retained only on those individuals 

who are successful. That is, we can determine the characteristics of, 

say, those hired by the firm, but we do not know either the total | 
a —— = —— 

—— gl T o 

number rejected or their characteristics. In such a situation, we 
  

clearly cannot regress hiring as a dependent variable against group 

membership and qualification variables. So the usual form of statis- 

tical analysis is not applicable. 

However, there may exist independent sources of information (0.9. 

Bureau of Labor Statistics) on the proportion of affected class members 

(e.g., women) among those with a given level of qualifications in the 

general labor market available to the employer. This proportion repre- 

sents a baseline against which the corresponding proportion for those 

hired can be compared. A relatively small proportion of women among 

those hired is interpreted as evidence of discrimination. 

Finally, it has recently been proposed that discrimination can onl rye 

LN 
be measured by comparing the qualifications for different groups 30% 

ATH? 

receiving a specified outcome. If, for example, women who are hired 2 

0 

 



  

have lower average qualifications than men, this might seem to indicate 

discrimination against men. ‘This reversal of the roles of salary ‘and 

qualifications has been proposed by Roberts (1979) and its theoretical 

rationale elaborated by Dempster (1981). 

All of these methods have intuitive appeal. They appear to be 

providing evidence on employment discrimination. However, it is pos- 

sible’ for various alternatives to produce different and even conflict- 

ing conclusions. So it is important to understand when the various 

approaches are appropriate. The purpose of this paper is to develop 

a conceptual framework that will help statisticians and social scientists 

to avoid errors in applying statistical methods to employment discrimina- 

tion data. 

Because we are interested in conceptual rather than technical 

issues we will not consider the specific problems posed by small 

sample sizes. In effect, we will be assuming the availability of very 

large samples, so that the precision with which parameters can be 

estimated and the significance level of tests are not important issues. 

MODELLING EMPLOYMENT DISCRIMINATION 

DEFINITION OF DISCRIMINATION 

To develop statistical models, we require an operational defini- 

tion of discrimination. This problem of definition is non-trivial 

and has been addressed implicitly in the regulatory schemes that have 

out-lawed specific types of discrimination (e.g., race or sex discrimina- 

tion) and in the numerous individual cases that have been decided. 

5 

 



  

Without pretending to settle this complex issue, we will adopt 

a fairly general definition that seems to capture what is generally 

meant by discrimination. We will define discrimination to be the 

differential treatment of individuals on the basis of certain imper- 

missible variables describing group membership. For example, the 

employer is discriminating on the basis of sex if sex plays any role, 

either implicitly or explicitly, in the employer's decision-making 

process. 

Of course, it is difficult to elicit evidence on this process 

directly. Usually, we can observe only the results or outcomes of 

the employer's decisions. Since there are many possible explanations 

for these outcomes, unless we have exhausted all possible legitimate 

explanatory factors, we cannot be sure that differences between groups 

are in fact attributable to discrimination. More precisely, we would 

require information on all the legitimate information that we might 

reasonably expect the employer to have available or to obtain. Any 

difference in the way groups are treated that cannot be explained by 

such legitimate factors constitutes discrimination. 

Note that if we could measure all the legitimate explanatory 

factors, then a difference in outcome after conditioning on these 

factors would indeed indicate discriminatory treatment. Regardless 

of the precise mechanism by which jobs are filled and salaries assigned, 

a systematic difference in outcome (once all legitimate explanatory 

factors, have been used) can occur only if some other factor related 

to group membership is being taken into account by the employer, either 

implicitly or explicitly. Thus, we can define discrimination operation- 

“B= 

 



  

    

ally to mean a difference in outcomes across groups after controlling 
ec — 

for all legitimate explanatory factors. However, the usefulness of 
CS —— TS ———————e 

this definition depends on our ability to specify and measure the 

  

factors which could in principle provide legitimate explanations for 

differences among groups. 

We can imagine a hierarchy of standards for non-discriminatory 

behavior, depending on the stringency with which we define legitimate 

factors. At one extreme, we can allow only specific job-related 

occupational requirements with demonstrated validity. Under this 

standard, the employer would be discriminating unless variation in 

outcomes across groups could be completely explained by differences 

in those individual qualifications available to the employer. Any 

component of the variation not explainable by such factors could be 

attributed to discrimination. 

At the other extreme, we could consider any variable other than 

that describing group membership itself to be legitimate. For exam- 

ple, the employer might take geographical location of an applicant's 

residence into account, even if blacks tend to live in different 

areas from whites. Under this very permissive standard, the employer 

would be discriminating only if no set of factors could account for 

the observed difference between groups. Discrimination would effec- 
Am—— 

tively become only that component of the variation between groups 

  
  

  

  

    

  

      

CS t— 

__that resulted from explicit use of group membership by the employer " pnen~b 
“hehe baddiiue SR / 

in making decisions. Woo 

eer gertaly : Tg | 

 



  

Between these extremes lies a large gray area to be considered 

in the context of each particular case. In our view, the legitimacy 

of various explanatory factors must ultimately be decided by the court 

in each case on the basis of information about the circumstances under 

which the employer is operating. In the absence of such a determina- 

tion, the very definition of discrimination will be ambiguous, so 

that no analysis, statistical or otherwise, can be expected to produce 

a clear inference about its existence. 

STATISTICAL REPRESENTATION OF DISCRIMINATION 

In this section we develop a methematical model that will facil- 

itate discussion of several important issues. For simplicity, we will 

assume that there exists a single well-defined variable Q that repre- 

sents the legitimate explanatory factors. All the results derived 

hold equally if Q is a multidimensional vector. For concreteness, 

we will sometimes refer to Q as a measure of the true qualifications, 

or true productivity, for each individual. 

Let F represent the forbidden factors, such as ethnic group mem- 

bership and/dr gender. For simplicity, we will often consider F to 

be gender only, although the principles will apply quite generally. 

Thus, 

F=0 if individual is male 

F:= 1 if individual is female 

Finally, we define S to be a measure of reward or benefit which for 

simplicity we will think of as salary. 

“8 

 



  

When we speak of the distribution of variables such as S, F, and 

Q, however, we must be careful in defining the populations to which 

these distributions refer. Depending upon what outcome is of interest 

(e.g., salary, hiring), different reference populations would be used. 

For example, in studying discrimination in hiring, we may be interested 

in the population of applicants or of individuals in the general labor 

market. For promotions, we may refer to all current employers or to Lov 

or 7 
some particular subset. For salary, we might focus on current employees, x al 

4) 

on all current and former employees, or on the general labor market. Ent 

The precise nature of the discrimination being studied will depend 

on the particular reference population. For example, if we restrict 

consideration to job applicants in studying hiring patterns, we can 

detect discrimination in the selection phase of hiring, but will have 

no information on recruitment. If the firm attempts to discourage 

females from applying, we would need broader data on potential appli- 

cants, as well as those who actually applied, in order to detect this 

effect. 

We will assume that a suitable reference population has been 

defined for the purpose of investigating discrimination in a particu- 

lar personnel action such as selection. All distributions are relative 

to this population. Let p represent the probability density function 

over this population. Then p(Q,F) is the joint distribution of Q and 

F in the reference population. This distribution can generally be 
—— 

  p— 

regarded as outside the employer's control with respect to the action 

under investigation. 

 



  

For any firm, there will be a comp] ex process by which individuals 

in the reference population are selected for positions and salaries. 

Because of its complexity, this mechanism can be regarded as a random 

or probabilistic process. In particular, for individuals with given 

qualifications and sex, there will be a probability of obtaining a 

particular satis of S. Thus, the snployer's actions tpl tettly 

determine the conditional distribution p(S|Q,F). 

Now if the ennloyer is not discriminating, according to the 

definition developed above, there can be no systematic variation of 

S that is related to F, once Q has been taken into account. That is, 

p(S|Q,F) = p(S]Q) (1) 

So equation (1) represents a null hypothesis that is consistent 

  

  
  

     

  

with nondiscrimination 

   To be pr , however, we should note that (1) is also consis- 

tent with certain subtle forms of discrimination. For example, sup- 

pose we subdivide the firm by department, division, location of 

facility, time period, etc. Then it is possible that the distri- : 

butions of S conditional on Q differ from males and females within 

certain subdivisions, but. that the overall distributions for the firm 

are virtually identical. That is, there may exist a variable X such 

that for some values of X 

«10- 

 



  

even though, 

psia.Fxntxla. Flax. 
X 

p(s|q) (3) 

p(S|Q,F) 

While this sort of exact cancellation of effects across groups is 

somewhat far-fetched, the general problem of varying discrimination 

across sub-groups is of practical importance. ps 

In general, if the employer is not discriminating, there should 

be no aspect of the distribution of S that varies systematically 

with F, conditional on Q. So for any variable X characterizing the 

population members, we would have 

   4 p(S|Q,F,X) = p(5]Q,X) a (4) 

ft Ferrin 4h &7) 
As a theoretical condition, equation (4) reflects what is 

  

generally meant by non-discrimination. But this condition cannot 

be tested fully, because there is a limitless set of possible varia- 

bles X to consider. In practice, a choice must be made based on 

both theoretical and technical considerations. Theoretical concerns 

focus on where within the firm discrimination is most likely and 

= ile 

 



  

most serious. Technical concerns focus on the precision of estimation 

that is possible when we subdivide the total population into small 

subsets. The more fine-grained our analysis in pursuit of specific 

areas of discrimination within the firm, the more difficult it be- 

comes to marshal adequate evidence. (See Scott (1979) for an elabora- 

tion of this point in the: context of higher education.) For clarity 

of sxposition. we will assume throughout this paper that an overall 

average estimate is of interest and will ignore the practical 

complexities of subdivision that confront the analyst in actual 

employment discrimination cases. Fe 

DISPARATE TREATMENT VERSUS DISPARATE IMPACT MODELS 

A distinction is made in the law between discrimination that re- 

sults from disparate treatment and discrimination that results from 

disparate impact (See Baldus and Cole, 1979). Disparate treatment 

refers to a situation where an employer is explicitly dealing with 

individuals on the basis of forbidden variables. (See McDonnell- 
  

Douglas Corporation v. Green, 411 U.S. 792 (1973)). Let V represent 
  

the employer's true assessment or valuation of the individual's 

qualifications. Then V represents all the information about Q actu- 

ally available to the employer. It follows that 

p(S|V,Q,F) = p(S|V,F) (5) 

a: fw) ve, 
-l2- 

 



  

Now suppose that in addition to V, the employer uses information 

about F in personnel decision-making, so that 

P(S|V,F) # p(S|V) (6) 

Then the employer is guilty of disparate treatment. That is, absence 

of disparate treatment would imply 

p(S|V,F) = p(S|V) (7) 

In practice the employer will have available only imperfect 

information about true qualifications. When V and Q are not the 

same, even if the employer is not explicitly using information re- 

garding group membership (e.g., race or sex) in making personnel 

decisions, so that there is no disparate treatment discrimination, 

there remains the potential for discrimination in the form of dis- 

parate impact. (See Griggs v. Duke Power Company, 401 U.S. 424 (1971).) 
    

