LDF Charges Collusion Between Bethlehem Steel and AFL-CIO in Discrimination Case

    No. 87-1387

In  t h e

§upreme (Eourt 0! tlje §tates
O c t o b e r  T e r m , 1988

W a r d s  C o v e  P a c k in g  C o m p a n y , In c ., 
C a s t l e  & C o o k e , In c .,

v.
Petitioners,

F r a n k  A n t o n i o , et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS 

AMICUS CURIAE IN SUPPORT OF THE RESPONDENTS

Conrad Harper 
Stuart J. Land 

Co-Chairmen 
Norman Redlich 

Trustee
Richard T. Seymour 
James C. G ray, Jr.

Lawyers’ Committee for 
Civil Rights U nder Law 

1400 “Eye” Street, N.W.
Suite 400
Washington, D.C. 20005 
(202)371-1212

Attorneys for Amicus Curiae 
Lawyers’ Committee for Civil Rights 

Under Law
November 4, 1988 *Counsel of Record

N icholas deB. Katzenbach*
Alan E. Kraus 
David Arciszewski

Riker, Danzig, Scherer, Hyland 
& Perretti 

Headquarters Plaza 
One Speedwell Avenue 
Morristown, New Jersey 07960-1981 
(201) 538-0800



TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE.............................  1
QUESTIONS PRESENTED.........................................  2
SUMMARY OF ARGUMENT.....................................  3
ARGUM ENT................................................................... 6

I. IN A DISPARATE IMPACT CASE, AS THE
NINTH CIRCUIT PROPERLY HELD, ONCE 
THE PLAINTIFF HAS MADE A PRIMA 
FACIE SHOWING, THE BURDEN OF PER­
SUASION SHIFTS TO THE EMPLOYER TO 
REBUT THAT PRIMA FACIE SHOWING . . .  6

A. The Differences between Individual Disparate
Treatment Cases and Classwide Disparate 
Impact Cases Warrant a Different Allocation 
of the Burdens of P roof...................................

B. This Court Has Uniformly Held that the Bur­
den of Proving Business Necessity Shifts to 
the Employer Following a Prima Facie Show­
ing in a Disparate Impact Case.......................  13

C. Sound Reasons of Public Policy and Practical­
ity Warrant the Shifting of the Burden of Per­
suasion to the Employer in Disparate Impact 
Cases................................................................. 15

II. SPECIFIC CAUSATION IS NOT THE
APPROPRIATE STANDARD IN A DISPA­
RATE IMPACT CASE .......................................  17

III. THE NINTH CIRCUIT COURT OF 
APPEALS CORRECTLY HELD THAT 
RESPONDENTS’ STATISTICS MADE OUT 
A PRIMA FACIE CASE OF DISPARATE 
IMPACT................................................................. 25

CONCLUSION............................................................... 29

Page



11

Albermarle Paper Co. v. Moody, 422 U.S. 405 
(1975).......................................................................  passim

Antonio v. Wards Cove Packing Co., 827 F.2d 439 
(9th Cir. 1987) .......................................................  6

Barnett v. W. T. Grant Co., 518 F.2d 543
(4th Cir. 1975) .......................................................  19

Bazemore v. Friday, 478 U.S. 385 (1986)................ 20

Belcher v. Bassett Furniture Industries Inc., 588 
F.2d 904 (4th Cir. 1978) .......................................  15

Bonilla v. Oakland Scavenger Co., 697
F.2d 1297 (9th Cir. 1982), cert, denied, 467
U.S. 1251 (1984) ...................................................  18

Brown v. Gaston County Dyeing Machine Co., 457 
F.2d 1377 (4th Cir.), cert, denied, 409 U.S. 982 
(1972).......................................................................  19

Burns v. Thiokol Chemical Corp., 483 F.2d 300
(5th Cir. 1973) .......................................................  26

Connecticut v. Teal, 457 U.S. 440 (1982) ................ passim

Davis v. City o f Dallas, 483 F. Supp. 54
(N.D. Tex 1979).....................................................  27

Domingo v. New England Fish Co., 445 F. Supp.
421 (W.D. Wash. 1977), affd, 727 F.2d 1429
modified, 742 F.2d 520 (9th Cir. 1984).................. 19

Dothardv. Rawlinson, 433 U.S. 321 (1977)............. 11,12,14

EEOC v. Inland Marine Industries, 729 F.2d 1229 
(9th Cir.), cert, denied, 469 U.S. 855 (1984)........ 18

TABLE OF AUTHORITIES

Page



Ill

Falcon v. General Telephone Co. o f the Southwest,
626 F.2d 369 (5th Cir. 1980), vacated, 450 U.S.
1036, a f f  d on rehearing, 647 F.2d 633
(5th Cir. 1981) .......................................................  27

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976)...............................................  6,28

Furnco Construction Co. v. Waters, 438 U.S. 567 
(1978)....................................................................... 9,11,15

Gibson v. Local 40, 543 F.2d 1259 (9th Cir. 1976)... 18

Green v. USXCorp., 843 F.2d 1511 (3d Cir. 1988), 
petitionfor cert, filed, 57 U.S.L.W. 3123 (U.S.
July 23, 1988) (No. 88-141) .................................  22,24

Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . .  passim

Hazelwood School District v. United States, 433 
U.S. 299 (1977).......................................................  2,27

International Bhd. o f Teamsters v. United States,
431 U.S. 324 (1977)...............................................  passim

Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561
(4th Cir. 1985) .......................................................  1

Lilly v. Harris-Teater Supermarket, 842 F.2d 1496
(4th Cir. 1988) .......................................................  19

New York City Transit Authority v. Beazer, 440 
U.S. 568 (1979).......................................................  25

McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973)....................................................................... 9,11

Payne v. Travenol Laboratories, Inc., 673 F.2d 798 
(5th Cir.), cert, denied, 459 U.S. 1038 (1982) . . . .

TABLE OF AUTHORITIES—Continued

Page

2,8



IV

Pouncy v. Prudential Insurance Co., 668 F.2d 795
(5th Cir. 1982) .......................................................  17

Rowe v. General Motors Corp., 457 F.2d 348 
(5th Cir. 1972).......................................................  18

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), 
cert, denied, 471 U.S. 1 1 15 (1985).......................  24

Sledge v. J. P. Stevens & Co., 585 F.2d 625 (4th Cir.
1978), cert, denied, 440 U.S. 981 (1979).............. 2

Tarver v. City o f Houston, 22 EPD H30, 689 (S.D.
Tex. 1980)...............................................................  21

Texas Department o f Community Affairs v.
Burdine, 450 U.S. 248 (1981)...............................  passim

United States v. Georgia Power Co., 474 F.2d 906 
(5th Cir. 1973) .......................................................  19

United States v. County o f Fairfax, 629 F.2d 932 
(4th Cir. 1980) .......................................................  8,16

Vuyanich v. Republic National Bank, 521 F.Supp.
656 (N.D. Tex. 1981), rev’d on other grounds, 723
F.2d 1195 (5th Cir.), cert, denied, 469 U.S. 1073
(1984).......................................................................  8

Watson v. Fort Worth Bank and Trust, 487 U.S. ,
108 S.Ct. 2777 (1988) ...........................................  passim

Wilkins v. University o f Houston, 654 F.2d 388 (5th 
Cir. 1981), vacated, 459 U.S. 809 (1982), a ffd  on 
rehearing, 695 F.2d 134 (5th Cir. 1983)................ 20

S t a t u t e s , R e g u l a t io n s  a n d  R u l e s

Civil Rights Act of 1964, Title VII, as amended, 42 
U.S.C. §2000e-2.....................................................  22

TABLE OF AUTHORITIES—Continued

Page



V

Uniform Guidelines on Employee Selection
Procedures (1978), 29 C.F.R. §1607 .......................  16

29C.F.R. §1607.16Q .............................................  23
29 C.F.R. §1615.....................................................  16

Fed. R. Civ. P. 8 .........................................................  12

C o n g r e s s io n a l  H is t o r y :

S.Rep. No. 415, 92nd Congress, 1st Sess. 5 (1971) . 22

M is c e l l a n e o u s :

110 Daily Labor Rep. (BNA) A-3 (June 7, 1985)... 17

Friedman and Williams, Current Use o f Tests for 
Employment, in 2 Ability Testing: Uses, Conse­
quences, and Controversies (1982) .......................  16

Report of the Director, Administrative Office of the 
U.S. Courts (1977).................................................  29

Rose, Subjective Employment Practices: Does the 
Discriminatory Impact Analysis Apply?, 25 San 
Diego L. Rev. 63 (1988).........................................  17

B. Schlei and P. Grossman, Employment Discrimi­
nation Law (2d ed. 1983).......................................  11,26

TABLE OF AUTHORITIES—Continued

Page



In the

iupreme Court of tf?e United states
O c t o b e r  T e r m , 1988

No. 87-1387

W a r d s  C o v e  P a c k in g  C o m p a n y , I n c .,
C a s t l e  &  C o o k e , I n c .,

Petitioners,
v.

