Albemarle Paper Company and Halifax Local No. 245, United Papermakers and Paperworkers, AFL-CIO v. Moody Brief for Amici Curiae

    3n %  © u p ro ar (Cintri uf %  ITttIJrit ©Jaffa
October Term, 1974

No. 74-389

A lbemarle Paper Company, et al., petitioners

V.

J oseph P. Moody, et a l .

No. 74-428

Halieax Local No. 245. United Paeeemakers 
and Paperworkers, AFL-CIO, petitioner

V.

J oseph  p. Moody, et a l .

ON WRITS OF CERTIOHAl 
COURT OF APPEALS FC TO THE UNITED STATES 

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES ANI) TTTF 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE '

( 1 )



QUESTIONS PRESENTED

1. Whether a district court, in determining 
whether to award bade pay to members of an iden­
tifiable class of persons who have suffered economic 
injury because of racially discriminatory employment 
practices in violation of Title VII of the Civil Rights 
Act of 1964, must exercise its discretion in a manner 
consistent with the remedial purposes of the Act.

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

INTEREST OF THE UNITED STATES

Pursuant to Title VII of the Civil Rights Act of 
1964 and Executive Order 11246, the Equal Employ­
ment Opportunity Commission, the Attorney Gen­
eral, and other branches of the federal government 
have responsibility for enforcement of federal laws 
providing for equal employment opportunities. Al­
though this case was brought by private plaintiffs, 
the issues concerning back pay and testing raised 
here are similar to issues that arise in suits brought 
by the government. The resolution of the issues 
presented in this case will directly affect the govern­
ment’s enforcement responsibilities.

STATEMENT

1. On August 26, 1966, respondents, after they 
had received a right-to-sue letter from the Equal



Employment Opportunity Commission, filed a class 
action against their employer, Albemarle Paper 
Company (petitioner in No. 74-389), and their union, 

alifax Local No. 425 (petitioner in No. 74-428) * 
alleging- that the defendants were engaged in racially 
(hscnmmatory employment practices in violation of

42 u l  C 2000 '! RightS A d' °f 1964’ as ^ d e d .42 U.S.C. 2000e, et seq. The complaint sought a
permanent injunction against those practices and
pi aye or ‘such other relief as may appear to the
wouit to be equitable and just” (A. 10).

The alleged discriminatory employment practices 
took Place a t Albemarle’s paper mill in Roanoke 
Rapids, North Carolina. The principal business of 
the paper mill is the production of kraft paper, plup,

Spon“ emd“ f h T i UhM t ' ed ” *  cl“ “ s '-Presented by re-
Rapids nHnt of i  ®t“eS employed »* ‘he Roanoke 
1967 (2 “h i vr„ Aloemarle Paper Company as of Juno 30,
1967 i f f  8 °fs cmP'"y«l at said plant after June 30 
in h h r  f  10Se "liti!!l Permanent positions were not
* » ? ! ? ' ! '  ," S ited *° ?r Predominantly staffed by wegioes, and (3) all Negroes who may hereafter annlv f o r  m• ■

by tte  X n e l rad T T *  »*”*  "'ho may >* W « t« l
of the d e S n b ' '  “ A. d,scnm,„n,o,yemployment practices

2 J he 0,'J-nnal three defendants were Albemarle Paper Com- 
pany (Vmgmia), tlie United Papermakers and Paperworkers 
and Papermakers Halifax Local 42̂ 5 TPo intn, ! coiners,
was subsequently dismissed as a defendant (a / i G)^',! 1968'
the company’s assets were sold and transferred in a s e r S
t  T ^ 10113' AS a rCSU,t> Albemarle Paper Company (Del-
“r X s t  W um  r  d° ' f  C0rp0rati0"’ Corporation,and hirst Alpaco Corporal,on were joined as defendants (A.

I i
1



4

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

In addition to the lines of progression, the mill, 
prior to 1968, had two “extra boards”—reservoirs 
of employees who were available to staff the lowest- 
level jobs in the lines of progression. The General 
Extra Board supplemented the shilled lines of pro­
gression; the Utility Extra Board supplemented the 
unskilled lines of progression (A. 485). The extra 
boards were staffed by new employees and employees 
who had been laid off from other jobs and were await­
ing recall (ibid.). In 1968, the two extra boards 
were merged (A. 486).

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

Albemarle uses personnel tests in selecting appli­
cants for employment in certain jobs. Since 1968,



applicants for 13 lines of progression in eight depart­
ments J have generally been required to have a high 
school education and to score successfully on the 
Revised Beta Examination—a nonverbal test devel­
oped during World War I to measure the intelli­
gence of illiterate and non-English-speaking persons 
- a n d  the Wonderlic A or B Series exam inations- 
short, verbal tests used to measure general mental 
ability (A. 100-101, 487-488, 514).

in te r  a trial, rue district court found that
“Ipjrior to January 1, 1904, Albemarle’s lines of 
progression were strictly segregated on the basis of 
race” (A. 480). Approximately 86 of the 100 jobs 
at the plant were “traditionally reserved for white 
persons” (A. 477). The court found that “ [tjhose 
lines of progression to which black employees were 
traditionally assigned were lower paying than the 
‘white’ jobs and departments in lines of progression 
weie maintained subsequent to the effective date of 
Title VII (Ju ly '2, 1965)” (A. 480). The extra 
boards were also segregated on the basis of race. As 
of June 1967, there were 62 white and two black 
employees assigned to the General Extra Board; no 
whites and 50 blacks were assigned to the Utility 
Board (A. 48-4-485).

3 ^he?e fi- urGS were derived by the district court and the 
court of appeals from a stipulation filed on July 25 1971 (A 
86-10G). Albemarle states (Br. 13) that, as a result of changes 
m mill operations, the tests were administered, by the time of 
trial, to applicants for only eight lines of progression in four 
departments.



6

Although a 19G8 collective bargaining agreement 
effected some “changes in the lines of progression 
[that] had the effect of eliminating, to some extent, 
their strictly segregated composition,” “black em­
ployees were still ‘locked’ in the lower paying job 
classifications” (A. 485). Similarly, while the two 
extra boards were merged in 1968, “ [ejmployees on 
the merged board still retain recall rights to jobs 
and lines of progression which they held prior to 
being reduced to the call board,” so that “black 
employees are recalled to black jobs and white em­
ployees are recalled to white jobs” (A. 486).

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

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

The court ordered the defendants “to abolish the ex­
isting seniority system based substantially on job 
seniority” and “to implement and permanently con-, 
tinue a system of plant seniority * * * so that. * *



*

7

when employees of the affected class, and the quali­
fications of the competitors are relatively equal, plant 
seniority rather than job seniority shall govern” (A. 
499-500).