For example, an employer could specify a minimum height requirement 

that effectively eliminates women but may in fact be irrelevant to 

job performance, or use a standardized test which Blacks tend to fail 

disproportionately, but which is unrelated to true job requirements. 

Note that since (5) implies 

p(S[Q,F) = best p(V|Q,F)av (8) 

-13- 

 



  

then 

P(S{Q,F) = sm p(V|Q,F)dV (9) 

But we also have 

p(s[Q) = isin p(V[Q)dV (10) 

Therefore, according to our definition of discrimination, the employer 

is discriminating if and only if 

p{31Q,F) £ p{3]Q) (11) 

However by (9) and (10), this will occur only if 

Biririini fr. p(V|Q,F) # p(V[Q) | (12) 

Therefore, the use of V as a basis for distribution of outcomes will 

be discriminatory if and only if (12) holds. In that case, individuals 

with a given set of qualifications tend to have different levels of 

V in a way that is related to F. Thus, treatment of these individuals 

on the basis of V will result in a disparate impact in terms of out- 

comes. 

In terms of statistical evidence, the distinction between dis- 
  

parate treatment and impact is not particularly important, because 

~14- 

 



  

in both cases equation (1) is an appropriate null hypothesis for detect- 

ing discrimination. In fact, it is possible for both kinds of discrimina- 

tion to be operating together in an actual situation. For example, a 

test may be more difficult for Blacks with given qualifications than 

it is for Whites and,in addition, Blacks with a given test score may 

be treated worse than Whites achieving an equal score. In terms of 

: statistical evidence, equation (1) remains the condition reflecting 

absence of discrimination, regardless of the specific mechanism 

generating the discrimination. 

Of course, if the criterion V is known, and measurable there may 

exist additional non-statistical information on the relationship between 

V and Q. Evidence of the relationship between such a criterion and 

relevant qualifications often involves considerations that go well 

beyond the data at hand. Expert testimony and qualitative discus- 

sion about the relationship between V and Q may be important. For 

example, the question of whether a particular standardized test is 

valid in evaluating applicants for police training may involve a 

detailed analysis of specific tasks performed by police officers. 

It is interesting that although (12) follows directly from our 

basic definition of discrimination, it represents the reverse of the 

traditional definition of "test bias" (See Cleary, 1968.). Until 

very recently at least a test was said to be biased with respect to 

F unless the regression of Q against V was identical in different 
  

groups, i.e., 

-15- 

 



  

5 

p(Q|V,F) = p(Q[V) : (13) 

This condition was interpreted to say that V predicted true perform- 

ance or ability in the same way for each group. 

In the last ten years this definition has been re-appraised by 

numerous critics (See Darlington, 1971; Thorndike, 1971; Cronbach, 

1976; Ling, 1976; Petersen and Novick, 1976). The current Consensus 

of psychometricians seems to be that notions of test bias and the 

fatrness of selection procedures based on tests involve value con- 

siderations and therefore cannot be defined unambiguously. 

While not providing a general solution to the problem of test 

bias, the results of this section suggest an unambiguous interpre- 

tation of bias in the context of discrimination cases. Unless, 

p(V|Q,F) = p(V|Q) (14) 

for the test used as the basis for distributing rewards, the test 

will produce discrimination in the form of disparate impact. 

: ANALYSIS OF DISCRIMINATION DATA: TRUE QUALIFICATIONS KNOWN 

COMPARING OUTCOMES 

As noted above, the distinction between disparate impact and 

disparate treatment is not particularly relevant to statistical 

analyses. In terms of a statistical model equation (1) represents 

-18- 

 



  

the condition for nondiscrimination, and (14) may be regarded as an 

alternative Stetetent of this condition that is of practical importance 

only when V is known. In that case, analysis may be based on either 

S or V. Since the mathematical form of (1) and (14) is identical it 

is not necessary to consider them separately. For simplicity in 

what follows we will discuss S only. 

As mentioned in the introduction, there exist a variety of par- 

ticular statistical methods that can be used to accomplish essentially 

the same purpose. The basic idea underlying these techniques is to 

compare average outcome values for men and women who are equal in 

terms of Q in order to eliminate the explanatory effects of unequal 

qualifications. 

The various methods make somewhat different assumptions about 

the mathematical form of p(S|Q,F). For an extensive discussion of 

the considerations in selecting appropriate methods, see Anderson 

et al. (1980). 

AVAILABLE LABOR POOL APPROACH 

Intuitively, it seems obvious that if women, say, are being 

discriminated against, there will be relatively fewer women re- 

ceiving various desirable outcomes than would be expected on the 

pails of true qualifications. For example, the proportion of 

women among all individuals with a given level of qualifications 

hired by the firm may be lower than the proportion of women among 

=17s 

 



  

those having such qualifications in the reference population or "labor 

market." So if the analyst can obtain data on the available labor 

pool, a comparison between the observed and expected proportion of 

protected class individuals can be made. 

This method is particularly useful in situations where data 

onunsuccesstul candidates have not been retained by the firm. In 

that situation, the method of comparing outcomes is impractical, 

because we cannot, for example, compute the proportion of females 

with given qualifications, who are hired. However, we may have 

external data on the proportion of females in the labor pool among 

those with a given set of qualifications. = 

While this labor market availability analysis makes sense, it 

is not obvious that it provides a valid test of discrimination as 

we have defined it. To clarify this question, let us translate the 

method into a mathematical form. Suppose that S is a variable indi- 

cating whether or not a member of the reference population is hired: 

1 if hired wm
 

n" 

0 if not hired ‘ wn
 n 

Then the proportion of women among those with a given level of quali- 

fications in the reference population is p(F|Q), and the proportion 

among those hired is p(F|S,Q). Equating these, we obtain the condition 

p(F|S,Q) = p(F|Q) (15) 

=13- 

 



  

It is not difficult to show that (15) and (1) are mathematically 

equivalent. In fact, both are alternative ways of describing the 

fact that S and F are independent, conditional on Q. Because (15) 

and (1) are equivalent, a test based on the null hypothesis (15) 

will provide valid evidence of discrimination as we have defined 

it. So we have shown that this approach results in a valid test 

of discrimination because (15) and (1) are mathematically equivalent. 

THE REVERSE REGRESSION APPROACH 

As mentioned above, Roberts (1979) has suggested that the 

condition 

  

    p(Q|S,F) # p(Q|S) (16) 
  

also implies discrimination. The raticnale is that with no discrimination 

the requirements for obtaining a position with salary S should be 

identical for men and women. Therefore, we might expect the re- 

sulting distributions of Q given S for the two groups to be the 

same. 

The problem with this logic is that there may exist a relation- 
    

  

ship between Q and F in the reference population prior to any action 

taken by the employer. Therefore, the qualifications for men and 
A ATI co oat a SNES ——— 

women with a given value of S can be different even with no discrimin- 

I i —— pe etie™™™ 

  

    

ation. 

———— 

-10- 

 



  

Finkelstein (1980: p. 749) provides two illustrations showing that 

reverse regression may fail to find discrimination when it does occur, 

or may suggest discrimination against the advantaged group when in 

fact no discrimination exists. For another very simple example, 

suppose a company wishes to select six individuals for a particular 

position. There are ten males and ten females available. They are 

all scored a a test that has been validated as a perfect predictor 

of future productivity, with the following results: 

Males: 40, 50, 60, 50, 70, 75, 80, 90, 95, 95 
  — 

Females: 30, 35, 55, 60, 60, 75, 75, 75, 85, 90 
—— 

Then, if the employer selects only on the basis of this index, he 

  will choose the top four men and the top two women to obtain 

Selected Group: 80(M), 85(F), 90(M), 90(F), 95(M), 95(M) | 

Note that although the requirements for men and women are identical, 

the distribution of qualifications will differ between the males and 

females selected. In particular, the average level of Q for males 

selected is 90.0, while that for women is 87.5. 

Does this represent discrimination against males, who seem after 

the fact to have had more stringent standards applied? Clearly not.     
O00 

 



  

It simply represents the application of a non-discriminatory rule in 

a situation where the marginal distributions of the two groups differ. 

The conditional probability of Q given S is determined not only by 
  

  

the employer's requirements, but also by the pre-existing population 
aaa 

distribution for the groups. 
Sie 

In general terms, we can write 

  

    

  

p(S]Q,F)p(Q,F) 
p(Q|S,F) = (17) 

p{S;F) . 
  

If the employer is not discriminating, then it follows from (1) that 

p(S|Q)p(Q|F) 
p(Q|S,F) = (18) 

lpisiopirae 
  

However, since in general it is true that 

_ p(s[Q)e(Q) 

Jp(siQ)p()d ; 
  p(Q[S) 

it can certainly be true that (16) will occur despite the fact that 

the employer is not discriminating. / 4 : 

 



  

Only when the distribution of Q in the reference population is 

identical for males and females i.e., p(Q|F) = p(Q), does (16) provide 

evidence of discrimination because in that special case it also 

implies that (1) does not hold. Except in this special case, 

equation (16) does not necessarily imply discrimination. 