F r a n k  A n t o n io , et al.,
Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS 

AMICUS CURIAE IN SUPPORT OF THE RESPONDENTS

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law submits 
this brief as amicus curiae urging affirmance.1

The Lawyers’ Committee is a nonprofit organization estab­
lished in 1963 at the request of the President of the United 
States to involve leading members of the bar throughout the 
country in the national effort to insure civil rights to all Ameri­
cans. It has represented and assisted other lawyers in repre­
senting numerous persons in administrative proceedings and 
lawsuits under Title VII. E.g., Lewis v. Bloomsburg Mills, Inc.,

1 Pursuant to Rule 36.2, the Lawyers’ Committee is filing herewith written 
consents of the parties to the submission of this brief as amicus curiae.



2

773 F.2d 561 (4th Cir. 1985); Payne v. Travenol Laboratories, 
Inc., 673 F.2d 798 (5th Cir.), cert, denied, 459 U.S. 1038 
(1982); Sledge v. J. P. Stevens & Co., 585 F.2d 625 (4th Cir. 
1978), cert, denied, 440 U.S. 981 (1979). The Lawyers’ 
Committee has also represented parties and participated as an 
amicus in Title VII cases before this Court. E.g., Watson v. Fort 
Worth Bank & Trust, 487 U.S. , 108 S.Ct. 2777 (1988); 
Connecticut v. Teal, 457 U.S. 440 (1982); Hazelwood School 
District v. United States, 433 U.S. 299 (1977).

The questions presented by this case raise important and 
recurring issues in Title VII law. In particular, the allocation of 
the burdens of proof in disparate impact cases and the nature of 
plaintiffs’ burden in presenting a prima facie case of disparate 
impact are issues that affect virtually every class action brought 
under Title VII. This Court’s decision will undoubtedly have 
significant implications on present and future Title VII suits in 
which the Lawyers’ Committee participates. In addition, the 
Lawyers’ Committee has a longstanding interest in persuading 
the Court to adopt principles that will result in the sound admin­
istration of the discrimination laws, so that findings of liability 
will be obtainable by persons with legitimate claims and limited 
resources. In this case, the Lawyers’ Committee also brings to 
the Court the benefit of its actual experience in marshalling the 
facts in complex employment discrimination class actions, and 
discusses in practical terms the flaws in the approach taken by 
petitioners and the United States as amicus curiae to disparate 
impact cases.

QUESTIONS PRESENTED
1. Whether, in a disparate impact case under Title VII, 

plaintiffs’ prima facie showing shifts a burden of persuasion to 
the employer to prove the business necessity of the personnel 
practices at issue or merely a burden of production?

2. Whether, in order to make a prima facie showing in a 
disparate impact case, plaintiffs are required to identify specific 
employment practices at issue and prove a specific causal link 
between each practice and an identifiable disparate impact?

3. Whether the statistical showing made by plaintiffs in this 
case, which demonstrated a significant racial disparity between



3

petitioners’ cannery workers and non-cannery workers, was 
sufficient to make out a prima facie case?

SUMMARY OF ARGUMENT

1. Petitioners contend that the Ninth Circuit Court of 
Appeals erred by placing the burden on them of disproving 
plaintiffs’ statistical showing of disparate impact before, in peti­
tioners’ view, plaintiffs had even made out a prima facie case. 
(Pet. Brief at 37-47.) Petitioners have misconstrued the Ninth 
Circuit’s holding: The Ninth Circuit held only that, if employers 
attempt to dispute plaintiffs’ statistical showing with statistics of 
their own, those statistics must be probative and relevant. Here, 
petitioners’ labor force statistics relied on job criteria and 
qualifications that were not shown to be actually used by peti­
tioners. The Ninth Circuit properly held that those labor force 
statistics were not sufficiently probative to dispute plaintiffs' 
prima facie showing of disparate impact.

The United States as amicus curiae goes further than peti­
tioners. The United States argues that, on this appeal, this Court 
should discard the order of proof in disparate impact cases that 
has been controlling since Griggs v. Duke Power Co., 401 U.S. 
424 (1971) and, for the first time, expressly hold that the 
employer’s burden in rebutting a prima facie showing of dispa­
rate impact is one of mere production, rather than persuasion. In 
short, the United States urges this Court to apply the individual 
disparate treatment order of proof, as set forth in Texas Depart­
ment o f Community Affairs v. Burdine, 450 U.S. 248 (1981), to 
disparate impact cases.

The argument of the United States is, we submit, fatally 
flawed. It ignores the critical differences between individual dis­
parate treatment cases and disparate impact cases that make 
Burdine inappropriate and inapplicable in the disparate impact 
context. In individual disparate treatment cases, where the 
employer’s motivation is the ultimate issue, the plaintiffs prima 
facie case eliminates only the “most common nondis- 
criminatory reasons for differences in treatment. It is not until 
the employer responds by articulating the “real reason for its 
different treatment of plaintiff that the plaintiff ultimately



4

proves discrimination by eliminating the so-called real reason as 
well.

In disparate impact cases, in contrast, the plaintiffs face a 
much heavier prima facie burden. There, plaintiffs, in order to 
make a prima facie showing, must demonstrate that the employ­
er’s facially neutral practices have caused a significant disparate 
impact upon minorities. Because proof of discriminatory motive 
is not necessary in disparate impact cases, a prima facie show­
ing, unless rebutted by the employer by proof of the business 
necessity of the practices at issue, mandates a holding in favor of 
plaintiffs. Obviously, employers have far better access to evi­
dence concerning the business necessity of their employment 
practices. There is nothing unfair about asking them to carry the 
burden of proving that affirmative defense.

In sum, the far heavier prima facie burden imposed on dispa­
rate impact plaintiffs amply justifies a heavier rebuttal burden 
on defendant employers. This Court has uniformly applied that 
very order of proof in past disparate impact decisions and there 
is, we submit, no reason to alter that rule now.

2. Petitioners further contend that plaintiffs should not be 
allowed to challenge the cumulative disparate impact of petition­
ers’ personnel system. Petitioners assert that disparate impact 
plaintiffs must be required to identify specific practices at issue 
and demonstrate in detail the specific disparate impact caused 
by each practice. Otherwise, petitioners contend, the employer 
faces the unfair burden of defending the business necessity of 
every aspect of his personnel system. That issue is not fairly 
presented on this appeal.

This is not a case where the plaintiffs launched a “shotgun” 
attack on an employer’s entire personnel system. Here, as the 
Ninth Circuit found, plaintiffs proved the disparate impact of 
six specific employment practices. Those six practices—the use 
of subjective criteria, nepotism, separate hiring channels, word- 
of-mouth recruiting, race labelling and segregated facili­
ties—are well-established causes of disparate impact. Thus, 
plaintiffs amply carried their prima facie burden of proving that 
the practices at issue caused the disparate impact shown.



5

Moreover, there is nothing unfair in shifting the burden of 
proof to an employer once disparate impact of his personnel sys­
tem has been demonstrated. It is well-established that disparate 
impact creates a presumption of discrimination because a fair, 
nondiscriminatory employment system should ordinarily pro­
duce a racially balanced workforce. Thus, to hold that an 
employer with a demonstrably unbalanced workforce is immune 
from Title VII challenge simply because the plaintiffs are unable 
to prove which specific practices caused what part of the dispar­
ity would, in all likelihood, allow significant violations of Title 
VII to go unremedied.

Furthermore, in many instances, the plaintiffs are unable to 
prove specific causation because either the evidence, such as 
detailed employment records, is unavailable or because plaintiffs 
lack sufficient expertise, resources or access to the place of 
employment. There is nothing unfair in asking the 
employer—who controls the maintenance of employment 
records, who is, of course, most expert in his own employment 
system and job criteria, and who enjoys complete access to the 
place of employment—to carry the burden of explaining away a 
demonstrable, significant racial disparity in his workforce.

3. Finally, petitioners contend that plaintiffs’ statistics show­
ing a significant disparity between the racial composition of peti­
tioners’ lower paid cannery workers and that of their higher paid 
non-cannery workers were not sufficient to carry plaintiffs’ 
prima facie burden. Petitioners contend that only comparisons 
to the qualified labor pool are relevant.