The district court declined to award back pay to 
members of the class who had suffered economic in­
jury as a result of the discriminatory employment 
practices that locked them into the lower paying 
jobs to which they had been assigned on the basis 
of race. The court rested its denial of back pay on 
two considerations. First, “there was no evidence 
of bad faith non-compliance with the Act” (A. 498)." 
Second, the plaintiffs did not specifically seek back 
pay in their complaint5 and did not assert a back 
pay claim until “nearly five years after the institu­
tion of this action” (ibid,). “ (T]he defendants 
would be substantially prejudiced by the granting of 
such affirmative relief,” the court stated, because they 
“might have chosen to exercise unusual zeal in hav­
ing this court determine their rights at an earlier 
date had they known that back pay would be at issue” 
(ibid.).

4 The court stated that Albemarle had begun in 19G4 to re­
cruit blacks for its Maintenance Apprentice Program, that it 
merged some lines of progression on its own initiative and 
took certain steps to correct abuses in accordance with de­
veloping judicial interpretations of the Act, and that it paid 
higher wages for all levels of employment than did other in- 
dutries in the area (A. 498).

1 In their memorandum in opposition to a motion for sum­
mary judgment, plaintiffs stated that “ [n]o money damages 
are sought for any member of the class not before the. court” 
(A. 13-14).



8
The court also rejected respondents’ contention 

that Albemarle’s testing requirements are unlawful 
because they have a disproportionate adverse impact 
on blacks and were not shown to be related to job 
peiformance. It concluded that “,[t]he personnel tests., 
administered at the plant have undergone validation 
studies and have been proven to be job related” (A 
497).

The validation study conducted by Albemarle cov­
ered 10 job groups in 8 of the 14 lines of progression 
for which the tests are required (A. 514). Albe­
marle’s expert conducted no job analysis of the jobs 
covered by the study.0 The sample of employees 
tested for the study were selected from the top and 
middle ranges of the lines of progression (A. 490). 
Their scores on each of the three tests use by Albe­
marle—Beta, Wonderlic A, and Wonderlic B__were
compaied with job performance ratings assigned to 
them by two supervisors, who rated them according 
to this standard: “Excluding a man’s attitude, just 
how well the guy can do the job when he’s feeling 
right” (A. 195, 514-515). The study found “[ s ig ­
nificant correlations * * * for at least one of the three 
tests investigated for nine of the ten groups of jobs” 
(A. 431). The use of all three tests was found valid 
only for one of the 10 job groups, and the use of the 
Beta together with either Wonderlic A or Wonderlic

0 The expert spent only about a half day at the plant (A. 
174). He had no written job descriptions (ibid.) and did not 
speak with any supervisors while he was at the mill (A. 175).



A

B - th e  use made of the tests by Albemarle '- w a s  
found valid only for two of the 10 job groups (A.

f e ^  0f that validation study, the district 
com t found that “ [tjhe defendants have carried the

ness Of i f  pr00f” m <ien,01,stratine  job-related- ncss of the company’s testing program (A. 497) The
court found, however, that “the high school education 
equnement used m conjunction with the testing re­

quirements is unlawful in that the personnel tests 
one cue adequate to measure the mental ability and

?At r n 1 , f  required tw  lhe •'<* classifications”
' 4J7). I t accordingly enjoined Albemarle from

lequnmg a high school education as a prerequisite 
or employment, promotion or transfer” (A. 502).

. lh e  court of appeals reversed with respect to 
ie back pay and testing issues (A. 512-537).8 
On the back pay issue, the court held that neither 

plaintiffs delay m making a claim for back pay nor 
the lack of evidence of bad faith noncompliance with 
ne ct ‘is sufficient to justify the district court’s 

refusal to award back pay” (A. 520). Rely in «• 0„ 
its rejection of similiar contentions in Robinson v 
Lorillard Corp., 444 F. 2d 791, the court of appeals 
i easoned that Albemarle was not substantially preju-

s e r i f ^ h f w  T , ? ivf  the Beta examination and botli seller oi the WonderJic test. Tiiey are )vmiir„i .
satisfactorily both on the Beta and on either the Wondcrlic 
A or the Wonderlic B (A. 220). "omieiuc

6 Petitioners did not anneal -mv oen,v<- , .
court’s order. * abpettfc of the district

i



10

diced by the plaintiffs’ delay in seeking back pay and 
that a showing of bad faith is not required for an 
award of back pay, because the award is designed 
not to penalize the employer but to compensate the 
victims of the discrimination for their tangible eco­
nomic loss.

The court rejected the contention that the denial 
of back pay should nevertheless be sustained as 
within the discretion of the district court. “Where 
a district court fails to exercise discretion with an 
eye to the purposes of the Act, it must be reversed” 
(A. 523). The court stated that, in view of “the 
compensatory nature of a back pay award and the 
strong congressional policy embodied in Title VII”— 
which favors making the victims of the unlawful 
discrimination economically whole so far as possible— 
“a plaintiff or a complaining class who is successful 
in obtaining an injunction under Title VII of the 
Act should ordinarily be awarded back pay unless 
special circumstances would render such an award 
unjust” (A. 523-524). It held that “there are no such 
special circumstances here “ (A. 524).

With respect to testing, the court- stated: “The 
effect of the district court’s approval of Albemarle’s 
testing procedure is to approved a validation study 
done without job analysis, to allow Albemarle to 
require tests for G lines of progression where there 
has been no validation study at all, and to allow 
Albemarle to require a person to pass two tests for 
entrance into 7 lines of progression when only one 
of those tests was validated for that line cf nrogres-



11

sion. We think this was error” (A. 515). The court 
concluded that the tests were not shown to have 
“a manifest relationship” to the jobs for which they 
are used by Albemarle. Since “ [t]he plaintiffs made 
a sufficient showing below that Albemarle’s testing 
procedures have a racial impact” (A. 515), and since 
Albemarle failed to show that the tests are substan­
tially job related, it followed under Griggs v. Duke 
Power Co., 401 U.S. 424, that the testing procedure 
is unlawful.”

SUMMARY OF ARGUMENT 

1

A. When the district court finds, that an employer 
or a labor union has intentionally engaged in unlaw­
ful employment practices, it may enjoin those prac­
tices and may “order such affirmative action as may 
be appropriate, which may include * * * reinstate­
ment or hiring of employees, with or without back 
pay” (42 U.S.C. (Supp. I ll)  2000e-5(g)). The 
court’s discretion with respect to back pay awards 
must, however, be exercised in accordance with “the 
large objectives of the Act” (Hecht Co. v. Bowles, 
321 U.S. 321, 331), for it is the duty of a court of 
equity “to provide complete relief in light of the 
statutory purposes” (Mitchell v. Robert DeMcti io 
Jewelry, Inc., 361 U.S. 2SS, 292).