One of the reasons why this conclusion may seem problematic is 

that it appears to imply a certain unfairness from the standpoint of 

the employer. Suppose, for example, that the average qualifications 

for males receiving a given salary are higher than for females 

receiving the same salary. Then it may appear that the employer 

could increase the overall level of productivity in the firm by 

setting more stringent selection standards for females. Dempster 

(1981) has suggested that it seems unfair to prohibit the employer 

from using objective knowledge about the relative qualifications 

° 

of the two groups in personnel decisions. However, as our simple 
  

——— 
example suggests, the employer can do no better than to select 2 A 
  

  

  

strictly on the basis of Q if Q is known. A ~ or 

If Q is not kriou, so that V#Q, it may in fact be possible to p = = 

raise the overall average level of productivity in the firm by 5 er 

discounting somewhat the valuation for females. Whether it is in 

society's interest to allow such discounting is a social policy question 

closely akin to that with which the test bias theorists have recently 

been concerned. 

As a matter of current law, however, it seems clear that such dis- 

counting would constitute discrimination since the employer would be 

making use explicitly of forbidden variables. Thus, while the employer 

«22. 

 



  

might feel that prohibition of certain information places a costly 

restriction on decision-making, the restriction is implied by cur- 

rent law and may be considered unfair only to the extent that the 

law itself is deemed unfair. 

ANALYSIS OF DISCRIMINATION DATA: TRUE QUALIFICATIONS UNKNOWN 

THE USE OF PROXY VARIABLES 

We have been assuming so far that the variable Q is available 

to the analyst. However, Q is really a hypothetical quantity useful 

in defining discrimination but not generally measurable.” In nearly 

all practical situations, the analyst must make use of proxy variables 

Q' that are imperfectly related to Q. In this section, we will discuss 

the relationship between Q and Q' that must hold in order for the use 

of Q' by the analyst to be valid. Note that this issue is quite 

different from the relationship between Q and the variable V used by 

the employer. We showed above that the use of V by the employer will 

involve no discrimination only if 

p(V|Q,F) = p(V|Q) (20) 

We will now show that Q' must satisfy a different condition in order 

to be useful to the analyst detecting discrimination. 
  

oe 

 



  

Variables like education, seniority, and years of relevant prior 

experience are often. used for this purpose, because they are relatively 

easy to obtain. To the extent that these variables reflect some of 

the legitimate explanatory factors, they would seem to be valuable as 

a substitute for the unknown Q. That is, we would like to test the 

null hypothesis 

p(S|Q',F) = p(S|Q'). (21) 

Under what conditions will the rejection of this hypothesis consti- 

tute evidence of discrimination? 

We can write 

p(10°,F) =[p(s10.0" Fela] Fe (22) 

and 

p(s[Q") = [pisla.0Jetala ao 2. (a3) 

Therefore, if 

p(S[Q',F) # p(S]Q") (24) 

«24 

 



  

then we must have either 

p(s|Q.,Q',F) # p(S[Q,Q") (25) 

or 

p(QlQ',F) # p(Ql)) (26) 

Let us shonete first that 

p(Q|Q',F) = p(Q[Q"). (27) 

This equation may be interpreted as saying that the remaining legitimate 

factors in addition to those in Q' must have similar distribution for 

different groups. So any observed difference after conditioning on 

Q' cannot be attributed to a difference in true qualifications. Then 

we have shown that under this condition, (24) implies (25). 

But (25) means that there exists discrimination conditional on 

Q'. For example, suppose that Q' is a variable representing each 

employee's current job category. Then if (27) holds and we compare 

males and females after controlling for job category, we oa detect 

discrimination in the prior assignment of employees to the various 

categories. In general, if (27) holds and (24) is true, then we have 

evidence of discrimination conditional on Q'. 

Now suppose that (27) does not hold. Then it is possible for 

(24) to be true even in the absence of discrimination, since there may 

be additional factors related to F after conditioning on Q' that could 

«25. 

 



  

provide legitimate explanations for observed differences. Without 

detailed information on the nature and effects of such factors we 

cannot interpret (24) to reflect discrimination. 

Since the joint distribution of Q, Q', and F involves individual 

characteristics existing prior to the decision-making process, it 

may be possible to obtain information, or at least intuition, on the 

relationship among these variables in the reference : population. If 

a plausible argument can be made that (27) holds, we can use Q' to 

obtain statistical evidence of discrimination. If not, we have no 

firm basis for attributing an observed difference after conditioning 

on the qualification proxies to discrimination. 

Finally, note that by comparing (20) and (27) we see that (27) 

and (20) are different conditions. For a variable X to provide a 

non-discriminatory basis for decision-making it must satisfy 

p(X|0Q,F) = p(X[Q) (28) 

and to be useful as a proxy for analytic purposes it must satisfy 

p(Q X,F) = p(Q}X) (29) 

By applying the laws of conditional probability, it is easy to show 

that these conditions are mutually inconsistent unless 

p(Q[F) = p(Q) . (30) 

26m 

 



  

Thus, we reach the seemingly paradoxical conclusion that a variable 

that is valid for decision-making cannot be used for analysis. 

For example, suppose that an employer is contemplating the use 

of a particular standardized test to replace a costly interview process 

currently in use. Suppose further that an investigator is analyzing 

the company's hiring process to determine whether it is biased. Then 

if the test is satisfactory- for the employer, it cannot be suitable 

for the investigator's purposes, and vice versa. 
  

THE CLASSICAL MEASUREMENT ERROR MODEL: UNDERADJUSTMENT 

One particular form of relationship between Q' and Q is often 

assumed. This model derives from situations in which Q' differes from 

Q by virtue of measurement error. That is, Q' is assumed to be an 
  

imperfect or fallible measure of an underlying true score Q, and 

equation (1) is assumed to hold in terms of this true score. 

Such error is extremely common for many psychological measures. 

For example, a particular test of mathematical ability may reflect 

random factors varying across testing occasions as well as the indi- 

vidual's true ability. The classical measurement model for such a 

test (See Lord and Novick, 1968) is 

<7 

 



  

E(e|T) 1} oO
 

—
 
w
 

nN
 

Ne
er

 

Var(e|T) 1] Q 
nN
 

—
 
w
 
w
 

S
r
”
 

where 

Y = observed score 

T = true score 

e = random measurement error. 

The random error e is assumed to vary across testing occasions in 

a way that is unrelated to T or to other attributes of the individual. 

Considerable confusion has arisen out of the attempt to apply this 

model in employment discrimination cases. It is sometimes assumed, as 

in Roberts (1979), Wolins (1978), and Finkelstein (1980) that the 

particular relationship between Y and T in the classical measurement 

error model describes the relationship between Q and Q'. That is, 

Q' is regarded as an imperfect measurement of a "true score" Q; it 

is imagined to consist of Q plus "random noise". 

The problem in adopting this model is that its assumptions are 

less innocuous than they appear. In particular, under the measure- 

ment error model the errors are "random" conditional on Q. Therefore, 
  

p(Q'[Q,F) = p(Q'[Q). (34) 

-28- 

 



  

Under this assumption it follows from an argument similar to that 

in the section on reverse regression that (34) is frconpatisle with 

(27) unless (30) is true, so that except in this special case the 

use of such a Q' is inappropriate. 

More specifically, it can be shown that under this model, the 

effect of adjustment by Q' is to remove part but not all of the 

initial difference between groups. For example, under the usual 

linear model, it follows easily from standard theory (See Cochran, 

1968) that the remaining bias after adjustment is proportional to 

1-R, where R represents the reliability (see Lord and Novick, 1968) 
  

of Q' as a measure of Q. So unless there is no measurement error 

(R=1), the use of Q' will result in an underadjustment. 

While the classical measurement model is often blindly accepted, 

there is reason to question it in the current context. Suppose, 

for example, we are using education as a proxy for productivity. 

Should education be regarded as productivity plus random error, as 

in equation (34), or is the reverse model (27) in which productivity 

is regarded as education plus error more appropriate? 

In most cases, there is little theoretical basis for adopting 

the classical model. The classical measurement model represents a 

special set of assumptions that must be justified in particular cases. 

Regression using a proxy Q' could result in underadjustment, over- 

adjustment, or no bias at all, depending on the actual relationship 

between Q and Q' (see:Cochran and Rubin, 1973; Weisberg, 1979). 

«20 

 



  

REVERSE REGRESSION AND MEASUREMENT ERROR 

The original motivation for Roberts' reverse regression suggestion 

was the recognition of the problems caused by measurement error. Roberts 

assumed that the classical model described the relationship between Q 

and Q'. Thus, the underadjustment described above would necessarily 

occur. This underadjustment bias results from error in the indepen- 

dent variable, but it is well known that no bias will result from the 

use of a fallible variate as the dependent variable. Roberts reasoned 

that since salary could be measured without error, bias could be 

eliminated by treating S as the independent variable and Q as the 

dependent variable. 

We showed above that the null hypothesis tested by this approach 

is not consistent with that specified by our definition of discrimina- 

tion (1). However, that definition.is stated in terms of the true 

qualifications Q. Suppose that reverse regression is applied with 

a proxy Q'. We can write 

p(Q"[S,F) - [ota ja.m p(Q|s,F)dQ (35) 

and 

p(Q'[S) - [pia i0.0 2(0]$)dQ (36) 

«30> 

 



  

The meaning of the condition 

p(Q’' |S,F) = p(Q*'|S) (37) 

will thus depend on the joint distribution of Q, Q', S, and F. 

Suppose further that the classical measurement assumptions hold, 

as Roberts assumed in his study. It follows that 

p(Q'[Q,S,F) = p(Q'[Q,S) = p(Q'|Q) : (38) 

From (35), (36), and (37) then, we deduce that (37) holds if and 

only if (15) is not true. Thus, the use of (37) as a criterion for 

non-discrimination suffers from the same problems as the use of (15) 

for discrimination. 