Petitioners miss the point. This case is about barriers to 
opportunity. The plaintiffs’ complaint here is that petitioners’ 
employment practices unfairly denied them even the opportunity 
to compete for the higher paying non-cannery jobs. As this 
Court long ago recognized in Griggs, a core objective of Title 
VII “was to achieve equality of employment opportunities and 
remove barriers that have operated in the past to favor an 
identifiable group of white employees over other employees.’’ 
401 U.S. at 429-30. In short, plaintiffs’ statistics amply demon­
strate discrimination in job opportunities; petitioners' labor force 
statistics are not even relevant to that claim.



6

ARGUMENT
I. IN A DISPARATE IMPACT CASE, AS THE NINTH CIR­

CUIT PROPERLY HELD, ONCE THE PLAINTIFF HAS 
MADE A PRIMA FACIE SHOWING, THE BURDEN OF 
PERSUASION SHIFTS TO THE EMPLOYER TO 
REBUT THAT PRIMA FACIE SHOWING.

Petitioners, supported by various amici including the United 
States, contend that in this case the Ninth Circuit Court of 
Appeals “fashion[ed] a new allocation of the burdens of proof in 
a [disparate] impact case, drastically lowering respondents’ and 
raising petitioners’.” (Pet. Brief at 37.) In summary, petitioners 
contend that the Ninth Circuit erred by holding that petitioners 
had the burden of disproving the plaintiffs’ prima facie showing 
of disparate impact before plaintiffs had ever made out a prima 
facie case. (Pet. Brief at 37-47.) Petitioners argue that the Ninth 
Circuit improperly placed on them the burden of proving, rather 
than merely articulating, flaws in plaintiffs’ prima facie showing 
of disparate impact. (Id.)

Petitioners miss the point of the Ninth Circuit’s holding. The 
Ninth Circuit did not place the burden of disproving plaintiffs’ 
statistics on petitioners; the Ninth Circuit held only that peti­
tioners’ objections to plaintiffs’ prima facie showing must be rel­
evant and probative. Because petitioners’ objections were neither 
relevant nor probative, they failed to preclude a finding that 
plaintiffs had made out a prima facie case. There is nothing new 
or novel about that holding.2

The United States goes even further than petitioners. The 
United States contends that the Ninth Circuit erred by holding

2 For example, the Ninth Circuit held that petitioners’ labor force statistics 
were not relevant to undermine plaintiffs’ workforce imbalance statistics 
because petitioners had failed to demonstrate that the qualifications criteria 
that underlay their labor force statistics were in fact used by petitioners. 
Indeed, plaintiffs presented evidence that those criteria were not used by peti­
tioners. Antonio v. Wards Cove Packing Co., 827 F.2d 439, 446 (9th Cir. 
1987). That holding is nothing more than a straightforward application of this 
Court's holding in Franks v. Bowman Transportation Co., 424 U.S. 747, 773 
n. 32 (1976) that only non-discriminatory standards “actually applied’’ are 
relevant.



7

that, once plaintiffs in a Title VII case have made a prima facie 
showing of disparate impact, the burden of persuasion of 
rebutting that prima facie case shifts to the defendant employer. 
Rather, the United States contends, the employer’s burden 
should be only to articulate a rebuttal to plaintiffs prima facie 
case. In short, the United States argues that the allocation of 
burdens of proof in a disparate impact class action should be 
exactly the same as in an individual disparate treatment case. 
See Texas Department o f Community Affairs v. Burdine, 450 
U.S. 248, 252-53 (1981); (Brief for the United States as Amicus 
Curiae at 25-28.) Because of the far reaching implications of the 
United States’ argument, we address it in detail below.

Simply put, the United States is wrong. First, individual dis­
parate treatment cases and class action disparate impact cases 
are fundamentally different in theory and in practice and those 
differences amply justify a different allocation of burdens of 
proof. Second, the decisions of this Court applying disparate 
impact theory have, without exception, held that, once a prima 
facie case of disparate impact is established, the burden of per­
suasion shifts to the employer to rebut that prima facie case. 
Thus, the Ninth Circuit’s ruling is not only not a “new alloca­
tion” of the burdens of proof in impact cases, it is the only ruling 
the Ninth Circuit could have made consistent with this Court’s 
prior decisions. For this Court to adopt the United States’ 
approach, it would have to overrule a long and unbroken line of 
authority set forth in this Court’s own decisions. And third, 
there are sound public policy and practical reasons why in dispa­
rate impact cases the burden of persuasion should shift to the 
employer once a prima facie showing is made.

A. The Differences between Individual Disparate Treatment 
Cases and Class-wide Disparate Impact Cases Warrant a 
Different Allocation of the Burdens of Proof.

Title VII cases generally fall into two categories: disparate 
treatment and disparate impact.3 Disparate treatment cases

3 A particular case can utilize either or both methods of proof. As this Court 
has recognized, “ [e]ither theory may, of course, be applied to a particular set



8

seek to remedy the most obvious evil Title VII was designed to 
eradicate, namely situations where an employer intentionally 
treats some people less favorably because of their race, color, 
religion, sex or national origin. In a disparate treatment case, 
“ [p]roof of discriminatory motive is critical, although it can in 
some situations be inferred from the mere fact of differences in 
treatment.” Teamsters, 431 U.S. at 335 n. 15.

Disparate impact claims, in contrast, focus on employment 
practices and procedures that are facially neutral in their treat­

of facts.” International Bhd. o f Teamsters v. United States, 431 U.S. 324, 336 
n. 15 (1977).

Pattern and practice disparate treatment cases present yet a third category, 
combining elements of both disparate impact and individual disparate treat­
ment cases. Pattern and practice disparate treatment cases are, at bottom, class 
actions predicated on allegations of disparate treatment. Like an individual dis­
parate treatment case, the crux of a pattern and practice disparate treatment 
case is an employer’s intentional and less favorable treatment of minority 
employees. Like a disparate impact case, however, the proof of discrimination 
in a pattern and practice disparate treatment case is generally statistical. In 
such a case, the mere articulation of a defense—such as the employer’s asser­
tion that it hires and promotes the “best-qualified” candidates—is insufficient. 
Teamsters, 431 U.S. at 342 n. 24; Payne v. Travenol Laboratories, 673 F,2d at 
818. Similarly, the mere articulation of a potential flaw in plaintiffs’ statistics 
is insufficent; the defendant has the burden of persuasion that the problems it 
cites are real, and that they explain so much of the disparities proven by 
plaintiffs that their probative value is destroyed. Payne, 673 F.2d at 822; 
United States v. County o f Fairfax, 629 F.2d 932, 940 (4th Cir. 1980), cert, 
den., 449 U.S. 1078 (1981).

There is nothing unusual or unjust in these rulings. No matter how massive a 
plaintiffs statistical showing may be, it can never cover every possible factor. 
Universal analyses come only at infinite expense. To allow a probative statis­
tical showing to be defeated by mere articulation or speculation that other 
factors or analyses might lead to a different result, without imposing any bur­
den of persuasion on the defendant, would result in the defeat of every statis­
tical showing of disparate treatment. It is for those reasons that Judge 
Higginbotham stated in Vuyanich v. Republic National Bank o f Dallas, 521 F. 
Supp. 656, 661 (N.D. Tex., 1981), rev’d on other grounds, 723 F.2d 1195 (5th 
Cir.), cert, den., 469 U.S. 1073 (1984), that “ [i]n a complex class action, 
utilizing statistical proof and counterproof, the value of the Burdine 
sequence—to highlight the issues in context— is about as relevant as a minuet 
is to a thermonuclear battle.”



9

ment of different groups but nevertheless in fact fall more 
harshly on one or more groups.4 Proof of discriminatory motive 
is not necessary in disparate impact cases. Indeed, “good intent 
or absence of discriminatory intent does not redeem employment 
procedures or testing mechanisms that operate as ‘built-in 
headwinds’ for minority groups.” Griggs v. Duke Power Co., 401 
U.S. 424, 432 (1971).

As a unanimous Court recognized in Griggs, disparate impact 
analysis promotes Congress’ intent in Title VII to outlaw not 
only overt, intentional discrimination but also more subtle, 
unintended discrimination:

What is required by Congress is the removal of artificial, arbi­
trary and unnecessary barriers to employment when the barriers 
operate invidiously to discriminate on the basis of racial or other 
impermissible classification.

. . . The Act proscribes not only overt discrimination but also 
practices that are fair in form, but discriminatory in operation.