* Judge Boreman dissented on the testing issue (A. 524- 
532), and Judge Bryan dissented on the back issue (A. 532- 
537).



12

The objectives of Title VII are to eliminate dis­
criminatory employment practices and, so far as pos­
sible, to compensate the victims of employment dis­
crimination for their economic loss caused by the 
discrimination. The district court’s duty “to fashion 
the most complete relief possible” (see IS Cong. Rec. 
7168, 7565) upon a finding of employment discrim­
ination ordinarily means that it must both enjoin 
the unlawful practices and award back pay to the 
injured victims. “Only thus can there be a restora­
tion of the situation, as nearly as possible, to that 
which would have obtained but for the illegal discrim­
ination” (Phelps Dodge Carp. v. National Labor Re­
lations Board, 313 U.S. 177, 194). Moreover, the 
reasonably certain prospect that back pay will be 
awarded provides an important economic incentive 
for employers and unions to comply voluntarily with 
the provisions of Title VII and thereby to bring a 
prompt end to employment discrimination.

It follows that the Act’s policies of making the 
victims whole and deterring future discrimination re­
quire back pay to be awarded to the injured em­
ployees unless, for substantial reasons that are con­
sistent with the Act’s purposes, awarding back pay 
would be unjust to the employer or the union. That is 
the standard that the court of appeals applied here 
and that this Court applied with respect to awards 
of counsel fees under Title II of the Act in Newman 
v. Biggie Parle Enterprises, Inc., 390 U.S. 400, 402.

B. The district court’s reasons for denying back 
pay in this case do not satisfy that standard. Since



IS

the 1 emedial purpose of Title VII is to compensate 
the injured victims of employment discrimination and 
not to punish the employer, the absence of “bad faith 
non-compliance” (A. 498) does not justify denying 
back pay. A requirement that injured employees 
prove malice and deliberate recalcitrance would be 
an unwarranted obstacle to effective relief and would 
weaken the incentive for voluntary compliance by 
making back pay awards depend upon the applica­
tion of an uncertain, subjective standard. This Court 
1 ejected a similar standard for the award of counsel 
fees in Newman v. Piggie Park Enterprises, Inc., 
supra, and it should reject it here as well.

Nor was the plaintiffs’ delay in asserting a back 
pay claim on behalf of the entire class of injured 
employees a proper basis for denying back pay. The 
defendants were aware of that claim at least one 
year prior to trial, and their defenses to the claim 
were identical to their defenses with respect to in­
junctive relief. There is no foundation for the dis­
trict court’s speculation that the defendants “might 
have exercised unusual zeal” (A. 498) in expediting 
a trial if they had known of the back pay claim 
earlier, nor is there any support for petitioners’ as­
sertion that discovery was made more difficult by 
plaintiffs’ delay. In the absence of a showing of sub­
stantial prejudice, that delay did not affect the dis­
trict court’s duty to award complete relief.

c. Back pay relief is not limited to those mem­
bers of the class who have tiled individual charges 
with EEOC. The tiling of a single charge alleging



14

unlawful employment practices fully satisfes the pur­
poses of Title VII’s filing requirement by putting 
the employer on notice of the charge and invoking 
EEOC’s conciliation functions. There is no reason 
to require the filing of numerous identical claims. 
Congress considered and rejected precisely such a 
requiiement when it enacted the 1972 amendments 
to Title VII.

II

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

B. The court of appeals correctly concluded that 
Albemarle did not carry its burden of showing that 
its present use of the tests “have a manifest rela­
tionship to the employment in question” (Griggs v. 
Duke Power Co., 401 U.S. 424, 431). In making 
that determination, the court of appeals properly 
looked to the EEOC Guidelines as “a helpful sum­
mary of professional testing standards” (Vulcan So­
ciety v. Civil Service Commission, 490 F. 2d 387, 
394, n. 8 (C.A. 2)) and made proper use of the



15

Guidelines m assessing the adequacy of Albemarle’s 
test validation study.

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

Albemarle s study was not conducted in accord­
ance with the Guidelines, and the company neither 
justified the departure nor demonstrated that the 
study was otherwise adequate. Albemarle’s expert 
failed to conduct a job analysis to determine the skills 
and abilities required for successful performance of 
the jobs he studied; under generally recognized pro­
fessional standards, a job analysis is an essential 
first step m a proper employment test validation 
study. Its absence in Albemarle’s study made it nec­
essary to rely on a vague, subjective standard for 
supervisory ratings of employees and made it impos­
sible to tell whether the abilities rated by the super- 
visors and measured by the tests are the ones that 
are necessary to perform the jobs at the mill.



16

The study also departed from professional stand­
ards because Albemarle’s expert took no precautions 
to ensure that the tests were administered under 
controlled and standardized conditions and that the 
raters were kept unaware of the employees’ test 
scores. Moreover, the jobs studied were at the higher 
levels in the plant, although applicants for employ­
ment naturally begin work at the lower levels. Al­
bemarle did not show that it was reasonable to 
validate the tests for the jobs studied rather than 
those that a new employee would perform.

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



17

ARGUMENT

THE COURT OF APPEALS CORRECTLY HELD 
THAT BACK PAY SHOULD BE AWARDED TO 
THE IDENTIFIABLE VICTIMS OF UNLAWFUI 
EMPLOYMENT DISCRIMINATION HERE TO COM­
PENSATE THEM FOR THEIR ECONOMIC INJURY 
CAUSED BY THE DISCRIMINATION

The district court found that petitioners engaged 
in unlawful discriminatory employment practices that 
confined the black employees at Albemarle’s paper 
mill to the lower paying, less desirable jobs to which 
they had been assigned on the basis of their race (A. 
480-486, 496). The court was therefore authorized
under Section 706(g) of the Act, .42 U.S.C. (Supp. 
I ll)  2000e-5(g), to enjoin the unlawful practices 
and to “order such affirmative action as may be ap­
propriate, which may include * * * reinstatement or 
hiring of employees, with or without back pay * * 
Although the victims of petitioners’ racially discrim­
inatory practices suffered tangible economic loss as
a result of the discrimination, the district court re­
fused to award them compensatory back pay because 
it found “no evidence of bad faith non-compliance 
Math the Act” and because respondents’ initial fail­
ure specifically to request back pay on behalf of the 
class they represent may have induced petitioners not 
to exercise “unusual zeal in having this court deter­
mine their rights at an earlier date” (A. 498).