SUMMARY AND CONCLUSIONS 

We have tried to clarify in this paper the conditions under 

which an inference of discrimination can be drawn on the basis of 

statistical analysis. We have defined discrimination to be the 

differential treatment of equally qualified individuals on the basis 

of certain impermissible variables describing group membership. We 

have argued that a general condition for testing discrimination is 

p(S|Q,F) = p(s]Q) 

=31- 

 



  

where F represents the forbidden variables, Q represents legitimate 

explanatory factors, and S the outcome variable. In the special case 

when a variable V is used as the sole basis for decisions about S, 

an equivalent formulation of non-discrimination was shown to be 

p(V|Q,F) = p(V|Q) 

Thus, if a test score is used to determine who is hired, promoted, etc., 

the test may be said to be biased in the sense of generating a disparate 

impact if this condition is not satisfied. or 

The general condition can be re-stated to say that-S and F must 

be independent after conditioning on Q, which is also equivalent to 

p(F|S,Q) = p(F|Q) . 

A test of non-discrimination can therefore be carried out in principle 

using any method that tests one of these equivalent statistical hypo- 

theses. 

When the outcome variable is dichotomous (hiring, promotion, 

termination) there may be data only for the successful candidates. It 

is possible to test for discrimination in this situation, providing 

that external information on the reference population is available. 

«32. 

 



  

The alternative formulation of non-discrimination proposed by 

Roberts (1979) 

p(Q|s,F) = p(Q]s) 

was shown ts be misleading. The distribution of 0 for a given S in 

the two groups does not depend entirely on the employer's decision. 

It is determined in part by the relative distributions of Q among 

males and females in the population. 

In theory, our ability to infer discrimination depends on being 

able to measure all legitimate explanatory factors. Unfortunately, 

instead of Q we are generally forced to rely on one or more proxy 

variables Q'. The ability to obtain unbiased estimates or valid 

tests depends on the relationship between Q and Q'. 

One special form of this relationship is often assumed to hold, 

the classical measurement error model. Under this model, Q' is 

imagined to consist of Q with random error added. This model implies 

that an underadjustment will necessarily occur, resulting in a bias 

that generally favors the group with lower overall levels of qualifi- 

cations. Although this underadjustment is a consequence of this 

special model, it is often imagined to characterize the application 

of statistical methods to such data generally. 

We have suggested, on the contrary, that the use of proxy variabies 

in place of Q can result in either an underadjustment or an overadjust- 

ment. A condition that insures valid tests and unbiased estimates was 

shown to be 

233. 

 



  

p(Q[Q',F) = p(Q[Q") 

That is, conditional on the qualifications observed, the remaining 

qualifications must have similar distributions across the classes 

being compared. While this condition makes. sense conceptually, 

there is no way to validate it absolutely, because explicit measures 

of Q cannot be obtained by the analyst. 

In one sense, this situation is simply a special case of the 

general problem of causal inference from nonexperimental data. In 

several subject areas where rigorous experimental contro] is not 

feasible, there has been lively controversy among methodologists 

about the extent to which valid causal inferences are possible. 

Statisticians have traditionally been extremely cautious about using 

statistical methods to control for bias in such situations (See Wold, 

1956; Cochran, 1965; Lord, 1967). 

However, discrimination cases may prove to be an area where such 

methods are particularly applicable, providing their limitations are 

clearly understood. In many of the other fields where nonexperi- 

mental research is undertaken Ga. education, economics, sociology, 

epidemiology, medicine), the possible explanatory factors, or con- 

rounding variables, in addition to the treatment or risk factor of 

interest, are virtually limitless. Thus, it is often very difficult 

to make a convincing argument that all important variables have been 

considered or that those remaining are equally distributed for dif- 

“34. 

 



  

ferent levels of the study factor. But the factors that might legiti- 

mately explain an employer's decisions about individuals may sometimes 

be 1imited to a manageable number that can be identified. Even if 

such a subset cannot be defined, some consensus on the magnitudes of 

effects attributable to other factors might generate bounds on the 

effect attributable to discrimination. 

Finally, the legal process in civil cases recognizes the impos- 

sibility of absolute proof and is obligated to reach a finding based 

on the "preponderance of evidence." This problem is quite different 

from that faced, for example, by the clinical researcher testing the 

effectiveness of a new medication. Because the researcher must 

provide evidence to a general scientific audience that has no means 

for questioning him/her about the steps taken to control possible 

sources of bias, statisticians are understandably reluctant to relin- 

quish the safeguards built into rigorous experimental control. However, 

when opportunity for extensive cross-examination exists, the possiblilty 

of serious errors may be minimized. 

Of course, we can never achieve certainty that bias is absent 

from our analyses. The best we can do is to select qualification 

proxies that can plausibly be argued to satisfy equation (27). 

Reaching consensus on appropriate proxies might be facilitated by 

adopting FlInkelstein's (1973, 1980) suggestion to divide cases into 

separate phases. In the first phase, the court could delimit the 

data to be analyzed by the opposing parties, and then, in the second, 

a! -35- 

 



  

arguments could deal primarily with analytic approaches. The first 

phase could focus on the specification of legitimate explanatory factors 

and the plausible relationship between potential proxies and these ; 

theoretical constructs. In resolving these pivotal conceptual issues, 

the court should not be confused by irrelevant technical considerations. 

«36+ 

 



  

REFERENCES 

ANDERSON, S., AUQUIER, A., HAUCK, W.W., OAKES, D., VANDAELE, W., and 
WEISBERG, H.I. (1980) Statistical Methods for Comparative Studies. 
New York, John Wiley and Sons. 
  

BALDUS, D.C. and COLE, J.W., (1980) Statistical Proof of Discrimination. 
McGraw Hill, New York. : 
  

CLEARY, T.A., (1968) Test Bias: Prediction of grades of Negro and White 
Sse in integrated colleges. Journal of Educational Measurement, 
5, 115-124. 
  

COCHRAN, W.G. (1965) The planning of observational studies of human 
populations. Journal of the Royal Statistical Society, Series A, 
128, 234-256. 
  

COCHRAN, W.G. (1968) Errors of Measurement in Statistics. Technometrics, 
Vol. 10, No. 4, 637-666. 

  

COCHRAN, W.G., RUBIN, D.B. (1973) Controlling Bias in Observational 
Studies: A Review. Sankhya, The Indian Journal of Statistics, 
Series A Vol. 35, Part 4, 417-446. 
  

  

CRONBACH, L.J. (1976) Equity in selection--khere psychometrics and 
political philosophy meet, Journal of Educational Measurement, 13, 

31-42. 
  

DARLINGTON, R.B. (1971) Another look at "cultural fairness." Journal 
of Educational Measurement, 8, 71-82. 
  

DEMPSTER, A.P. (1981) Causal Inference Prior Knowledge, and the 
Statistics of Employment Discrimination. Harvard University. 

FAIRLEY, Ww.5., SCHARFF, L.C. and TOMBERLIN, T.J. (1980) Measures of 

Potential Costs of Employment Discrimination to Disadvantaged Employees. 
Analysis and Inference, Inc. 

FINKELSTEIN, M.0. (1973) Regression models in Administrative Proceedings. 
Harvard Law Review, 86, 1442. 
  

FINKELSTEIN, M.0. (1980) The judicial reception of multiple regression studies 

in race and sex discrimination cases. Columbia Law Review, 80, 737-754. 
  

LINN, R.L. (1976) In Search of fair selection procedures, Journal of 

Educational Measurement 13, 53-38. 
  

  

 



  

LORD, F.M. (1967) A paradox in the interpretation of group comparisons. 
Psychological Bulletin, 68, 304-5. 
  

LORD, F.M. and NOVICK, M.R. (1968) Statistical Theories of Mental Test 
Scores. Reading, Massachusetts, Addison-Wesley. 
  

PETERSEN, M.J. and NOVICK, M.R. (1976) An evaluation of some models for 
culture=-fair selection, Journal of Educational Measurement, 13, 
3-30. 
  

ROBERTS, H.W. (1979) Harris Trust and Savings Bank: An Analysis of 
Employee Compensation. Report 7946. ; 
  

  

ROSENTHAL, R. (1978) Combining results of independent studies. Psychologi- 
cal Bulletin 85, 185-193. 

  

  

SCOTT, E.L. (1979) Linear models and the law: uses and misuses in 
affirmative action. Proceedings of the Social Statistics Section, 
American Statisticial Association Annual Meeting. 
  

THORNDIKE, R.L. (1971) Concepts of culture-fairness. Journal of Educational 
  

Measurement, 8, 63-70. 

WEISBERG, H.I. (1979) Statistical adjustment and uncontrolled studies, 

Psychological Bulletin, 86, 1149-64. 
  

  

WOLD, H. (1956) Causal inference from observational data. Journal of the 
Royal Statistical Society, Series A, 119, 28-60. 
  

WOLINS, L. (1978) Sex Differentials in salaries: Faults in analysis 
of covariance. Science, 200, 717. 

  

 



  

JUSTICE POWELL 

On General Standards re Proof: 
  

A "particularized" showing would 
require--as I understand it--that there 
was intentional race discrimination in 
indicting, trying, and convicting 
Stephens, and presumably in the state 
appellate and state collateral review 
that several times followed the trial. 
If the Baldus study is similar to the 
several studies filed with us in 
Sullivan v. Wainwright, the statistics 
in studies of this kind, many of which 
date as far back as 1948, are merely 
general statistical surveys that are 
hardly particularized with respect to 
any alleged "intentional" racial 
discrimination. Surely no contention 
can be made that the entire Georgia 
judicial system, at all levels, operated 
To dtscriminate in all cases. Arguments 
to this effect may have been directed to 
the type of statutes addressed in 
Furman. As our subsequent cases make 
clear, such arguments cannot be taken 
seriously under statutes approved in 
Gregg. 

  

  

  

  

Stephens v., Kemp, 104: 8.Ct. 562, 564 n.-2 (1984). 
  