Griggs, 401 U.S. at 431.

In an individual disparate treatment case, the plaintiffs bur­
den in establishing a prima facie case is “not onerous”. Burdine, 
450 U.S. at 253. Essentially, the plaintiff need only prove that 
he is a member of a racial minority and eliminate the most com­
mon reasons for his failure to be hired or promoted or otherwise 
treated equally. See, e.g., id. at 253-54; McDonnell Douglas * 
Corp. v. Green, 411 U.S. 792, 802 (1973). Such a minimal show­
ing “raises an inference of discrimination only because we pre­
sume these acts, if otherwise unexplained, are more likely than 
not based on the consideration of impermissible factors.” Furnco 
Construction Co. v. Waters, 438 U.S. 567, 577 (1978).

The employer in an individual disparate treatment case then 
need only articulate a legitimate, nondiscriminatory reason for

4 Most disparate impact cases are class actions. Individual disparate impact 
cases do exist, however, and the order of proof in such cases is, and should be, 
the same as in class action disparate impact cases.



10

its treatment of plaintiff and produce sufficient evidence to raise 
“a genuine issue of fact as to whether it discriminated against 
the plaintiff.” Burdine, 450 U.S. at 254. The minimal burden on 
the employer in responding to an individual disparate treatment 
plaintiffs prima facie case is commensurate with the low prima 
facie threshold for the plaintiff. The entire purpose of the order 
of proof in individual disparate treatment cases is to narrow the 
issue of the employer’s intent gradually. Thus, the ultimate issue 
of discriminatory motive is most often decided, assuming 
plaintiff made a prima facie showing, at the final stage, when 
the plaintiff must prove that the employer’s articulated non- 
discriminatory motive is a mere pretext for discrimination.

Said another way, it is not until the third and final stage of the 
order of proof in a disparate treatment case that the plaintiff 
actually proves discrimination by eliminating not only the most 
common nondiscriminatory motivations for the employer’s 
apparently discriminatory treatment but also the particular 
nondiscriminatory reasons proferred by the employer. For that 
reason, this Court in Burdine refused in an individual disparate 
treatment case to place any burden of persuasion on the 
employer at the second stage in the order of proof.

In a disparate impact case, in contrast, the order of proof, and 
particularly the plaintiffs’ prima facie burden, are significantly 
different. As this Court itself noted in Burdine, “the factual 
issues, and therefore the character of the evidence presented, 
differ when the plaintiff claims that a facially neutral employ­
ment policy has a discriminatory impact on protected classes.” 
450 U.S. at 252 n. 5. See also Teamsters, 431 U.S. at 336 n. 15 
(“ [c]laims of disparate treatment may be distinguished from 
claims that stress ‘disparate impact’ ”).

Thus, in a disparate impact case, the plaintiffs face a much 
higher prima facie burden of proof. There, the plaintiffs must 
prove, in order to make a prima facie showing, that the employ­
er’s facially neutral employment practices and procedures cause 
a disparate impact upon a protected class. E.g., Albermarle 
Paper Co. v. Moody, 422 U.S. 405, 425 (1975). That standard 
requires a substantial showing. The plaintiffs must prove, gener­



11

ally through the use of probative statistics, that the practices and 
procedures about which plaintiffs complain have a substantially 
disproportionate exclusionary impact on minorities. Dothard v. 
Rawlinson, 433 U.S. 321, 328-30 (1977).5

Once that standard is met, however, disparate impact 
plaintiffs have done far more than simply dispel the “most com­
mon” nondiscriminatory explanations for differences in employ­
ment results (as is the case with a disparate treatment prima 
facie case). See Furnco, 438 U.S. at 577. Rather, a prima facie 
showing in a disparate impact case convincingly demonstrates 
the very evil that that type of analysis is designed to uncover, in 
a fashion that unless rebutted by the employer will compel a rul­
ing for the plaintiffs.6 The heavier burden carried by plaintiffs in 
prima facie showings in disparate impact cases thus amply 
justifies the shifting of a burden of persuasion to the defendant. 
See B. Schlei and P. Grossman, Employment Discrimination 
Law at 1328 n. 139 (2d ed. 1983) (“ [t]he heavier burden placed 
upon the defendant in responding to a prima facie case under the 
adverse impact model corresponds with the plaintiffs’ heavier 
burden of establishing a prima facie case”).

Indeed, the employer’s burden in responding to a disparate 
impact prima facie case—to justify the business necessity of the 
challenged practices and procedures—is in the nature of an

5 As this Court is well aware, and as this case convincingly demonstrates, 
the probative value of the statistics relied upon by a plaintiff class in a dispa­
rate impact case is often hotly disputed. The plaintiffs’ burden to establish dis­
parate impact by statistics is indeed an onerous one. See Part III infra. See 
also Teamsters, 431 U.S. at 340 & n. 20 (statistics come in an “infinite 
variety” and their usefulness “depends on all surrounding facts and 
circumstances”).

6 As this Court has noted, “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.” Teamsters, 
431 U.S. at 340 n. 20. Thus, as Justice Blackmun stated in Watson, “ [u]nlike a 
claim of intentional discrimination, which the McDonnell Douglas factors 
establish only by inference, the disparate impact caused by an employment 
practice is directly established by the numerical disparity.” 487 U.S. at
108 S. Ct. at 2794.



12

affirmative defense. Once the plaintiffs have made a prima facie 
showing in a disparate impact case that the employment prac­
tices at issue are presumptively illegal, the employer can “save” 
those practices by demonstrating their business necessity. Unlike 
individual disparate treatment analysis—where, because the 
ultimate issue is the employer’s intent, the employer need only 
articulate a nondiscriminatory motivation not already disproven 
by the plaintiffs prima facie showing—under disparate impact 
analysis the employer’s burden is, after plaintiffs’ have proven 
disparate impact, to avoid the conclusion of unlawful discrimina­
tion by proving the business necessity of the practices and proce­
dures causing the disparate impact upon minorities. See, e.g., 
Albermarle Paper Co., 422 U.S. at 425.7

In sum, disparate impact analysis focuses solely on the effect 
of an employer’s practices. A prima facie showing of a statistical 
disparity in such a case is thus complete proof of unlawful dis­
crimination by the employer that, unless rebutted by proof of the 
business necessity of the challenged practices, mandates a 
finding in favor of plaintiffs. In contrast, a prima facie showing 
in an individual disparate treatment case is nothing more than 
the first step in a process designed to ferret out the employer’s 
intent. That is the difference between an individual disparate 
treatment prima facie showing and a disparate impact prima 
facie showing. And that is why it is entirely appropriate to shift 
the burden of proof, rather than merely production, to the 
employer in disparate impact analysis.

That is not to say, of course, that the employer may not challenge the 
accuracy or significance of plaintiffs’ statistics. Dot hard, 433 U.S. at 431. 
However, once the court has found disparate impact, the employer can only 
rebut that finding by proving the business necessity of the offending practice. 
E.g., Griggs, 401 U.S. at 431-32. That is the very nature of an affirmative 
defense. See Fed. R. Civ. P. 8. Significantly, even petitioners agree that “busi­
ness necessity" is an affirmative defense in disparate impact cases. (See Pet. 
Brief at 42 (“if the employer remains silent on the issue of disparate impact, 
that issue is established and he must come forward with what amounts to an 
affirmative defense of business necessity”)).



13

B. This Court Has Uniformly Held that the Burden of Proving 
Business Necessity Shifts to the Employer Following a 
Prima Facie Showing in a Disparate Impact Case.

Contrary to the suggestion of the United States (Brief for the 
United States at 25-28), this Court has consistently, indeed 
uniformly, held that in disparate impact cases, following a prima 
facie showing by plaintiffs, the burden of persuasion, not merely 
production, shifts to the employer. For this Court now to hold 
that the employer’s burden in disparate impact cases is one of 
production alone would require the overruling of a long and 
unbroken line of decisions dating back to Griggs v. Duke Power 
Co., 401 U.S. 424 (1971). There is no basis, we submit, for such 
a radical departure from well-established authority.

Thus, in Griggs itself, this Court flatly held that, once a statis­
tical showing of disparate impact is made, “Congress has placed 
on the employer the burden o f showing that any given require­
ment must have a manifest relationship to the employment in 
question”. 401 U.S. at 432 (emphasis added). Indeed, in Griggs, 
the employer articulated—but failed to prove—that its high 
school degree and standardized test requirements were related to 
successful job performance. This Court flatly rejected that 
proffer as insufficient to carry the employer’s burden and 
reversed the Fourth Circuit’s holding in favor of the employer. 
Id. at 431-36.