The court of appeals held that the district court’s 
denial of back pay for those reasons M7as not a proper



18

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

Petitioners contend (Albemarle Br. 50-61; Halifax 
Br. 21-34) that the court of appeals unduly restricted 
the scope of the district court’s statutory discretion 
in determining whether to award back pay and that 
the district court’s refusal to award back pay in this 
case should have been sustained under “traditional 
equitable principles” (Albemarle Br. 53). Albemarle 
also argues (Br. 61-66) that back pay may not, in 
any event, be awarded to individual members of the 
affected class of injured employees who have not 
themselves filed charges with the Equal Employment 
Opportunity Commission. In our view, petitioners are 
wrong on both counts.

A. The Congressional Policy Reflected In Title (VII 
Requires That Victims Of Employment Discrimina­
tion Be Awarded Back Pay In Compensation For 
Their Economic Loss Unless Special Circumstances 
Would Make Such An Award Unjust To The Em­
ployer

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



10

tended in Section 706(g) to invest the courts with 
full, traditional equity jurisdiction to fashion effec­
tive relief upon a finding of unlawful employment 
practices. Cf. Porter v. Warner Holding Co. 328 
U.S. 39;>, 398, 400; Mitchell v. Robert DeMario 
Jewelry, Inc., 361 U.S. 28S, 291-292.

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

Albemarle thus properly concedes that a district 
court’s discretion under Section 706(g) of the Civil 
Rights Act of 1964 “must be exercised consistently 
with legislative objectives” (Br. 53). It seeks to avoid 
the^ thrust of that principle, however, by arguing 
thao the legislative objective was “to leave resolution 
of complex remedial problems to the traditional dis­
cretionary powers of the federal courts of equity” 
(Br. 54). J

i



I .
I ’

20

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

The large objectives of Title VII are to eliminate- 
discriminatory employment practices and, as far as 
possible, to restore the victims of employment dis­
crimination to the situation they would have been 
in but for the discrimination. “The clear purpose of 
Title VII is to bring an end to the proscribed dis­
criminatory practices and to make whole, in a pecu­
niary fashion, those- who have suffered by it” (Boive 
v. Colgate-Palmolive Co., 416 F. 2d 711, 720 (C.A.
7))-

Albemarle’s contention that “the Congressional em­
phasis was on the prospective elimination of discrim­
inatory practices and not on reparations” (Br. 54) 
rests on its inference from the word “may” in the 
statutory phrase “may include * * * reinstatement 
or hiring of employees, with or without back pay” 
(Section 706(g)). But that inference is unjustified. 
The same word is used in connection with injunctive



21

relief: the court may enjoin the respondent from 
en&a8ing in such unlawful practice” (emphasis add­
ed). Every court of appeals that has considered the 
question has correctly concluded that the Act’s pur­
poses are both to eliminate employment discrimina­
tion and to compensate the victims.10

The “make whole” purpose of Title VII is con­
firmed by the legislative history of the Equal Em­
ployment Opportunity Act of 1972, 86 Stat. 103, 
which reenacted Section 706(g) with changes not 
relevant here. The Seetion-by-Section analysis of the 
1972 Act, presented to the House and the Senate at 
the time the Conference Report on the Act was sub­
mitted to each body (US Cong. Rec. 7166-7169, 7563- 
7567), states with respect to Section 706(g) (id. at 
7168, 7565; emphasis added):

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

. ’ Roscn v- Public Service Electric and Gas Co.,
t/ U vo?  ?’ °,6 ( a A - 3 ) ’ Robinson v- LoriUard Corp., 441 
r ' d Pcttwad v- American Cast Iron Pipe

i t ' t  J*' 2f 211’ 2o2 ('C-A' 5R> Johnson v. Goodyear Tire 
and Rubber Co., 491 F. 2d 1364, 1375 (C.A. 5); United Slates 
v. Georgia Power Co., 474 F. 2d 906, 921 (C.A. 5); Head v. 
Timken Roller Rearing Co., 486 F. 2d 870, 876 (C.A. 6); 
Rowe v. Colgate-Palmolive Co., supra, 416 F. 2d at *720; 
Sprogis V. Ended Air Lines, Inc., 344 F. 2d 1194, 1202 (C A 
7), certiorari denied, 404 U.S. 991.



22

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

Injunctive relief serves the purpose of eliminating 
the discriminatory practices prospectively. An award 
or back pay serves the purpose of making the victims 
financially whole. In view of the Act’s objectives, the 
district court’s duty “to fashion the most complete 
relief possible” (ibid.) ordinarily means that it must 
both enjoin the unlawful practices and award back 
pay to those who have suffered financial injury as 
a consequence of the discrimination. As this Court 
said with respect to back pay awards under Section 
10(c) of the National Labor Relations Act, which 
was the model for Section 703(g) of the Civil Rights 
Act of 19G4, “compensation for the loss of wages” 
is “generally require[d]” to effectuate the policies of 
that Act, because “ [oJuly thus can there be a restora­
tion of the situation, as nearly as possible, to that 
which would have obtained but for the illegal dis­
crimination” (Phelps Dodge Corp. v. National Labor 
Relations Board, 313 U.S. 177, 194). See also Na­
tional Labor Relations Board v. J. II. Rutter-Rex 
Mfg. Co., 396 U.S. 258, 263.

Moreover, com pelling practical considerations sup­
port the view  th at back pay should norm ally be



23

awarded to redress proven injuries. The reasonably 
certain prospect that back pay will be awarded pro­
vides the only substantial economic incentive to en­
courage voluntary compliance with Title VII and 
therefore a swift end to unlawful employment dis­
crimination. Back pay awards “provide the spur or 
catalyst which causes employers and unions to self­
examine and to self-evaluate their employment prac­
tices and to endeavor to eliminate, so far as possible, 
the last vestiges of an unfortunate and ignominious 
page in this country’s history” (United States v. 
N.L. Industries, Inc., 479 F. 2d 354, 379 (C.A. 8 )).