"It should be apparent from the 
decisions of this Court since Gregg was 
decided that claims based merely on 
general statistics are likely to have 
little or no merit under statutes such 
as that in Georgia." 

Stephens, at 564-65. 
  

On Race and Death Penalty (from Furman) 
  

Justice Powell, at 2833. 

Certainly the claim is justified that 
this criminal sanction falls more 
heavily on the relatively impoverished 
and underprivileged elements of society. 
«ws That is, indeed, .a tragic 
byproduct of social and economic 

deprivation, but is is not an argument 
of constitutional proportions under the 

“lw 

 



  

Eighth or Fourteenth Amendments. The 
same discriminatory impact argument 
could be made with equal force and logic 
with respect to those sentenced to 
prison terms... :. The root causes of 
the higher incidence of criminal 
penalties on 'minorities and the poor’ 
will not be cured by abolishing the 
system of penalties. 

Finally, yet another theory for 
abolishing the death penalty. . . is 
predicated on the discriminatory impact 
argument. . . . Mr. Justice DOUGLAS 
finds the punishment cruel and unusual 
because if is 'arbitrarily' invoked.... 
Whatever may be the facts with respect 
to jury sentencing, this argument calls 
for a reconsideration of the 'standards' 
aspects of the Court's decision in 
McGautha.,: . . . 1 see no reason to 
reassess the standards question 
considered so carefully [therein]. 
Having so recently reaffirmed our 
historic dedication to entrusting the 
sentencing function to the jury's 
'untrammeled discretion,' it is 
difficult to see how the Court can now 
hold the entire process constitutionally 
defective under the Eighth Amendment. 

after quoting from Blackmun in Maxwell v. Bishop: 
  

But, Maxwell does point the way to a 
means of raising the equal protection 
challenge that is more consonant with 
precedent and the Constitution's 
mandates than the several courses 
pursued by today's concurring opinions. 
A final comment on the racial 
discrimination problem seems 
appropriate. The possibility of racial 
bias in the trial and sentencing process 
has diminished in recent years. The 
segregation of our society in decades 
past, which contributed substantially to 
the severity of punishment for 
interracial crimes, is now no longer 
prevalent in this country. Likewise, 
the day is past when juries do not 
represent the minority group elements of 
the community. The assurance of fair 
trials for all citizens is greater today 
than at any previous time in our 

er 

 



  

Furman, at 

On Remedy: 
  

Powell, in 

history. Because standards of criminal 
justice have "evolved" in a manner 
favorable to the accused, discriminatory 
imposition of capital punishment is far 
less likely today than in the past. 

2833. 

dissent, Vasquez v. Hillery, 106 S.Ct. 
  

Those cases hold, or clearly imply, that 
a conviction should not be reversed for 
constitutional error where the error did 
not affect the outcome of the case." at 
626-27. "The Court does not contend 
that the discriminatory selection of the 
grand jury that indicted respondent 
calls into question the correctness of 
the decision to indict." 1d., at 629. 

On Proof of Specific Discriminators: 
  

617 £1986) 

Justice Powell, dissent in Rogers v. Lodge, 102 S.Ct. at 

3231: 
  

The District Court and Court of Appeals 
in this case based their findings of 
unconstitutional discrimination on the 
same factors held insufficient in 
Mobile. Yet the Court now finds their 

conclusion unexceptionable. The Mobile 
plurality also affirmed that the concept 
of "intent" was no mere fiction, and 
held that the District Court had erred 
in "its failure to identify the state 
officials whose intent it considered 
relevant, Id., at. 74 n. 20, 100-S.CL., at 
$503 n. 20." Rogers, at 3281. 

On General Standard re Proof: 
  

Justice Powell, Crawford v. Board of Education, 10 
32711 (1982) fwriting for the Court, finding no 14th 
Amendment violation; M dissents; B1l/Br concur.]. 

  

"We would agree that if Proposition I 
employed a racial classification it 
would be unconstitutional unless 
necessary to further a compelling state 
interest.. . .: But, Proposition lI does 
not embody a racial classification." 
Id., at 3217. 

2: S.Ct. 

 



  

On Proof-Amount of Statistical Disparity Required-Jury 

Selection: 
  

  

Justice Powell, Dissenting in Castaneda v. Partida, at 1290, 

n. 4: 
  

The remainder of the [jury] cases 
involve severe limitation of a 
minority's participation by token 
inclusion: Sims v. Georgia, 389 U.S. 
404, 88 S.Ct. 523, (1967). (Negroes 
constituting 24.4% of the taxpayers 
limited to 4.7% of those on the grand 
jury list); Jones v. Georgia, 389 U.S. 
24, 88 8.Ct. 4 (1967) - (Negroes 
constituting 19.7% of the taxpayers 
limited to 5% of those on the jury 
ist); Whitus v. Georgia, 385 .0.S,. 545, 
87 S.Ct. 643 (1967) (Negroes 
constituting 27.1% of the taxpayers 
limited to 9.1% of fthe.grand jury 
venire); Arnold v. North Carolina, 376 
U.S. 773, 84 8.Ct. 1032 (one Negro juror 
in.24 vears); FEubanks vy. Louisiana, 356 
U.S, 584,78 §.Ct. 970 (1958) (one Negro 
juror in 18 years); Cassell v. Texas, 
3390.8. 282, 70 8.C+.:-629 41950) 
(limitation of one Negro juror on each 
panel); Smith v. Texas, supra, (five 
Negro grand jurors in a 7-year period). 

Castaneda, at 1290. 
  

On Proof-Amount of Statistical Disparity Required- 

Governmental Appointments: 
  

  

Justice Powell, Mayor of City of Philadelphia v. Educational 
Fquality League, 94 S.Ct. 1323 (1974). {(wW/Br/M/Douglas, 
dissenting) 

"Statistical analyses have served and 
will continue to serve an important role 
as one indirect indicator of racial 
discrimination in access to service on 
governmental bodies, particularly where, 
as in the case of jury service, the duty 
to serve falls on all citizens. 
{citation omitted]. But the simplistic 
percentage comparisons undertaken by the 
Court of Appeals lack real meaning in 
the context of this case, . . . 
Furthermore, the District Court's 
concern for the smallness of the sample 

-4- 

 



  

presented by the 13-member Panel was 
also well founded. 

¥Id., at 1333. 

 



  

JUSTICE STEVENS 
  

On Georgia capital statute, generally: 
  

Justice Stevens, concurring in Pulley v. Harris: 
  

"To summarize, in each of the statutory 
schemes approved in our prior cases, as 
in the scheme we review today, 
meaningful appellate review is an 
indispensable component of the Court's 
determination that the State's capital 
sentencing procedure is valid. Like the 
Court, however, I am not persuaded that 
the particular form of review prescribed 
by statute in Georgia--comparative 
proportionality review--is the only 
method by which an appellate court can 
avoid the danger that the imposition of 
the death sentence in a particular case, 
or a particular class of cases, will be 
so extraordinary as to violate the 
Eighth Amendment. Id., at 884. 

On Proof-Amount of Statistical Disparity Required-Total 

Numbers Disadvantaged: 
  

  

Justice Stevens, Personnel Administrator v. Feeney, 

concurring, at 2297: 
  

. . . for me the answer is largely 
provided by the fact that the number of 
males disadvantaged by Massachusetts’ 
veterans' preference (1,867,000) is 
sufficiently large--and sufficiently 
close to the number of disadvantaged 
females (2,954,000)--to refute the claim 
that the rule was intended to benefit 
males as a class over females as a 

class. 

 



  

JUSTICE WHITE 

On Death Penalty Generally, (from Furman): 
  

" . . [Wlhen imposition of the penalty 
reaches a certain degree of infrequency, 
it would be very doubtful that any 
existing general need for retribution 
would be measurably satisfied. Nor 
could it be said with confidence that 
society's need for specific deterrence 
justifies death for so few when for so 
many in like circumstances life 
imprisonment or shorter prison terms are 
judged sufficient, or that community 
values are measurably reinforced by 
authorizing a penalty so rarely invoked. 

But common sense and experience tell us 
that seldom-enforced laws become 
ineffective measures for controlling 
human conduct and that the death 
penalty, unless imposed with sufficient 
frequency, will make little contribution 
to deterring those crimes for which it 
may be exacted. 
. ov [My] :conclusion .. . < is:that the 
death penalty is exacted with great 
infrequency even for the most atrocious 
crimes and that there is no meaningful 
basis for distinguishing the few cases 
in which it is imposed from the many 
cases in which it is not. 

[Powell, fn. 19, at 2827, provides estimates of 20% range on 
imposition of death penalty among death-eligibles]. [at 
2829, noting estimate of 10% rate of return of death 
sentences] 

Furman, at 2764. 

On Race & Death Penalty: 
  

Justice White, Gregg v. Georgia, 
  

"The questionnaire contains, inter alia, 
six questions designed to disclose 
whether race played a role in the case, 
and one question asking the trial judged 
whether the evidence forecloses 'all 
doubt respecting the defendant's guilt." 

The Georgia Legislature has plainly made 

an effort to guide the jury in the 

i 

 



  

exercise of its discretion, while at the 

same time permitting the jury to 
dispense mercy on the basis of factors 
too intangible to write into a statute, 
and I cannot accept the naked assertion 

that the effort is bound to fail. 
Gregg, at 2947. . « . 1t becomes 
reasonable to expect that juries--even 

given discretion not to impose the death 
penalty--will impose the death penalty 

in a substantial portion of the cases so 
defined. If they do, it can no longer 
be said that the penalty is being 

imposed wantonly or freakishly or so 
infrequently that it loses its 
usefulness as a sentencing device... . . 
[ discussion of Ga. Supreme Court role. 
«. « ] Petitioner has wholly failed to 
establish, and has not even attempted to 
establish, that the Georgia Supreme 
Court failed properly to perform its 
task in this case or that it is 
incapable of performing its task 
adequately in all cases; and this Court 

should not assume that it did not do so. 

Gregg, at 2949. 

"petitioner's argument that prosecutors 
behave in a standardless fashion in 
deciding which cases to try as capital . 
felonies is unsupported by any facts." 