Similarly, in Albermarle Paper Co., this Court expressly held 
that the burden of persuasion of business necessity shifts to the 
employer, once plaintiffs make a prima facie showing:

Title Vll forbids the use of employment tests that are discrimina­
tory in effect unless the em ployer meets 'the burden o f  showing 
that any given requirement [has] . . . a manifest relationship to 
the em ploym ent in question’. This burden arises, of course, only 
after the complaining party or class has made out a prima facie 
case of discrimination, i.e., has shown that the tests in question 
select applicants for hire or promotion in a racial pattern 
significantly different from that of the pool of applicants. I f  an 
em ployer does then meet the burden o f  proving that its tests are 
’jo b  re la ted ’, it remains open to the complaining party to show 
that other tests or selection devices, without a similarly undesira­



14

ble racial effect, would also serve the employer’s legitimate inter­
est in ‘efficient and trustworthy workmanship’.

422 U.S. at 425 (citations omitted; emphasis added).
In Albermarle, as in Griggs, the defendant employer 

argued—but did not prove—that the tests at issue were job 
related, offering a post-litigation validation study done using job 
criteria that were not in fact used by the defendant but rather 
were created by defendant’s expert. This Court had little trouble 
in rejecting that “proof’ as insufficient to carry the defendant’s 
burden. Id. at 429-36.

Likewise, in Dothard, this Court held that, once a prima facie 
showing of disparate impact is made, the burden shifts to the 
employer to “prove[] that the challenged requirements are job 
related” . 433 U.S. at 329. The Court further held that, in a dis­
parate impact case, “a discriminatory employment practice must 
be shown to be necessary to safe and efficient job performance to 
survive a Title VII challenge”. Id. at 332 n. 14. In Dothard, the 
employer articulated that its height and weight requirements for 
prison guards were related to strength, which the employer 
further hypothesized was related to effective performance as a 
prison guard. This Court quickly rejected that business necessity 
defense on the ground that the employer had failed to prove the 
relationships it articulated:

We turn, therefore, to the appellants’ argument that they have 
rebutted the prima facie case of discrimination by showing that 
the height and weight requirements are job related. . . .  In the 
District Court, however, the appellants produced no evidence 
correlating the height and weight requirements with the requisite 
amount of strength thought essential to good job performance. 
Indeed, they failed to offer evidence of any kind in specific 
justification of the statutory standards.

433 U.S. at 331.
In short, this Court has consistently, and often, held that the 

employer’s burden in a disparate impact case is one of persua­
sion, not merely articulation. That is, and always has been, the 
understanding of Title VII practitioners representing both 
defendants and plaintiffs. There is no reason, we respectfully 
submit, for this Court now to overrule that long line of authority.



15

C. Sound Reasons of Public Policy and Practicality Warrant 
the Shifting of the Burden of Persuasion to the Employer in 
Disparate Impact Cases.

The only practical allocation of the burdens of proof in dispa­
rate impact cases is to shift the burden of persuasion of business 
necessity to the employer. Once the discriminatory effect of an 
employer’s practices is shown by the plaintiff s prima facie case, 
only the employer can fairly be expected to demonstrate that the 
practices in question are necessary.

For example, in a disparate impact case concerning an 
employment test or other objective measurement, an employer 
will most often defend job relatedness based upon validation of 
the measurement in question. See, e.g., Furnco, 438 U.S. at 
579-80. Validation is a complex, time consuming process and, as 
a practical matter, only the employer has sufficient access to, 
and familiarity with, the employment records and jobs at issue 
to conduct a validation study.8 Indeed, validation studies gener­
ally cannot be done properly simply by reviewing existing 
records. The party conducting such a study needs substantial 
access to current employees in order to administer a test and to 
compare job success as predicted by the job requirement at issue 
to actual job success. Civil discovery and access to Equal 
Employment Opportunity Commission files are simply not ade­
quate substitutes for the everyday access to the workplace 
enjoyed by employers. Indeed, plaintiffs are sometimes barred 
from any access to the workplace. See Belcher v. Bassett Furni­
ture Industries Inc., 588 F.2d 904 (4th Cir. 1978) (order 
granting plaintiffs’ counsel and expert five days access to 
defendant’s plant reversed as an abuse of discretion). Moreover,

8 Cf. Teamsters, 431 U.S. at 360 n.45:

[T]he employer [is] in the best position to show why any individual 
employee was denied an employment opportunity. Insofar as the reasons 
related to available vacancies or the employer’s evaluation of the appli­
cant's qualifications, the company’s records [are] the most relevant 
items of proof. If the refusal to hire [was] based on other factors, the 
employer and its agents [know] best what those factors were and the 
extent to which they influenced the decision making process.



16

validation requires scores of hours of work and a thorough 
familiarity with the requirements of the jobs at issue. Very few, 
if any, Title VII plaintiffs have the resources and the particular 
expertise necessary for such a validation, even if they had the 
requisite access to the workplace.9

Finally, sound public policy mandates that the burden of prov­
ing business necessity rest on the employer. If an employer’s per­
sonnel practices and procedures result in a statistically 
significant disparate impact on a protected class or classes, the 
employer should immediately, as a matter of public policy, vali­
date the business necessity of those practices and procedures. 
See Uniform Guidelines on Selection Procedures, 29 C.F.R. §§ 
1607, 1615 (1978).10 The employer should not wait until he is

9 For much the same reason, plaintiffs in disparate impact cases and pattern 
and practice disparate treatment cases cannot be expected to foresee each and 
every objection that employers might articulate at trial to their statistics. 
Plaintiffs cannot, in discovery, prepare for every such objection. Thus, as a 
practical matter, only the employer has adequate access to the facts to prove 
that its objections to plaintiffs’ statistics are soundly based in fact, and not 
merely hypothetical, and the employer should bear the burden of proving the 
factual basis of its objections. See, e.g., United States v. County o f Fairfax, 
629 F.2d at 940.

10 That is not to say that an employer has a legal obligation to conduct vali­
dation studies as soon as a racial disparity is observed. We suggest only that 
this Court should encourage, rather than discourage, such employers from 
attempting to discover why such disparities exist and determining if the job 
requirements causing the disparity are truly necessary. Moreover, not all prac­
tices require formal validation studies. Many are valid on their face.

The Equal Employment Advisory Council (“EEAC”) suggests in its amicus 
brief that validation studies cost between $100,000.00 and $400,000.00. (Brief 
for EEAC at 21 n. 4.) That estimate appears substantially high. Indeed, a 
survey of 1339 employers found that most validation studies cost as little as 
$5,000.00. See Friedman and Williams, Current Use o f Tests for Employment, 
in 2 Ability Testing: Uses, Consequences, and Controversies 104, 110-11 
(1982) (“In all size categories, most companies that validated their test or 
nontest selection procedures spent less than $5000 per job studied”). The 
EEAC further suggests that the Uniform Guidelines on Selection Procedures 
are inconsistent with “generally accepted professional practices in test develop­
ment”. {Id. at 21-22.) The American Psychological Association (“APA”), 
however, has gone on record with exactly the opposite position. Thus, in 1985, 
the APA wrote to EEOC Chairman Clarence Thomas that there was “no



17

sued under Title VII to verify the business necessity of such 
practices and procedures. If, however, the employer’s burden in 
a Title VII disparate impact action is merely one of articulating 
business necessity, employers will be discouraged from con­
ducting job validation studies in advance of litigation because to 
do so will expose them to a greater risk of liability (if, for exam­
ple, the study fails to show validity) than they face in litigation 
where the plaintiffs are unlikely to be able to conduct a 
definitive validation study.11

II. SPECIFIC CAUSATION IS NOT THE APPROPRIATE 
STANDARD IN A DISPARATE IMPACT CASE

Petitioners further contend that, in a disparate impact case, 
the plaintiffs should not be allowed to challenge the cumulative 
effect of an employer’s personnel practices but rather should be 
required to identify specific practices and demonstrate a specific 
disparate impact causally associated with each practice at issue. 
(Pet. Brief at 30-36.) Relying on Pouncy v. Prudential Insur­
ance Co., 668 F.2d 795, 800 (5th Cir. 1982) , petitioners argue 
that the disparate impact model is not “the appropriate vehicle 
from which to launch a wide-ranging attack on the cumulative 
effect of a company’s employment practices.” (Pet. Brief at 30 
(<quoting Pouncy, 668 F.2d at 800).)