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

I t follows that, in the exercise of their discretion 
to effectuate the Act’s purposes and to encourage 
prompt, voluntary compliance with its terms, the dis­
trict courts should ordinarily award back pay to the 
identifiable victims of unlawful employment discrim­
ination, unless there are substantial countervailing 
considerations that make such an award unnecessary



24

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

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

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



25

racial discrimination to seek judicial relief under 
Title II” (390 U.S. at 402). Since private litiga­
tion is an essential “means of securing broad com­
pliance witb Title II” (id. at 401), and since a 
p amtifl suing as a “private attorney general” can­
not recover damages, awards of counsel fees are im­
portant to “vindicate] a policy that Congress con­
sidered of the highest priority” (id. at 402).
. TJ:ie Sltuat}0n here is analogous. While this case 
involves Title VII rather than Title II and back pay 
awards rather than attorney’s fees, the effect of 
awarding back' pay in the absence of special circum­
stances similarly vindicates the broad congressional 
po icy reflected in the Act and similarly ensures com­
pliance with the law. The “special circumstances” 
standard is no less an appropriate guide for the exer­
cise of discretion in awarding back pay under Title 
VII than it is for the exercise of discretion in award- 
mg counsel fees under Title II.

Wc do not suggest, nor did the court of appeals 
old, that back pay is mechanically compelled where 

violations of the Act are found. Nor do we suggest
. ^  C0Urts of aPPea]s should lightly overturn the 
ini owned exercise of a district court’s discretion. 
Where unlawful employment practices result in eco­
nomic loss to identifiable persons, however, the “make 
whole” purpose of Title VII, and the important policy 
of encouraging voluntary compliance with the law 
should normally call for compensation, in the absence 
of substantial countervailing considerations The dis 
tn c t court must articulate its reasons for denying

f



26

bade pay, and those reasons should be carefully 
scrutinized by the appellate courts to ensure that tho 
district court has fashioned the fullest possible re­
lief consistent with fairness.

As we understand the application of the “special 
circumstances” standard to the question of back pay, 
the Act’s policies of making the victims whole and 
deterring future discrimination require back pay to 
be awarded unless, for substantial reasons that are 
consistent with the purposes of the Act, awarding- 
back pay would be unjust to the employer. One such 
special circumstance, in the context of employment 
practices that discriminate on the basis of sex, might 
be the employer’s reasonable and good-faith reliance 
upon state female “protective” statutes. See LeBlanc 
v. Southern Bell Telephone & Telegraph Co., 4G0 F. 
2d 1228 (C.A. 5), certiorari denied, 409 U.S. 900; 
Manning v. International Union of' Automobile 
Workers, 46G F. 2d 812 (C.A. 6), certiorari denied, 
409 U.S. 108G; Kober v. Westinghouse Electric Corp., 
480 F. 2d 240 (C.A. 3); but see Schaeffer v. San 
Diego Yellow Cabs, Inc., 462 F. 2d 1002 (C.A. 9 ).” 
As we shall now show, no such special circumstance 
justified the district court’s denial of back pay in the 
present case.

31 Under EEOC interpretive guidelines in effect from 1965 
through August 19G9, such state protective laws were con­
sidered consistent with Title VII. Compare 30 Fed. Reg. 14927 
with 34 Fed. Reg. 13368. Reliance on a published EEOC 
guideline is a defense to liability under Title Vll (42 U.S.C. 
2000e-12(b)).



27

R  TL'ri 0 " Sen“  0 f L>atl P“H<> Non-Compliance
t, lifil, n “ nCSS,  » fW a»n liW  Back Pay Claim 
Justifies Denying An Award Of Back Pay To The
Injured Victims Of The Discriminatory Employ­
ment I radices In This Case

Since the purpose of a back pay award is to com­
pensate the injured persons and not to punish the 
employer, the absence of bad faith should not or­
dinarily justify denying back pay. As between the 
innocent victim of an unlawful employment practice 
and the employer or union that has violated the law 
the economic loss should normally fall on the wrong­
doer. Cf. National Labor Relations Board v. J. H. 
Rutter-Rex Mfg. Co., supra, 39G U.S. at 264-265. 
Accordingly, the courts of appeals have uniformly 
rejected general claims of good faith as a reason to 
deny back pay under Title VJL’-

lo  make back pay awards dependent upon proof 
of malice or deliberate recalcitrance would place an 
unwarranted obstacle in the path of those seeking 
compensation for economic injury resulting from un- 
lawful employment discrimination. As in Newman

494 F ^ d i t  A^ erT n C('St Iron Pipe Co-> ™Pra,
480 F 2 ft  R77- e V' Tr R°Uer Bearing Co-> ™Pra,o ■ f  at 877’ SProgts V. United Airlines, Inc., supra, 444
1309 iooT T A  I  'T  l  U'isconsin S led  Works, 502 F. 2d 
loOJ, fool (C.A. 7); Baxter v. Savannah Sugar Rcfuiinn
Co,p.. 495 F. 2d 427, 442-443 (C.A. 5); R oM n sZ Z  S S  
Cm-p 444 F  2d at 804; /(„ » «  v.
and Electric Co., supra, 477 F. 2d at 95-90; v Grey­
hound Bus Co., 500 F. 2d 1372, 1378-1379 (C A '___ J  ■
Johnson V. Goodyear Tire & Rubber Co., supra 491 F 2d at

V ‘ A 7 - L ‘ ^



28

v. Piggie Park Enterprises, Inc., supra, where the 
Court 1 ejected a similar “bad faith” test for the 
award of attorney’s fees, requiring a showing of bad 
motive would not adequately effectuate the purpose of 
the Act.

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

This Court stated in Griggs v. Duke Power Co., 
401 U.S. 424, 432, that “good intent or absence of 
discriminatory intent does not redeem” an other­
wise unlawful employment practice. For similar rea­
sons, good intent should not, at least in the absence 
of extraordinary circumstances not present here, im­
munize an employer or a labor union from the ob­
ligation to compensate the innocent victims of em­
ployment discrimination.

Nor should the plaintiffs’ initial disclaimer of an 
intention to seek back pay on behalf of members of 
the class not before the court justify denying an 
award in this case. Since petitioners knew of the 
back pay claim for all members of the class at least 
as early as June 4, 1S70 (A. 29), they were on full 
notice of the claim more than a year prior to trial. 
The district court itself stated in an opinion filed 10



29

months prior to trial that “ (t]he possibility of an 
awaicl of money damages upon a determination of 
liability is still with us” despite the plaintiffs’ earlier 
disclaimer (A. 38). The court reiterated several 
weeks before trial that the claim for back pay would 
be considered on its merits and that “damages may be 
recovered if the plaintiffs prevail” (A. 51). This ad­
vance notice gave petitioners ample opportunity to 
address the matter completely in the district court.