Gregg, at 2949, 

On Race & Death Penalty [characterization of Gregg]: 
  

Justice White, Pulley v. Harris, 104 S.Ct. 871 (1984). 
  

"In Gregg, six Justices concluded that 
the Georgia system adequately directed 
and limited the jury's discretion. The 
bifurcated proceedings, the limited 
number of capital crimes, the 
requirement that at least one 
aggravating circumstance be present, and 
the consideration of mitigating 
circumstances minimized the risk of 
wholly arbitrary, capricious, or 
freakish sentences. In the opinion 
announcing the judgment of the Court, 
three Justices concluded that sentencing 
discretion under the statute was 
sufficiently controlled by clear and 

Ge 

 



  

objective standards [citation omitted]. 

In a separate concurrence, three other 

Justices found sufficient reason to 

expect that the death penalty would not 

be imposed so wantonly, freakishly, or 

infrequently as to be invalid under 

Furman. 

Pulley, at 877. 

On General Standards re Proof: 
  

Justice White, Rogers v. Lodge, 102 S.Ct, 3272 (1932). 

P/R/S in dissent. 
  

"Cases charging that multimember 
districts unconstitutionally dilute the 

voting strength of racial minorities are 
thus subject to the standard of proof 
generally applicable to Equal Protection 
Clause cases. Washington v. Davis and 
Arlington Heights v. Metropolitan 
Housing Dev. Corp. made it clear that in 
order for the Equal Protection Clause to 
be violated, "the invidious quality of a 
law claimed to be racially 
discriminatory must ultimately be traced 
to a racially discriminatory purpose." 
Id, at-3275. fn 57 Purposeful racial 
discrimination invokes the strictest 
scrutiny of adverse differential 
treatment. Absent such purpose, 
differential impact is subject only to 

the test of rationality. 

On General Standards re Proof: 
  

Justice White, concurring in Stevens' decision finding no 
1585 §1982 violation in City of Memphis v. Greene, 101 S.Ct. 

(1981): 
  

"Phe District Court held that while the 
closure of West Drive in Memphis, Tenn. 
would have a disproportionate impact 
upon certain black residents of Memphis, 
the evidence did not support a finding 

of a purpose or intent to discriminate. 
Neither was the disparate impact "so 
stark that a purpose or intent of racial 
discrimination" could be inferred. 

On Proof-Amount of Statistical Disparity Required-Total 
  

Numbers Disadvantaged: 
  

 



  

Justice White, Personnel Administrator v. Feeney, 
concurring, at 2297: 
  

«. «. «. for me the answer is largely 7 
provided by the fact that the number of . . 
males disadvantaged by Massachusetts’ whet is un andl 
veterans' preference (1,867,000) is 
sufficiently large--and sufficiently 
close to the number of disadvantaged 
females (2,954,000)--to refute the claim 
that the rule was intended to benefit 
males as a class over females as a 
class. 

On Proof-Amount of Statistical Disparity Required-Jury 
Selection: 
  

  

Justice White, White v. Regester, 412 U.S. 755, 93 S.Ct. 
2332 (1973) 
(Br/M/Do concurring in part, dissenting in part). 

  

"Insofar as the Digtrict Court's 
judgment rested on the conclusion that 
the population differential of 9.9% from 
the ideal district between District 3 
and District 85 made out a prima facie 
equal protection violation under the 
Fourteenth Amendment, absent special 

Justification, the court was in error. . 
cow [W]e cannot glean an equal 
protection violation from the single 
fact that two legislative districts in 
Texas differ from one another by as much 
as 9.9%, when compared to the ideal 
district. Very likely, larger 
differences between districts would not 
be tolerable without justification 
'based on legitimate considerations 
incident to the effectuation of a 
rational state policy,' [citations 
omitted], but here we are confident that 
appellees failed to carry their burden 
of proof insofar as they sought to 
establish a violation of the Equal 
Protection Clause from population 
variations alone. The total variation 
between two districts was 9.9%, but the 
average deviation of all House districts 
from the ideal was 1.82%. Only 23 
districts, all single member, were over- 
represented or underrepresented by more 
than 3%, and only three of those 
districts by more than 5%. We are 

10 

 



  

unable to conclude from these deviations 
alone that appellees satisfied the 
threshold requirement of proving a prima 
facie case of invidious discrimination 
under the Equal Protection Clause. 
Because the District Court had a 
contrary view, its judgment must be 
reversed in this respect. 

Id., at 2338-39. 

On Proof-Amount of Statistical Disparity Required-State 
Legislative Redistricting: 
  

  

Justice White, Gaffney v. Cummings, 412 U,S.:735,:93 S.Ct. 
2321: (1973). 
  

"The Board's reapportionment plan 
provides for a Senate consisting of 36 
senators elected from single-member 
districts. The ideal senatorial 
district, ‘in terms of population, would 
thus contain 84,228 people. The 
districts actually created deviate, on 
the average, by 0.45% from this ideal, 
the median deviation being 0.47%. The 
largest and smallest senatorial 
districts deviate by +0.88% and -0.93%, 
respectively, making the total maximum 
deviation 1.81%. 

The reapportionment plan proposed a 
House of 151 single-member districts. 
The population of the ideal assembly 
district would be 20,081. The average 
deviation from perfect equality for all 
the plan's assembly districts is 1.9%, 
the median deviation, 1.8%. The maximum 
deviation from the ideal is +3.93% and - 
1.9%. The maximum deviation between any 
two districts thus totals 7.83%. 14d., 

at 2323. 

We think that appellees' showing of 
numerical deviations from population 
equality among the Senate and House 
districts in this case failed to make 
out a prima facie violation of the Equal 
Protection Clause of the Fourteenth 
Amendment, whether these deviations are 
considered alone or in combination with 
the additional fact that another plan 
could be conceived with lower deviations 
among the State's legislative districts. 

wy lw 

 



  

"In Mahan, the ideal district was 46,485 
persons per delegate. The maximum 

variation from the ideal was 16.4%--"'the 
12th district being overrepresented by 
6.8% and the 16th district being 
underrepresented by 9.6%.' 410 U.S., at 
319 (footnote omitted). The average 
percentage deviation under the plan was 
+3.89%. - Of the 52 house digtricts, 35 
were within 4% of the ideal district, 
and nine exceeded a 6% variation from 
the ideal. 

On Proof-Amount of Statistical Disparity Required-Jury 
  

Selection: 
  

Justice White, Alexander v. Louisiana, 405 U.S. 625, 
S.Ct. 

14., 

1221 
  

(1972), 

According to 1960 U.S. census figures 
admitted into evidence below, Lafayette 
Parish contained 44,986 persons over 21 
years of age and therefore presumptively 
eligible for grand jury service; of this 
total, 9473 persons (21.06%) were Negro. 
. « « Twenty-seven of the persons thus 
selected [for grand jury service] were 
Negro (6.75%). «+e. This Court has 
never announced mathematical standards 
for the demonstration of "systematic" 
exclusion of blacks but has, rather, 
emphasized that a factual inquiry is 
necessary in each case that takes into 
account all possible explanatory 
factors. The progressive decimation of 
potential Negro grand jurors is indeed 
striking here, but we do not rest our 
conclusion that petitioner has 
demonstrated a prima facie case of 
invidious racial discrimination on 
statistical probability alone, for the 
selection procedures themselves were not 
racially neutral. 

at 1225, 

92 

On Proof-Amount of Statistical Disparity Required-State 
  

Legislative Redistricting: 
  

Justice White, Whitcomb v. Chavis, 403 U.S, 124, 91 S.Ct. 
  

1858 (19771) 

=10 

 



  

Whitcomb, 
  

"This evidence, based on 1960 census 
figures, showed that Senate district 20, 
with one senator for 80,496, was 
overrepresented by 13.68% while district 
5, with one senator for 106,790, was 
underrepresented by 14.52%, for a total 
variance of 28.20% and a ratio between 
the largest and smallest districts of 
1.327 to ‘1. The house figures were 
similar. The variation ranged from one 
representative for 41,449 in district 39 
to one for 53,003 in district 35, for a 
variance of 24.78% and a ration of 1.279 
to 1. These variations were in excess 
of, or very nearly equal to, the 
variation of 25.65% nd the ratio of 1.30 
to 1 which we held 
excessive for state legislatures41 in 
Swann v. Adams, 385.U.S. 440, 87 -5.Ct. 
569 (1967). 

at 1878-79. 

On Proof-Amount of Statistical Disparity Required- 
  

Congressional Redistricting: 
  

Whitcomb, 
  

fn 41: See also Kirkpatrick v. 
Preisler, 394 U.S. 526, 89 S.Ct. 1225 
and Wells v. Rockefeller, 394 U.S. 542, 
89 S.Ct. 1234 (1969) in which the Court 
held that variances of 5.97% and 
13.096%, respectively, were 
impermissible for congressional 
redistricting. 

at 1878-79. 

-13- 

 



  

JUSTICE BURGER 

On Race & Death Penalty Generally, (from Furman): 
  

Justice Burger 

Thus, unless the Court in McGautha 
misjudged the experience of history, 
there is little reason to believe that 
sentencing standards in any form will 
substantially alter the discretionary 
character of the prevailing system of 
sentencing in capital cases. The system 
may Fall short of perfection, but it is 
yet to be shown that a different system 
would produce more satisfactory results. 

Furman, at 2810. 

On Relief: 
  

Justice Burger, Hobby v. United States, 104 S.Ct. 3093 
(1984) (due process clause; challenge by white defendant to 
exclusion of blacks, women from grand jury foreman 
selections. M/BR/ST dissent. 

  

"We hold that, assuming discrimination 
entered into the selection of federal 
grand jury foremen, such discrimination 
does not warrant the reversal of the 
conviction of, and dismissal of the 
indictment against, a white male 
bringing a claim under the Due Process 
Clause." 

On General Standards re Proof: 
  

Justice Burger, Palmore v. 8Sidoti, 104 -S.Cft. 1879 (1934). 
loss of mother's custody of child because of marriage to man 
of different race. 9-0. 