Petitioners’ argument addresses an issue not fairly presented 
by this case. Indeed, the short answer to petitioner’s contention

compelling reason for revising” the uniform Guidelines on “technical 
grounds”. 110 Daily Labor Rep. (BNA) A-3 (June 7, 1985).

11 That analysis does not change when an employer’s subjective personnel 
policies are at issue. First, subjective personnel policies, like objective tests and 
other measurements, can be validated. See, e.g., Rose, Subjective Employment 
Practices: Does the Discriminatory Impact Analysis Apply?, 25 San Diego L. 
Rev. 63, 87-89 (1988). And second, in any event, the employer, who is by 
definition the party most familiar with the requirements of the jobs at issue, is 
still in the best position to defend the necessity of the practices at issue. That 
fact does not change simply because the practices are subjective in nature. And 
if the employer cannot defend the business necessity of his subjective personnel 
system in a Title VII case where disparate impact has been proven, he should 
not prevail.



18

is that this is not a case in which the plaintiffs made a shotgun, 
undifferentiated attack on the cumulative effect of an employ­
er’s personnel practices and procedures. To the contrary, 
plaintiffs challenged sixteen specific personnel practices used by 
petitioners. With respect to six of those practices, the Ninth Cir­
cuit Court of Appeals held that plaintiffs’ challenges were well- 
founded. Thus, upon a review of the trial record, the Ninth Cir­
cuit found that petitioners’ use of subjective criteria in making 
hiring decisions, petitioners’ nepotism policy, petitioners’ use of 
separate hiring channels and word-of-mouth recruitment for 
cannery and non-cannery jobs, and petitioners’ race labelling 
and segregated facilities caused a discriminatory impact upon 
minorities. For each of those practices, we submit, simple logic 
and well-established legal authority in this Court and the courts 
of appeals amply demonstrate a causal connection to disparate 
impact.

1. Subjective Criteria: As this Court recognized only last 
term, the use of subjective criteria by a predominantly 
white, male supervisory force inevitably raises problems 
of “subconscious stereotypes and prejudices”. Watson v. 
Fort Worth Bank and Trust, 487 U.S. , 108 S.Ct. at 
2780 (1988). Courts of appeals have likewise recognized 
that the use of subjective criteria in employment decision­
making presents a “ready mechanism” for discrimination, 
intentional or unintentional. E.g., EEOC v. Inland 
Marine Industries, 729 F.2d 1229, 1236 (9th Cir.), cert, 
denied, 469 U.S. 855 (1984); Rowe v. General Motors 
Corp., 457 F.2d 348, 359 (5th Cir. 1972).

2. Nepotism: Nepotism is, by definition, a practice of giving 
preference to relatives of current employees. Where the 
current employees are predominantly white, nepotism 
necessarily has an adverse impact on minorities. See, e.g., 
Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th 
Cir. 1982), cert, denied, 467 U.S. 1251 (1984) ; Gibson v. 
Local 40, 543 F.2d 1259, 1268 (9th Cir. 1976) .

3. Separate hiring channels and word-of-mouth 
recruitment: Where two work forces within a company



19

have significantly different racial compositions and the 
company employs both separate hiring channels and 
word-of-mouth recruitment the potential—indeed, the 
likelihood—for disparate impact upon minorities is obvi­
ous. Thus, where the already predominantly white super­
visory force hires through word-of-mouth recruiting, it is 
only logical to expect that a predominantly white 
workforce will be perpetuated. E.g., Barnett v. W. T. 
Grant Co., 518 F.2d 543, 549 (4th Cir. 1975) ; Brown v. 
Gaston County Dyeing Machine Co., 457 F.2d 1377, 1383 
(4th Cir.), cert, denied, 409 U.S. 982 (1972).

4. Race labelling and segregated facilities: Race labelling 
and segregated facilities—particularly in combination 
with the use of subjective criteria and word-of-mouth 
recruiting—similarly have an obvious, and adverse, 
impact upon the employment opportunities of minorities. 
Race labelling and segregated facilities reflect an obvious 
attitudinal “headwind” in the way of employment oppor­
tunities for minorities. See, e.g., Griggs, 401 U.S. at 432; 
Lilly v. Harris-Teater Supermarket, 842 F.2d 1496, 1506 
(4th Cir. 1988) . More to the point, if minorities are rele­
gated to segregated facilities, they are isolated from the 
news of job opportunities spread by word-of-mouth 
among white employees. See, e.g., United States v. 
Georgia Power Co., 474 F.2d 906, 925 (5th Cir. 1973) ; 
Domingo v. New England Fish Co., 445 F. Supp. 421, 
435 (W.D. Wash. 1977), affd, 727 F.2d 1429 (9th Cir.), 
modified, 742 F.2d 520 (9th Cir. 1984) .

In sum, the causal connection between the practices about 
which plaintiffs complain here and disparate impact upon 
minorities is well-established. For petitioners to claim that



20

plaintiffs did not prove a causal connection flies in the face of 
both law and logic.12

Moreover, it would be virtually impossible for plaintiffs to 
prove with any more specificity the causal connection between a 
particular subjective practice and a particular disparate impact. 
Employers often do not maintain records that clearly show why 
certain applicants were hired or promoted and others were not. 
Absent such records, plaintiffs cannot hope to prove specific 
causation of disparate impact in hiring or promotion. And even 
statistical techniques often cannot fill that evidentiary gap. For 
example, multiple regression analysis can identify the 
significance of specified objective criteria to pay rates or hire 
rates. Bazemore v. Friday, 478 U.S. 385 (1986); Wilkins v. Uni­
versity o f Houston, 654 F.2d 388 (5th Cir. 1981) , vacated, 459 
U.S. 809 (1982), a f f  d on rehearing, 695 F.2d 134 (5th Cir. 
1983). However, multiple regression analysis is ill-suited to deal 
with unquantifiable variables such as subjective hiring criteria. 
Indeed, it is difficult to envision any method of isolating the 
significance of an individual subjective practice in such a situa­
tion, particularly by the plaintiffs who necessarily have far less

12 Moreover, the alternatives to these practices are obvious and cannot seri­
ously be contended to be onerous. First, word of mouth recruiting can be easily 
replaced and/or supplemented with a job posting system at the canneries dur­
ing the season, and at recruitment sites throughout the year. Second, the effect 
of separate hiring channels can be modified or eliminated by enabling company 
recruiters to recruit and provide information for all jobs (i.e., a recruiter going 
to an Alaskan Native village would be in a position to recruit individuals with 
skill as mechanics and not just for cannery workers). Third, with regard to 
subjective criteria, it is not a tremendous burden for the employers to establish 
and use objective job descriptions; such job descriptions would allow an appli­
cant to determine his or her qualifications for a position and would provide a 
standard by which applicants could reasonably be judged. Job descriptions are, 
in fact, a reasonable and fairly standard managerial practice. Fourth, with 
regard to race labelling and segregated facilities, the alternatives are simple 
and obvious. What justification can there be for assigning employee numbers 
by ethnic origin or referring to facilities—bunkhouses, mess halls, etc.—by 
racial terms. And fifth, nepotism plainly has no significant relationship to job 
performance. Relatives of existing workers have no special qualifications neces­
sarily for the jobs at issue. There can be no hardship in simply eliminating 
nepotistic hiring.



21

familiarity with the personnel system at issue than the defendant 
employer.13

In any event, it lies ill in the mouths of these petitioners to 
contend that allowing a disparate impact attack on the cumula­
tive effect of multiple employment practices is somehow unfair 
to employers. (See Pet. Brief at 30-36.) Notwithstanding their 
protestations of the inability of employers’ to respond to cumula­
tive attacks, petitioners flatly claim to have proven the business 
necessity of each and every practice at issue. (See Pet. Brief at 
36 (“even if petitioners in this case had such a burden, they have 
met it”).)

Finally, even if the issue of the viability of a cumulative 
effects challenge were properly before this Court in this case, 
there is nothing unfair or inconsistent with Title VII theory in 
such a challenge. Indeed, even the United States concedes in its 
amicus brief that, in at least a multistage decision case, 
multifactor selection decisions may be challenged as a whole. 
(Brief for the United States at 22). See also Teal, 457 U.S. at 
450 (Powell, J., dissenting) (“our disparate impact cases consist­
ently have considered whether the result of an employer’s total 
selection process had an adverse impact upon the protected 
group”) (emphasis in original).

The Government’s concession is, we submit, compelled by this 
Court’s prior decisions and simple logic. First, it should not be 
forgotten that the sine qua non of a cumulative effects challenge 
is a statistical showing of a significant inequality in the employ­
er’s workforce statistics. If the employer’s personnel system were 
working fairly and impartially, one would not expect to see such 
a statistical disparity. E.g., Teamsters, 431 U.S. at 340 n.20.