Moreover, as the court of appeals correctly held, 
the defenses available to petitioners with respect to 
the back pay issue were identical to their defenses 
with respect toi njunctive relief. Petitioners were thus 
no less able to defend against the back pay claim 
than they would have been had it been asserted at 
the time the complaint was filed. The district court’s 
speculation that petitioners “might have exercised
unusual zeal” in expediting the trial if they had 
known that back pay was in issue (A. 498) is con- 
tradicted by the absence of any indication that they 
exercised any such “unusual zeal” after learning- 
that the plaintiffs were seeking back pay. Albemarle
makes no l e-presentation in its brief that it would 
have sought an earlier trial.

Albemarle contends that “ [djiscovery relating to 
individual claims was clearly rendered much more 
difficult, if not impossible, by the passage of time” 
(A. 58). But the record reflects that the district 
court ordered the plaintiffs to answer Albemarle’s 
interrogatories concerning individual back pay claims 
•and to submit “a statement as to each member of the



30

class as to how he was personally and specifically 
discriminated against; and the amount of damages 
being claimed” (A. 46). Albemarle does not indi­
cate why those discovery procedures were inade­
quate.1"

In the absence of substantial prejudice to pe­
titioners, the delay in claiming back pay should not 
alter the district court's duty “to fashion the most 
complete relief possible” (Section-by-Section Analysis 
of 1972 Act, supra, 118 Cong. Rec. 7168, 7565). 
Rule 54(c) of the Federal Rules of Civil Procedure 
provides that the district court “shall grant the relief 
to which the party in whose favor it is rendered is 
entitled, even if the party has not demanded such 
relief in his pleadings.” Accordingly, other courts of 
appeals have correctly held that Title VII back pay 
claims asserted even after trial are entitled to full 
adjudication in the absence of prejudice. See Rosen 
v. Public Service Gas & Electric Co., supra, 409 F. 
2d at 780, n. 20; Robinson v. Lorillard Corp., supra, 
444 F. 2d 802-802; United States v. Hayes Interna­
tional Corp., 453 F. 2d 113, 121 (C.A. 5 ); see also 
Sprogis v. United\ Air Lines, Inc., supra, 444 F. 2d 
at 1202.

13 Nor should back pay be foreclosed because Albemarle’s 
assets were sold by Ethyl Corporation to Hoemer Waldorf 
Corporation in 19G8. If Hoerner Waldorf truly acted “in 
the belief that in such suit plaintiffs were not seeking dam­
ages” (Albemarle Br. 58), that consideration goes only to 
the allocation of liability as among the various defendants.



31

C. Back Pay Claims Should Be Determined For All 
Class Members Wh° Have Sustained Economic Loss, 

%  No ™ ed Individual Charges
ith The Equal Employment Opportunity Com­

mission

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

tion 706, 42 U.S.C. 2000e-5) requiring the filing of 
charges with EEOC is to provide notice to the charged 
party of the alleged violation of the Act and to bring 
to bear the voluntary conciliatory functions of EEOC. 
The filing of a single charge alleging unlawful em­
ployment practices gives the employer notice of the 
complaint and an opportunity to correct the unlaw­
ful practices. It would serve no useful purpose to 
require scores of substantially identical claims to be 
processed through EEOC when a single charge is 
sufficient to satisfy the requirements of Title VII. 
boive v. Colgate-Palmolive Co., supra, 446 F. 2d at 
720; Miller v. International Paper Co., supra, 408 
P. 2d at 285; see also Franks v. Bowman Transporta­
tion Co., 4,95 F. 2d 398, 421-422 (C.A. 5), certiorari 
granted on other issues, No. 74-728; Head v. Timken 
■ oller fa r in g  Co., supra, 486 F. 2d at 876.



32

Just as with injunctive relief, once it has been de­
termined that the defendant has engaged in unlawful 
employment practices that have caused the class mem­
bers financial loss, the defendant’s liability for back 
pay arises from conduct applicable to all affected 
members of the class. That the particular way in 
which that common conduct has affected individual 
class members may differ in degree, so that the 
amount of back pay owing to each affected class 
member may vary, does not change the essential class 
characteristices of the discriminatory practices. 
“Once classwide discrimination has been demon­
strated to result in disproportional earnings, a class­
wide decision that back pay is appropriate can be 
discerned without deciding which members of the 
class are entitled to what amounts” (Pettway v. 
American Cast Iron Pipe Co., supra, 414 F. 2d at 
257). Thereafter, the district court14 can proceed 
to determine how much back pay is owed to which 
class members.15

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

14 In appropriate cases, the court may refer the matter to a 
special master. See Fed. R. Civ. P. 53. The district court in 
the present case stated in a pretrial order that “if [back pay] 
claims become too numerous or complicated, this phase of the 
case may be referred to a special master” (A. 51). The record 
reflects that approximately 80 persons filed claims for back 
pay in the district court (A. 70-85, 116-117).

10 For a comprehensive discussion of methods for deter­
mining back pay awards, see Pettway v. American Cast Iron 
Pipe Co., supra, 494 F. 2d at 250-63, and Johnson v. Goodyear 
Tire & Rubber Co., supra-, 491 F. 2d at 1374-1375, 1379-1380.



33

poit unity Act of 1972 shows that Congress considered 
and rejected a provision, originally included in the 
bill that passed the House, that would have fore­
closed an award of back pay to any members of a 
class who had not filed an individual charge with 
EEOC. The report accompanying the Senate bill, 
which omitted the provision contained in the House 
bill, stated that ‘any restrictions on j class] actions 
would greatly undermine the effectiveness of Title 
VH” (S. Rep. No. 415, 92d Cong., 1st Sess., p. 27). 
The Section-by-Secticn Analysis of the bill that 
emerged from the Conference Committee and that 
was passed by both houses stated: “ [Tjhe leading- 
cases in this area have recognized that Title VII 
claims are necessarily class complaints and that, ac- 
cordingly, it is not necessary that each individual en­
titled to relief under the claim be named in the or­
iginal charge or in the claim for relief. A provision 
limiting class actions was contained in the House Bill 
and specifically rejected by the Conference Commit­
tee” (118 Cong. Rec. 71GS, 7565).