"The question, however, is whether the 
reality of private biases and the 
possible injury they might inflict are 
permissible considerations for removal 
of an in fact child from the custody of 
its natural mother. We have little 
difficulty concluding that they are not. 
The Constitution cannot control such 
prejudices but neither can it tolerate 
them. Private biases may be outside the 
reach of the law, but the law cannot, 
directly or indirectly, give them 

effect." 

  

-14- 

 



  

On Remedy: 

Justice Burger, Milliken v. Bradley, 97 S.Ct. 2749 
M/P concurred. 

Milliken, 

  

"Application of those 'equitable 
principles,' we have held, requires 
federal courts to focus upon three 
factors, In the first place, like other 
equitable remedies, the nature of the 
desegregation remedy is to be determined 
by the nature and scope of the 
constitutional violation. Swann v. 
Charlotte-Mecklenburg Bd. of Ed., 402 
U.S. at 16,91 S.Ct. at-1276, The 
remedy must therefore be related to 'the 
condition alleged to offend the 
Constitution, +. . .' Milliken TI, 418 
D.85., at 738, 94-8.Ct;, at 3124. 
Second, the decree must indeed be 
remedial in nature, that is, it must be 
designed as nearly as possible 'to 
restore the victims of the 
discriminatory conduct to the position 
they would have occupied in the absence 
of such conduct." Id., at 746, 94 
S.Ct., at 3128, Third, the federal 
courts in devising a remedy must take 
into account the interests of state and 
local authorities in managing their own 
affairs, consistent with the 
Constitution. 
at 2757. 

=15w 

(1977), 

 



  

JUSTICE BLACKMUN 

On General Standard re Proof: 
  

Justice Blackmun, Washington v. Seattle School Dist. No. 1, 
102 S.Ct. 3187 (1982). 5-4,  P/BU/R/O in dissent. 
  

Initiative 350, which restricted 
authority of local school boards to use 
busing to achieve racial integration. 
Court found violative of equal 
protection clause. Y. . . a different 
analysis is required when the State 
allocates governmental power 
nonneutrally, by explicitly using the 
racial nature of a decision to determine 
the decisionmaking process. 

Td, at 3195, 

Justice Blackmun, Board of Ed v. Harris, 300 S.Ct. 363 
(1979). Statutory, non-constitutional, test of disparate 
impact applied to claim brought under Emergency School Aid 
Act. Blackmun for the Court; Stewart/P/R dissent. 

  

Justice Blackmun, Rose v. Mitchell, 99'8,.Ct. 2993 (1979). 
{Blackmun for: the Court); R concurred in part; Stewart/P/R 

concurred in part(excluding Part II); W/St dissented in part 
{from Parts 111 .& 1V). 

  

On Proof-Individual Victim 

(Part II) 
  

"Because discrimination on the basis of 
race in the selection of members of a 
grand jury thus strikes at the 
fundamental values of our judicial 
system and our society as a whole, the 
Court has recognized that a criminal 
defendant's right to equal protection of 
the laws has been denied when he is 
indicted by a grand jury from which 
members of a racial group purposefully 
have been excluded. [citation omitted]. 
For this same reason, the Court also has 
reversed the conviction and ordered the 
indictment quashed in such cases without 
inquiry into whether the defendant was 
prejudiced in fact by the discrimination 
at the grand jury stage. .. . "Yall 
without regard to prejudice." Neal v. 
Delaware 103 U.S. at 394, quoting 
Virginia v. Rives, 100U.8.-333,-322, 25 

-16- 

 



  

On Proof-Amount of Statistical Disparity Required-Jury 

L.Ed. 667 (1880). See Bush v. Kentucky, 
107 U.8.°at 139, 1-8.Ct. at 633. 

  

Selection 
  

(Part IV) 

ee w=x1f the number{of grand jury 
foremen selected] was small enough, the 
disparity between the ratio of Negroes 
chosen to be foreman to the total number 
of foremen, and the ratio of Negroes to 
the total population of the county, 
might not be 'sufficiently large [that] 
it is unlikely that [this disparity] is 
due solely to chance or accident.’ 
Castaneda v. Partida, 430 U.S., at 494, 

n..13, 97. S.Ct. at 1230. Inasmuch as 
there is no evidence in the record of 
the number of foremen appointed, it is 
not possible to perform the calculations 
and comparisons needed to permit at 
court to conclude that a statistical 
case of discrimination has been made 
out, id, at 496-497, n. 17, 97 8.Ct., at 
1281-1282, n. 17, and proof under. the 
Hevule of exclusion" fails. Id., at 494, 
ne 13,97 S.Ct. at 1280, n. 13; see 
Hernandez v. Texas, 347 U.S. at 480, 74 
S.Ct. at 671. 
Comparison of the proof introduced by 
respondents in this case with the proof 
offered by defendants in cases where 
this Court has found that a prima facie 
case was made out is most instructive. 
[Court then discusses Norris v. Alabama, 

294 U.5,. 587, 55: 8.Ct. 579 :(1935)1. See 
Castaneda v. Partida, 430 U.S. at 495- 
96, 97 S.Ct. at 1280-81: Fubanks v. 
Louisiana, 356 U.S. 584, 586-87, 78 
8.Ct. 970, 972-73 (1958); Reece Vv. 
Georgia, 350. U.S., at 87-88, 76 S.Ct., 
ar 169-70; Hill v. Texas, 316 U.S., at 
402-404: Hilil v. Texas, 316 U.S., al 
402-404, 62 S.Ct., at 1160-61. 

O.. General Standards re Proof: 
  

Justice B.ackmun, Castaneda v. Partida, 97 S.Ct. 1272, 
1280-81. 
  

(197/) 

"T us .n order to show that an equal 
protection violation has occurred in the 
c.ntoxt of grand jury selection, the 
defendant must show that the procedure 

-17- 

at 

 



  

employed resulted in substantial 

underrepresentation of his race or of 
the identifiable group to which he 
belongs. The first step is to establish 
that the group is one that is a 
recognizable, distinct class, singled 
out for different treatment under the 
laws, as written or applied. Hernandez 
v. Texas, 347 U.S.,. at 475-479, -74 
S.Ct., at 670-71. Next, the degree of 
underrepresentation must be proved, by 
comparing the proportion of the group in 
the total population to the proportion 
called to serve as grand jurors, over a 

significant period of time. [citation 
omitted]. - This method of proof, 
sometimes called the "rule of 
exclusion," has been Leld to be 
available as a method of proving 
discrimiriation in jury selection 
cases.13 [text of fn 13: 'The idea 
behind the rule of exclusion is not at 
all complex. If a disparity is 
sufficiently large, then it is unlikely 
that it is due sclely to chance or 
accident, and, in the absence of 
evidence to the contrary. one must 
conclude that racial or other class- 
related factors entered into the 
selection process. See Arlington 
Heights v. Metropclitan Eousina Dev. 
Corp.y 42° U.8. 252, 266 n. 13, 97 5.Ct. 
555,564 (1977); Washington v. Davis, 

42620, 229, 241, 96 S.CLt. 2040, 208 
£19726); Eubanks v. Louisiana, 356 U.S. 
at 587,78 S.Ct at" 972;"Smith v. Texasy 
31}: U.8., at: 131, :61 S.Ct. at 165, Cf. 
n. 17, infral.. Hernandez v. Texas, 347 

U.8.,7fat 480, 74 S.Ct. at 671. Finally, 
as noted above, a selection procedure 
that is susceptible of abuse or is not 
racially neutral supports the 
presumption of discrimination raised bv 
the statistical showing. 

Castaneda, at 1z8C. 

On Proof-Amount of Statistical Disparity Required-Jury 
Selection: 
  

"The disparity proved by the 1970 census 
statistics showed that the pcpulation of 
the county was 79.1% Mexican-American, 
but that, over an 11-year period, only 
39% of the persons summoned for grand 

-18- 

 



  

Castaneda, 

jury service were Mexica..-American. 
This difference of 40% is greater than 

that found significant in Turner v. 
Pouche, 396 U.S. 346. 90 S.Ct, 532 
(1970) (60% Necroes in general 
porulation, 37% on the grand jury 
l.sts). Since the state presented no 
evidence showing why the 11 year period 
was not reliable, we take it as the 
relevant base for comparison. The 
mathematical disparities that have been 
accepted by this Court as adequate for a 

prima facie case have all been within 
the range presented here. For examp.e, 
in Whitus-v. Georgia, 385 U.S. 545, 87 
S.Ct. 642, the number of Negroes listed 

on the tax digest amounted to 27.1% of 
the taxpavers, but only 9.1% of those on 
the arand jury venire. This disparity 
was held to be sufficient to make out ae 
prima facie case of discrimination. See 
Sims v. Georgia, 389 U.S. 404, 88 5.Ct. 
523. (1967)(24 ,4% of ta¥ lists, 4.7% of 
grand jury lists); Jones v,., Georgia, 389 
U.S. 24,88 S.Cr.:4 (1967)(19.7% of tax 
lists, 5% of jury list). We-agree with 
tie District Court and the Court of 
Appeals that the proof in this case was 
enough to establish a prima facie case 
of discrimination against the Mexican- 
Americans in the Hidalgo County grand 
jury selection. 

at 1280-81. 

On Role of Subjectivity in Proof: 
  

Castaneda, 

"Supporting this conclusion is the fact 
that the Texas system of selecting grand 
jurors is highlv subjective. The facial 
constitutionalityv of the key-marn systern, 
of course, has been accepted bv this 
Court. See, e.g., Carter v., Jury 

Comm'n, 396 U.8. 320, 90 S.Ct. 518 
1970). 

at, 

ls rT 

 



  

JUSTICE MARSHAIL 

On Ceneral Standards re Proof: 

Justice Marshall, concurrina in Castanoda v. Partida, 97 

8.Ct, at 1283-84. 