13 Even to attempt such proof of specific causation is a daunting task. For 
example, in a disparate impact case against the City of Houston, Texas, the 
Lawyers’ Committee sought to “disaggregate” over twenty different standards 
used by the employer and identify their specific disparate impact. That effort 
required the duplication of almost 150,000 pages of the defendant’s records 
and the employment of approximately twenty temporary workers to review 
those records. That effort was, to say the least, extremely expensive. See 
Tarver v. City o f Houston, 22 EPD 30,689 at p. 14,627 (S.D. Tex. 1980).



22

Thus, to hold that an employer is immune from Title VII chal­
lenge simply because the plaintiffs are unable to identify the 
specific practice or practices causing specific portions of the dis­
parate impact would, in all likelihood, allow significant examples 
of employment discrimination to go unremedied. See Green v. 
USX Corp., 843 F.2d 1511, 1521-22 (3d Cir. 1988) , petition for 
cert, filed , 57 U.S.L.W. 3123 (U.S. July 23, 1988) (No. 
88-141).

Second, the broad remedial purpose, and express statutory 
language, of Title VII support the proposition that cumulative 
effects challenges are proper. Indeed, in a Senate Report pre­
pared during the passage of the 1972 amendments to Title VII, 
Congress noted that employment “systems” can be, and often 
are, the cause of discrimination:

Employment discrimination is viewed today as a ... complex and 
pervasive phenomenon. Experts familiar with the subject now 
generally describe the problem in terms of ‘systems' and ‘effects' 
rather than simple intentional wrongs.

S. Rep. No. 415, 92nd Cong., 1st Sess. 5 (1971) (emphasis 
added).

Similarly, the express language of 703(a)(2) of Title VII pro­
vides broadly that it is an unlawful employment practice for an 
employer

to limit, segregate or classify his employees or applicants for 
employment in any way which would deprive or tend to deprive 
any individual of employment opportunities or otherwise 
adversely affect his status as an employee, because of such indi­
vidual’s race, color, religion, sex or national origin.

42 U.S.C. § 2000e-2 (emphasis added).14

Congress’ broad proscription of employment practices that 
discriminate “in any way” is certainly broad enough to encom­
pass challenges to the cumulative effects of personnel systems. 
As this Court noted in Griggs, Congress intended in Title VII to

14 In Teal, 457 U.S. at 448, this Court noted that disparate impact analysis 
is based on § 703(a)(2) of Title VII.



23

outlaw any and all employment practices that unnecessarily 
operate “as ‘built-in headwinds’ for minority groups.” 401 U.S. 
at 432. Thus, if the cumulative effects of an employer’s entire 
personnel system deprive minorities of employment opportuni­
ties, it would be flatly inconsistent with the purpose of Title VII 
to exonerate that system absent a showing by the employer that 
its system is justified by business necessity (or, at least, that the 
practices and procedures the employer shows caused the dispa­
rate impact are justified).

Indeed, the Uniform Guidelines on Employee Selection Proce­
dures promulgated by the EEOC, Civil Service Commission and 
Departments of Labor and Justice support that conclusion. 
Those Procedures specifically define the employment practices 
that are subject to disparate impact review to include combina­
tions of practices. The Guidelines provide that disparate impact 
analysis applies to

[a]ny measure, combination o f measures, or procedure used as a 
basis for any employment decision. Selection procedures include 
the full range of assessment techniques from traditional paper 
and pencil tests, performance tests, training programs, or proba­
tionary periods and physical, educational and work experience 
requirements through informal or casual interviews and unscored 
application forms.

29 C.F.R. § 1607.16(Q) (emphasis added).15

Third, contrary to the assertions of petitioners and the United 
States as amicus curiae, there is nothing unfair about shifting 
the burden to the employer to choose whether disaggregation 
would serve its interests and, if so, to identify the practices 
causing disparate impact and to justify the business necessity of 
those practices once the plaintiffs have shown a disparity. It is 
employers who are most knowledgeable about their own person­
nel systems. And it is employers who have the best access to 
evidence concerning those systems. As the Third Circuit recently 
noted:

15 This Court has expressly held that the Uniform Guidelines are “entitled to 
great deference” as “the administrative interpretation of [Title VII] by the 
enforcing agency”. Albermarle, 422 U.S. at 431; Griggs, 401 U.S. at 433-34.



24

Applying disparate impact analysis to this employer’s hiring ‘sys­
tem’ and measuring the disproportionate ‘effects’ on minority 
hiring that result may impose a difficult burden on the employer, 
but not an unfair one. In these eases the employer has far better 
access and opportunity than the plaintiffs to evaluate critically 
the inter-relationship o f the criteria that it uses in hiring prac­
tice, and to determine which aspects actually result in 
discrimination.

Green v. USX Corp., 843 F.2d at 1524 (emphasis added). See 
also Segar v. Smith, 738 F.2d 1249, 1271 (D.C. Cir. 1984), cert, 
denied, 471, U.S. 11 15 (1985).

And fourth , should this Court hold that it is always the 
plaintiffs’ burden to link specific employment practices with 
specific disparities, the result will be to encourage employers to 
have no personnel system at all, or to structure their employment 
systems in as complicated a fashion as possible (which may be 
the functional equivalent of no system at all), and to maintain as 
few personnel records as possible. In that way, employers may 
well be able to render themselves immune from Title VII attack, 
no matter how skewed their employment statistics might be, 
because plaintiffs will be unable to identify the practice or prac-



25

tices that caused discrimination and/or prove the causal link. 
This Court, we submit, should not encourage such a result.16

III. THE NINTH CIRCUIT COURT OF APPEALS COR­
RECTLY HELD THAT RESPONDENTS’ STATISTICS 
MADE OUT A PRIMA FACIE CASE OF DISPARATE 
IMPACT

Finally, petitioners contend, again supported by the United 
States as amicus curiae, that plaintiffs’ statistics which show a

16 In its amicus brief, the United States suggests that this Court adopt a 
single governing formulation with respect to the inquiry into business 
justification once a plaintiff has made out a prima facie case under the dispa­
rate impact mode. (Brief for the United States at 23-25.) The United States 
proposes that this Court adopt a standard allegedly “encapsulated” in New 
York City Transit Authority v. Beazer, 440 U.S. 568, 587 n.31 (1979). Thus, 
the United States would find a challenged practice justified as a business 
necessity where the employer’s “legitimate employment goals of safety and 
efficiency . . .  are significantly served by—even if they do not require— [the 
challenged selection practice]”. That issue is not presented in this case, how­
ever, and we respectfully submit that this Court should not address an issue not 
briefed, argued or decided in the courts below and not the subject of this 
Court’s writ of certiorari.

Furthermore, the standard proposed by the United States is too low and 
would thwart the central purpose of Title VII. As Justice Blackmun recognized 
in his concurrence in Watson, “ [pjrecisely what constitutes a business necessity 
cannot be reduced, of course, to a scientific formula”. Watson, 487 U.S. at 

, 108 S.Ct. at 2794. Nevertheless, it is well-established that a mere 
“significant” relationship to “legitimate employment goals” is not enough. 
“Congress has placed on the employer the burden of showing that any given 
requirement must have a manifest relationship to the employment in ques­
tion.” Griggs, 401 U.S. at 432 (emphasis supplied). As Griggs made clear, 
“ [t]he touchstone is business necessity.” 401 U.S. at 301.

Moreover, in Beazer, this Court did not follow the standard that the United 
States proposes but merely recognized that the district court had made a 
finding that the defendant’s employment goals of safety and efficiency actually 
did require the exclusion of all users of illegal narcotics. The Court did not 
adopt a mere “relationship” standard as the employer’s burden in a disparate 
impact case. To the contrary, the Court expressly followed the standard articu­
lated in Griggs, noting that the record in Beazer sufficiently reflected that the 
defendant’s rule demonstrated a “manifest relationship to the employment in 
question”. Beazer, 440 U.S. at 587 n. 31 (quoting Griggs, 401 U.S. at 438).



26

striking disparity between a concentration of minority workers 
in lower level, lower paid cannery jobs and a paucity of minori­
ties in higher level, higher paid non-cannery jobs fail to make a 
prima facie showing of disparate impact. In summary, petition­
ers contend that only statistics which compare the number of 
minorities in non-cannery jobs and the number of minorities in 
the qualified labor force are relevant here. (Pet. Brief at 15-24. 
See also Brief for the United States at 16-21.)