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



34

II

ALBEMARLE’S TESTING PROGRAM IS UNLAW­
FUL BECAUSE ITS TESTS OPERATE TO EX­
CLUDE BLACKS AND HAVE NOT BEEN SHOWN 
TO BEAR A DEMONSTRABLE RELATIONSHIP TO 
SUCCESSFUL PERFORMANCE OF THE JOBS FOR 
WHICH THEY ARE USED

In Griggs v. Duke Power Co., 401 U.S. 424, this 
Court held that Title VII prohibits the use of tests 
or other employee selection procedures that operate 
to exclude members of minority groups, unless the 
employer demonstrates that the procedures are sub­
stantially related to job performance— i.e., that they 
reliably measure capability for, or accurately predict 
successful performance of, the jobs for which they are 
used. The district court in the present case ruled 
that Albemarle carried its burden of demonstrating 
that its tests are job-related. The court of appeals, 
however, relying on the principles established by this 
Court’s decision in Griggs and looking to EEOC’s 
Guidelines on Employee Selection Procedures (29
C.F.R. Part 1C07) for guidance in determining the 
adequacy of Albemarle’s proof, held that the com­
pany’s test validation study was methodologically de­
ficient and did not, in any event, -demonstrate that the 
tests provide a reasonable measure of the applicant’s 
ability to perform successfully the jobs for which the 
tests are used. That holding is correct.



35

A. Albemarle's Tests Have A Disproportionate Adverse 
Impact On Blacks

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

Although the district court did not specifically state 
that Albemarle’s tests disproportionately exclude 
blacks, it did find that the higher paying lines of pro­
gression “remain essentially segregated because of 
the inability of black employees to meet the educa­
tional and testing requirements” (A. 496). More­
over, the adverse racial impact of the tests was an 
implicit premise of the court’s lengthy discussion con­
cerning the job-relatedness of those tests, in which 
it concluded that “ [t]he defendants have carried the 
burden of proof” by demonstrating that the tests are 
job-related (A. 497). The court of appeals was more 
explicit. It stated that “ [tjhe plaintiffs made a suffi­
cient showing below that Albemarle’s testing proce­
dures have a racial impact” (A. 515).

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



3G

Court. Lawn v. United States, 355 U.S. 339, 362-363, 
n. 16. ______ ____

In any event, we believe,/ror the reasons stated by 
respondents (Br. 19-21), that the court of appeals 
was justified in concluding that the plaintiffs carried 
their threshold burden of showing a disproportionate 
racial impact.

B. The Company’s Testing Program Was Not Shown 
To Be Job-Related

Albemarle attempted to meet its burden of showing 
that its tests are related to the jobs for which they 
are used by submitting the results of a test validation 
study conducted in 1971 by Dr. Joseph Tiffin (A. 
431-438). The court of appeals correctly concluded 
that the study failed to demonstrate that Albemarle’s 
tests “have a manifest relationship to the employ­
ment in question” (Griggs v. Duke Power Co., supra, 
401 U.S. at 32).

In reaching that conclusion, the court of appeals 
drew upon the testing expertise reflected in several 
sections of EEOC’s Guidelines on Employee Selection 
Procedures, 29 C.F.R. Part 1607. One of those sec­
tions emphasizes the importance of a careful job 
analysis to identify “ [t]he work behaviors or other 
criteria of employee adequacy which the test is in­
tended to predict” (29 C.F.R. 1607.5(b) (3 )). An­
other highlights the danger of relying upon the “sub­
jective evaluations” of supervisors in measuring the 
job performance of the subjects of a validation study, 
because of “the possibility of bias inherent in” such



s?

evaluations (29 C.P.R. 1607.5(b) (4)). A third sec- 
I°n States that the validity of a test with respect to 

a pai acuiar job may be demonstrated by evidence 
of validity with respect to a related job, if “no sig- 
mhcant differences exist" between the iobs (29 
C.F.R. 1007.4(c) (2 )). ' '

The court of appeals held that Albemarle’s valida- 
lon procedure was deficient because the expert who 

conducted the study performed no job analysis but 
relied exclusively upon the “possibly subjective ra t - 
mg of supervisors who were given a vague standard 
by w llch to -lutJge job performances” (A 517) t?p

f p v ,  nr -f 7 t • . .  '  *

We
n  ~  -------------------------A i

ferring to the Guidelines, the court stated- 
«gree that seme form of job analysis resulting in 
specihe and objective criteria for supervisory rat-

S y ”S( I ^ ) . t0 " P r°Per C0RClUTent Validati°n
Tno court also Held that, "[ejven if the validation 

procedure had been proper, it was error to approve 
he testing procedures for lines of progression where 

theie had been no validation study” (ib id ) The 
court recognized that “a test need not always be vali­
dated for each job for which it is required" 
but it held that the absence of any job analyses for 
. !l,' f  of progression involved in the study and those
or which the tests arc required “prevents concluding

that no significant differences exist in the jobs in 
question” (A. 519).

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



38

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

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

3. The court, of appeals correctly looked to the 
EEOC Guidelines for guidance in assessing the 
adequacy of Albemarle's validation study

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

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



39

aie entitled as an “interpretation of the Act * * * 
by the enforcing agency” (A. 516). See Griggs v. 
Duke Power Co., supra, 401 U.S. at 433-434.

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

There are several accessible sources of such exper­
tise in the field of employee test validation. The 
American Psychological Association’s Standards for 
Educational ■ and Psychological Tests and Manuals 
(hereinafter APA Standards) are generally regarded 
as stating in a comprehensive fashion the accepted 
standards of the psychological profession.16 The gov­
ernment agencies with responsibilities in the area of 
equal employment opportunities—including EEOC, 
the Department of Labor, and the Civil Service Com-

16 edition of the APA Standards is part of the
record in this case and is set forth at A. 415-426 The Stand- 
ards were revised in 1974, but the revisions do not substan- 
, ally a”ect the Provisions relating to the matters at issue 
here. Albemarle’s expert, Dr. Tiffin, testified that the Stand­
ards are ‘a classic” in the psychological profession, that he 
generally agrees with the principles for validating tests that 
are contained m the Standards, and that he attempted in his 
f r yo i ° / 0l!°W those princ,'PIes ‘Taj hundred percent” (A.



mission—publish guidelines or regulations, dealing in 
a more concise fashion with test validation.17

These standards, guidelines, and regulations are not 
in every respect identical, but each can provide use­
ful guidance to a court in evaluating an employer’s 
test validation study. In a case such as the present 
one, involving anremployer subject to the provisions 
of Title VII and within the scope of EEOC’s enforce­
ment responsibilities, it is particularly appropriate 
for the court to look to the EEOC Guidelines for “a 
helpful summary of professional testing standards” 
{Vulcan Society v. Civil Service Commission, 490 
F. 2d 387, 394, n. 8 (C.A. 2 )), since “the guidelines 
undeniably provide a valid framework for determin­
ing whether a validation study manifests that a parti­
cular test predicts reasonable job suitability” ( United 
States v. Georgia Power Co., 474 F. 2d 90G, 913 
(C.A. 5)).