"IT join fully Mr. .Tustice BLACKMUN's 
sensitive opinion for the Court. 1 feel 
compelled tn write separatelv, however, 
to express my orofound disacreement with 
the views expressed bv Mr. Justice 
Powell in his dissent. 
As my Brother POWELL observes, pcst, at 
1287, there are three categories of 
evidence in this case that bear on the 
ultimate gnestion whether respondent 
"demonstrated by a preponderance cf the 
evidence that the State had 
'deliberately and svstematically 
den[ied] to members of [respondent's 
clags] the right to participate as 
jurors in the administration of 
justice.” [citation omitted]... 
First, there is the statistical 
evidence... .  . Second, there is 
testimony concernina the grand jury 
selection system emploved in this case. 
That testimonv indicates that the 
commissioners who constructed the grand 
iurv panels had amrle opportunity to 
discriminate against Mexican-Americans, 
since the selection system is entirely 
discretionary. . . Tn everv other case 
of which I am aware where the evidence 
showed both statistical disparity and 
discretionary selection procedures, this 
Court has found that a nrima facie case 
of discrimination was established, and 
has required the State to explain how 
ostensibly nentral selection procedures 
had produced such nonneutral results. 

Id., at 1284. 

-2 (= 

 



  

Furman: Deference to the legislature. 

JUSTICE REHNQUIST 

condition of judicial self-restraint. 

On Proof-Amount of Statistical Disparity Required- 
  

Disfranchisement Statute 
  

Justice Rehnquist, Hunter v. Underwood, 105 S.Ct. 
(1985). 
of moral turpitude. 

Heights, 

  

disparate impact: 
"In Jefferson and Montgomery Counties 
blacks are by even the most modest 
estimates at least 1.7 times as likely 
as whites to suffer disfranchisement 
under section 182 for the commission of 
nonprison offenses." 

Id.,- at 1920. 

On General Standards re Proof: 
  

Justice Rehnquist, Hunter v. Underwood, 105 S5.Ct. 
(1985), 
  

"Presented with a neutral state law that 
produces disproportionate effects along 
racial lines, the Court of Appcals was 
correct in avpplvina the approach of 
Arlington Heights to determine whether 
the law violates the Equal Protection 
Clause of the Fourteenth Amendment: 

"IOlfficial action will not be -Leld 
unconstitutional solely because it 

results in a raciallv discriminatory 
impact. ... » Proof of -raciallv 
discriminatory intent or purpose is 

required to show a violation of the 
Fqual Protection Clause. 429 U.S. at 
264-65, 97 S.CL., at 563. 
See Washington v. Davis, 426 U.8. 229, 
239, 96 g.Ct, 2040, 2047 (1976). Once 
racial discrimination is shown to have 

been a "substantial" or motivating" 
factor behind enactment of the law, the 

burden shifts to the law's defenders to 

demonstrate that the law would have been 

enacted without this factor. 

Id. at 1920 

-21- 

Breach of implied 

19156 
disenfranchisement of persons convicted of crimes 

Rehnquist for a unanimous Court. 
1--enacted for racially discriminatory purpose. 

Mt. Healthy; 
Arlington 

1916 

 



  

"Without deciding whether §182 would be 
valid if enacted today without any 
impermissible motivation, we simply 
observe that its original enactment was 
motivated by a desire to discriminate 
against blacks on account of race and 
the section continues to this day to 
have that effect." 

1d., at 1923. 

On General Standards re Proof: 
  

Justice Rehnquist, General Building Contractors Ass'n v. 
Pennsylvania, 102 S.Ct. 37141 (1982). (O/Bl concur}: S 
concurs; M/Br dissent). (Hiring hall system established by 
collective bargaining; neutral on its face) 

  

  

"Even if a neutral law has a 
disproportionately adverse impact upon a 
racial minority it is unconstitutional 
under the Equal Protection Clause only 
if that impact can he fraced to a 
discriminatory purpose... ... We 
conclude, therefore, that §1981, like 
the Equal Protection Clause, can be 
violated only by purposeful 
discrimination." Id:, at 3150. 

ON REMEDY: 

Justice Rehnquist, Dayton Board of Education v. Brinkman, 97 
S.Ct. 2766 (1977); St/Br concur. 

  

  

'If such violations are found, the 
District Court inthe first instance, 

subject to review by the Court of 
Appeals, must determine how much 
incremental segregative effect these 
violations had on the racial 
distribution of the Dayton school 
population as presently constituted, 
when that distribution is compared to 
what it would have been in the absence 
of such constitutional violations. The 
remedy must be designed to redress that 
difference, and only if there has been a 
system-wide impact may there be a 
systemwide remedy." 433 U.S., at 420, 97 
S.Ct., at 2766." 

On Proof-Amount of Statistical Disparity Required-State 
Legislative Redistricting: 
Justice Rehnguist, Mahan v,., Howell, 410 U.S8.°315, 93 S.Ct. 
979 (1973) 

  

  

  

-22- 

 



  

"As found by the lower court, the ideal 
district in Virginia consisted of 46,485 
persons per delegate, and the maximum 
percentage variation from that ideal 
under the Act was 16.4%--the 12th 
district being overrepresented by 6.8% 
and the 16th district being 
underrepresented by 9.6%. The 
population ratio between these two 
Gistricis was 1.18 to 1. The average 
percentage variance under the plan was 
23.89%, «4. 

Id, at 982. 

Mahan, at 

This Court first recognized that the 
Equal Protection Clause requires both 
houses of a bicameral state legislature 
to be apportioned substantially on a 
population basis in Reynolds v. Sims, 
supra. In so doing, it suggested that 
in the implementation of the basic 
constitutional principle--equality of 
population among districts--more 
flexibility was constitutionally 
permissible with respect to state 
legislative apportionment than in 
congressional redistricting. Id., 377 
U.8.,: at 578, 84 S.Ct., aL: 1390, 

983. 

+s + The most stringent mathematical 
standard that has heretofore been 
imposed upon an apportionment plan for a 
state legislature by this Court was 
enunciated in Swann v. Adams, 385 U.S. 
440, 878 S.Ct. 569, (1967), where a 
scheme having a maximum deviation of 26% 
was disapproved. In that case, the 
State of Florida offered no evidence at 
trial to support the challenged 
variations. . . . Neither courts nor 
legislatures are furnished any 
specialized calipers that enable them to 
extract from the general language of the 
Equal Protection Clause of the 
Fourteenth Amendment the mathematical 
formula that establishes what range of 
percentage deviations is permissible, 
and what is not. The 16-0dd percent 
maximum deviation that the District 
Court found to exist in the legislative 
plan for the reapportionment of the 

-23- 

 



  

House is substantially less than the 
percentage deviations that have been 
found invalid in the previous decisions 
of this Court. While this percentage 
may well approach tolerable limits, we 
do not believe it exceeds them. 

Mahan, at 987. 

-24~- 

 



  

JUSTICE STEWART 

On Race & Death Penalty, Generally: 
  

Justice Steward, Gregg, at 2932. (Stewart, Powell & Stevens) 

"The new Georgia sentencing procedures, 
by contrast, focus the jury's attention 
on the particularized nature of the 
crime and the particularized 
characteristics of the individual 
defendant. While the jury is permitted 
to consider any aggravating or 
mitigating circumstances, it must find 
and identify at least one statutory 
aggravating factor before it may impose 
a penalty of death. In this way the 
jury's discretion is channeled. No 
longer can a jury wantonly and 
freakishly impose the death sentence; it 
is always circumscribed by the 
legislative guidelines. In addition, 
the review function of the Supreme Court 
of Georgia affords additional assurance 
that the concerns that prompted our 
decision in Furman are not present to 
any significant degree in the Georgia 
procedure applied here. 

Gregg, at 2941. 

On Standard of Proof, Generally: 
  

Justice Stewart, City of Mobile v. Bolden, 100 S.Ct. 1490 
(1980) challenge to at-large electoral system. Stewart, 
joined by Bu/R/P; Bl concurring in result; St concurring in 
judgment; W/Br/M dissent. 

  

failure to show purposeful discrimination. 

General Standards re Proof: 
  

Justice Stewart, Personnel Administrator v Feeney, 99 S.Ct. 

2282, at 2293 (1979) 
  

When a statute gender-neutral on its 
face is challenged on the ground that 
its effects upon women are 
disproportionately adverse, a twofold 
inquiry is thus appropriate. The first 
question is whether the statutory 
classification is indeed neutral in the 
sense that it is not gender-based. If 

-25- 

 



  

the classification itself, covert or 
overt, is not based upon gender, the 
second question is whether the adverse 
effect reflects invidious gender-based 
discrimination. See Arlington Heights. 
In this second inquiry, impact provides 
an "important starting point," 429 U.S. 
at 266, 97 S.Ct. at 564, but purposeful 
discrimination is '"the condition that 
offends the Constitution." . . 

14., at 2293. 

"Discriminatory purpose" however, 
implies more than intent as volition or 
intent as awareness of consequences. 

See United Jewish Organizations wv. 
Carey, 430 U.S. 144,179, 97 8.Ct.:996, 
1016 (concurring opinion). It implies 
that the decisionmaker, in this case a 
state legislature, selected or 
reaffirmed a particular course of action 
at least in part "because of" not merely 
"in spite of" its adverse effects upon 
an identifiable group." 

1d., at 2296, 

Proof-Amount of Statistical Disparity Required-Jury 
  

Selection: 
  

Justice Stewart, Turner v. Fouche, 396 U.S. 346, 90 

532: (1970) 
  

"The undisputed fact was that Negroes 
composed only 37% of the Taliaferro 
County citizens on the 304-member list 
from which the new grand jury list was 
drawn. That figure contrasts sharply 
with the representation that their 
percentage (60%) of the general 
Taliaferro County population would have 
led them to obtain in a random 
selection. In the absence of a 
countervailing explanation by appellees, 
we cannot say that the 
underrepresentation reflected in these 
figures is so insubstantial as to 
warrant no corrective action by a 
federal court charged with the 
responsibility of enforcing 
constitutional guarantees. 

Id., at 539. 

20 

S.Ct