Petitioners have missed the point. This case is not about a sim­
ple comparison of the number of minorities in the non-cannery 
jobs and in the qualified labor pool. This case is about petition­
ers’ recruiting practices and the systematic exclusion of minori­
ties in low paid cannery positions from the opportunity to even 
apply, much less be hired, for the higher paid non-cannery jobs. 
For those issues, plaintiffs’ comparison between the number of 
minorities in cannery jobs and the number of minorities in non­
cannery jobs is entirely proper.

As the Fifth Circuit has stated:

‘In the problem of racial discrimination, statistics often tell 
much, and Courts listen.’ . . . Our wide experience with cases 
involving racial discrimination in education, employment, and 
other segments of society has led us to rely heavily in Title VII 
cases on the empirical data which shows an employer’s overall 
pattern of conduct in determining whether he has discriminated 
against particular individuals or a class as a whole.

Burns v. Thiokol Chemical Corp., 483 F.2d 300, 305 (5th Cir. 
1973) (citations omitted).17

There is no uniform rule that determines what types of statis­
tics are useful in what types of cases. The relevancy of particular

17 See also Teamsters, 431 U.S. at 340 n. 20, quoting B. Schlei and P. 
Grossman, Employment Discrimination Law at 1161-93 (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 statis­
tics to uncover clandestine and covert discrimination by the employer or 
union involved.



27

statistical showings can only be determined on a case-by-case 
basis. See, e.g., Hazelwood School District v. United States, 433 
U.S. at 311-12 ; Falcon v. General Telephone Co. o f the South­
west, 626 F.2d 369, 382 (5th Cir. 1980), vacated, 450 U.S. 
1036, a f f  d on rehearing, 647 F.2d 633 (5th Cir. 1981); Davis v. 
City o f Dallas, 483 F. Supp. 54, 60 (N.D. Tex 1979). As this 
Court pointed out in Teamsters, statistics “come in infinite vari­
ety” and “their usefulness depends on all of the surrounding 
facts and circumstances” . 431 U.S. at 340. There is, in short, no 
hard and fast rule that statistical comparison in Title VII cases 
must be between the employer’s workforce and the “qualified 
labor pool”.

This is a unique case, involving seasonal work, often 
performed by migrant workers under exceptionally difficult con­
ditions. Routine statistical analyses do not apply. The facts and 
circumstances of this case mandate an approach to the relevant 
statistics tailored to the facts of this case.

Thus, here, a comparison to the so-called qualified labor force 
is beside the point. The crux of the issues raised by plaintiffs’ 
challenges to petitioners’ employment practices is the claim that 
those practices denied cannery workers the opportunity to com­
pete fairly for higher paying non-cannery jobs. By employing 
such hiring techniques as nepotism, word-of-mouth recruiting, 
separate hiring channels and use of subjective criteria, petition­
ers effectively precluded minority cannery workers from 
applying or being hired for non-cannery jobs. Similarly, such 
practices as race labelling and segregated facilities contributed 
substantially to a lack of knowledge of job opportunities on the 
part of minority cannery workers.18 In total, those techniques 
assured that the current racial make-up of petitioners’ non­
cannery workforce would be perpetuated.

18 Petitioners contend that plaintiffs’ workforce comparison statistics are 
irrelevant because petitioners do not have a “promote from within” policy. 
That again misses the point. Whether or not petitioners have such a policy, it is 
a violation of Title VII to use employment practices that actively preclude 
lower level minority workers from the opportunity even to be considered for 
higher level positions where those practices cause disparate impact.



28

The fact that petitioners’ non-cannery workforce may reflect 
the racial breakdown of the qualified outside workforce is simply 
irrelevant to the issue of opportunity here. As this Court recog­
nized in Connecticut v. Teal, 457 U.S. 440 (1982) , the “bottom 
line” of petitioners’ hiring practices is not a defense to a claim 
that those practices unlawfully curtail employment opportunities 
for minorities:

In considering claims of disparate impact under § 703(a)(2) this 
Court has consistently focused on employment and promotion 
requirements that create a discriminatory bar to opportunities. 
This Court has never read § 703(a)(2) as requiring the focus to 
be placed instead on the overall number of minority or female 
applicants actually hired or promoted.

*  *  *

. . . The suggestion that disparate impact should be measured 
only at the bottom line ignores the fact that Title VII guarantees 
these individual respondents the opportunity to compete equally 
with white workers on the basis of job related criteria.

Id. at 450-51 (emphasis in original).

Moreover, petitioners, as the Court of Appeals properly found, can­
not properly rely on their so-called qualified labor force statistics. As 
an initial matter, and as the district court found, Pet. App. I at 75-76, 
many of the non-cannery jobs at issue here were unskilled and hence 
required no particular qualification. Accordingly, the cannery workers 
plainly should have been eligible for those jobs. More generally, how­
ever, petitioners never proved that their purported job qualifications 
criteria were actually applied.19 Absent such proof, petitioners’ 
qualified labor force statistics are irrelevant and worthless. E.g., 
Franks v. Bowman Transportation Co., 424 U.S. at 773 n. 32 (only 
non-discriminatory standards “actually applied” by employers are 
relevant).

19 See, e.g., Pet. App. at A-574-75 (trial testimony of Larry L. DeFrance); 
Pet. App. at A-236 (Deposition of Warner Leonard).



29

In sum, the Ninth Circuit properly held that plaintiffs’ statistics 
made a prima facie showing of disparate impact of discrimination in 
job opportunities.20

CONCLUSION

In recent years, the number of employment discrimination 
class actions filed has declined precipitously, from a peak of 
1,174 in 1976 to only 46 in 1988.21 A portion of that decrease 
may be attributable to a decline in employment discrimination 
in the United States, but there can be little doubt that private 
enforcement of Title VII through class actions has suffered sub­
stantially in recent years as the cost in money and effort of 
prosecuting Title VII class actions has risen substantially, if not 
exponentially. If the burdens of proof in disparate impact cases 
are revised as espoused by petitioners and the United States to 
further increase substantially, indeed drastically, the burden of 
proof on plaintiffs and correspondingly decrease the employer’s 
rebuttal burden, we fear that no plaintiffs will have the resources 
or, indeed, the incentive to pursue Title VII class actions. The 
most important method of enforcement of Title VII—the class 
action—may, for all practical purposes, cease to exist. That 
would, we submit, be a most unfortunate result for the cause of 
equal employment opportunity.

20 If this Court should conclude that the facts of record do not make out a 
prima facie case of disparate impact, then we respectfully suggest that the 
Court remand this matter for the presentation of further evidence and findings 
by the District Court. As the appellate process in this case demonstrates, given 
two panel opinions and one en banc decision, as well as this Court’s opinion, the 
legal standards governing plaintiffs’ case have shifted considerably during the 
litigation. Accordingly, plaintiffs should be given an appropriate opportunity to 
conform the evidence to the proper legal standard. See, e.g., Albermarle, 422 
U.S. at 436 (where the Court remanded the case to the District Court to allow 
-both the plaintiffs and the defendant to revise their evidentiary showings to 
conform to the new legal standards set forth in the Court’s opinion).

21 1977 Report of the Director, Administrative Office of the U.S. Courts, 
Table 32, p. 239; Table X-5, Unpublished Computer Analysis prepared by the 
Administrative Office of the U. S. Courts.



30

Accordingly, for the reasons set forth above, the Lawyers’ 
Committee for Civil Rights Under Law respectfully submits 
that the decision of the Ninth Circuit Court of Appeals should 
be affirmed.

Respectfully submitted,

C o n r a d  H a r p e r  
S t u a r t  J. L a n d  
Co-Chairmen 
N o r m a n  R e d l ic h  
Trustee
R ic h a r d  T. S e y m o u r  
Ja m e s  C. G r a y , J r .

L a w y e r s ’ C o m m it t e e  
F o r  C iv il  R ig h t s  
U n d e r  L a w  
1400 “Eye” Street, N.W. 
Suite 400
Washington, D. C. 20005 
(202)371-1212

N ic h o l a s  d e B . K a t z e n b a c h * 
A l a n  E. K r a u s  
D a v i d  A r c is z e w s k i

R ik e r , D a n z i g , S c h e r e r , 
H y l a n d  & P e r r e t t i  

Headquarters Plaza 
One Speedwell Avenue 
Morristown, New Jersey 

07960-1981 
(201) 538-0800

Attorneys for Amicus Curiae 
Lawyers’ Committee for Civil Rights 

Under Law

November 4, 1988

*Counsel of Record