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

17 The former Labor Department order governing the vali­
dation of employment tests by contractors and subcontractors 
subject to the provisions of Executive Order 11246 appears 
at A. 321-328. The current version, which is substantially 
the same as the EEOC Guidelines, appears at 41 C.F.R. Part 
00-3. The Civil Service Commission’s regulations governing- 
test validation appear at 37 Fed. Reg. 21557-21559.



41

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

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

2. Albemarle’s validation study was not conducted 
in accordance with professionally accepted 
standards

i The tests used by Albemarle—the Revised Beta 
Examination and the Wonderlic A and B—do not 
purport to test the specific skills that are required 
to perform the jobs in question. They measure only 
genei a! aptitude and intelligence. Consequent!v, Title



42

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

Albemarle’s study, however, was not conducted in 
accordance with professionally accepted validation 
procedures. A job analysis—the breaking down of 
a job into its basic elements—is, under generally 
recognized professional standards, an essential first 
step in a validation study (A. 205, 369-371). See 
the EEOC Guidelines, 29 C.F.R. 1607.4(c), 1607.5
(b) (3) (A. 310, 312-313); APA Standards fl C4 (A. 
419); Department of Labor Order, 41 C.F.R. 60-3.6 
(a ) (3 ) ;  Civil Service Commission Regulations, S3- 
1 (a)(3 ) (37 Fed. Reg. 21557). Albemarle’s expert
conducted no job analysis.

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

1S The Wonderlic tests used here and in Griggs (see 401 U.S. 
at 430, n. G) have been the subject of numerous challenges 
under Title VII. See, e.g., Rogers V. International Pager Co. 
9 [CCH] EPD ‘[ 9SG5 (C.A. 8); Young V. Edgecombe Steel 
Co., 499 F . 2d 97, 98, 100 (C.A. 4 ) ; Franks V. Bowman Trans­
portation Co., supra, 495 F. 2d at 412; Dahon V. Goodyear 
Tire & Rubber Co., 494 F. 2d 817, 818-819 (C.A. 5); Johnson 
V. Goodyear Tire <0 Rubber Co., s u p r a , 491 F. 2d at 1872.



43

!



44

The absence of a job analysis led to another defect. 
The study was conducted not. for individual jobs but 
for groups of jobs adjacent to each other on a line 
of progression (A. 166, 174). For example, Dr. 
Tiffin’s first job group included the jobs of caustic 
operator and lime kiln operator (A. 432). Since 
there was no job analysis for either job, however, 
there was no basis for determining whether the two 
jobs involve similar tasks requiring similar skills, 
and therefore no foundation for concluding that they 
could properly be validated as a group (see A. 205).

This defect was compounded by the rating method. 
Supervisors were instructed to rate the employees 
in each job group against one another—that, is, to 
rank them in order (A. 187). Thus, a supervisor 
was required to determine whether a caustic operator 
was superior to a lime kiln operator, though there 
was no analysis indicating that the two jobs were 
substantially the same.

The study was deficient in other respects as well. 
The EEOC Guidelines, 29 C.F.E. 1607.5(b)(2) (A. 
312), like the APA Standards, C4.5 (A. 421), 
deem it essential that tests be administered under 
controlled and standardized conditions and that 
proper safeguards be taken to assure that test scores 
do not contaminate the job performance ratings— 
i.e., that raters are not made aware of the test 
scores of the employees they are rating. Dr. Tiffin, 
however, did not administer the tests himself and 
did not know who did administer them (A. 176). 
He took no precautions to avoid contamination and



45

did not know whether the supervisors who rated the 
employees were or were not aware of the test scores 
U - 177). Dr. Barrett testified that it was “extra­
ordinarily bad practice” for the person conducting 
the validation study to leave security measures to

‘>0G) <<Wll° liaVe 311 interest in tile outcome” (A.

Moreover, the job groups used in the validation 
study were selected from the middle and higher cate­
gories in the lines of progression studied (A 1G7 
178), although successful applicants for employment 
would be performing entry-level work in the lower 
job categories for several years. I)r. Tiffin sought to 
justify the use of the upper-level categories on the 
ground that “those are the jobs to which these men
will go if they stay in the progression line long 
enough” (A. 167).

But- tnat standard—which would justify the test­
ing of beginning factory workers by examinations 
that measure the ability to perform the job of senior 
foreman—does not comport with the standards of the 
piofession. The EEOC Guidelines, 29 C.E.R. 1607 4 
(c) ( l )  (A. olO), state that it is appropriate to 
valuate employees for higher job levels only if “new 
employees will probably, within a reasonable period 
of time and in a great majority of cases, progress 
to a higher level * * *.” The Civil Service Commis­
sion’s regulations, fl S3-5, 37 Fed. Reg. 21558, are 
to the same effect. While the court of appeals de­
clined to decide whether this defect was significant 
because it believed that here was “insufficient evi-



46

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

3. The study does not, in any event, demonstrate 
that the tests arc related to the johs for which 
they are used

Even if Dr. Tiffin had followed professionally ac­
cepted procedures in conducting the validation study, 
the results of the study would not validate the tests 
for the use to which they are put by Albemarle. 
The district court found (A. 487), on the basis of a 
stipulation (A. 100), that the Beta and Wonderlic 
tests are administered to applicants for 13 lines of 
progression in eight departments.’9 Dr. Tiffin’s study, 
however, covered only eight lines of progression in 
five departments (A. 514).

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

13 Albemarle now states (Br. 13, 44) that the tests are in 
fact administered to applicants for eight lines of progres­
sion in four departments. If so, that can be shown in the 
district court on remand. We address our comments to the 
facts currently of record.



47

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

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

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



48

But this Court held in Griggs that a test which 
operates to exclude blacks must be “shown to bear a 
demonstrable relationship to successful performance 
of the jobs for which it [is] used” (401 U.S. at 431). 
Qualifying all applicants for every line of progres­
sion may give Albemarle greater “flexibility.” But 
“Congress has forbidden * * * giving these devices 
and mechanisms controlling force unless they are 
demonstrably a reasonable measure of job perform­
ance” (id. at 436). Business “flexibility” is not “busi­
ness necessity” (id. 431).

Although Albemarle asserts that its testing pro­
gram is necessary “ [t]o preserve the safe and effi­
cient operation of its pulp mill” (Br. 46), the court 
of appeals correctly found that the record does not 
■support that assertion. “Albemarle has not shown 
that hiring all employees into a pool is necessary" to 
the safe and efficient operation of its business, nor 
has it shown that hiring employees for specific lines 
of progression is not an acceptable alternative” (A. 
520).

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