Wards Cove Packing Company, Inc. v. Atonio Brief Amici Curiae

    No. 87-1387

I n  the

B u p tm t (Enurt of tip llnttrii States
October Term, 1988

W ards Cove P acking Company, I nc ., and  
Castle & Cooke, I nc .,

Petitioners,
v.

F rank A tonio, et at.,
Respondents.

O N  W R IT  O F CER TIO R A R I TO T H E  U N IT E D  STA TES 

CO U RT O F A PPEA L S FOR T H E  N I N T H  C IR C U IT

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., THE MEXICAN AMERICAN 
LEGAL DEFENSE AND EDUCATIONAL FUND, AND 

THE PUERTO RICAN LEGAL DEFENSE AND 
EDUCATION FUND AS AMICI CURIAE 

SUPPORTING RESPONDENTS

A nto n ia  H ernandez  
E . R ichard  L arson 
J ose R oberto J uarez, J r .

Mexican American Legal 
Defense and Educational 
Fund

634 South Spring Street 
11th Floor
Los Angeles, CA 90014 
(213) 629-2512

R u b en  F ranco 
K e n n e t h  K im er lin g

Puerto Rican Legal Defense 
and Education Fund 

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-3360

Counsel for Amici Curiae

•Counsel of Record

J u liu s  L eV o n n e  C ham bers 
C harles  S t e p h e n  R alston 
R onald L. E llis  

NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
New York, N.Y. 10013
(212) 219-1900

B ill  L a n n  L ee*
P atrick  O. P atterson , J r . 
T heodore M. S h a w  

NAACP Legal Defense and 
Educational Fund, Inc. 

634 South Spring Street 
Suite 800
Los Angeles, CA 90014
(213) 624-2405



QUESTIONS PRESENTED

1. Whether, on the facts of this 
case, the court of appeals correctly held 
that the evidence established a prima 
facie case of disparate impact.

2. Whether this Court should 
overrule the evidentiary standards for 
disparate impact cases articulated in 
Griggs v. Duke Power Co. and its progeny.

3. Whether, on the facts of this 
case, the court of appeals correctly 
considered the cumulative effect of a 
range of employment practices as 
demonstrating the consequences of 
discriminatory practices that had already 
been independently established.

i



TABLE OF CONTENTS
Page

Interest of Amici Curiae ........... 1
Summary of Argument ................  2
ARGUMENT

I. TITLE VII, BY ITS TERMS,
PROHIBITS DISPARATE 
IMPACT DISCRIMINATION 
AS WELL AS DISPARATE
TREATMENT DISCRIMINATION . . . .  9

II. THE LEGISLATIVE HISTORY OF 
TITLE VII, THE 1972 
AMENDMENTS, AND THE UNIFORM 
ADMINISTRATIVE INTERPRETATION 
OF THE STATUTE DEMONSTRATE 
THAT THE EVIDENTIARY STANDARDS 
ARTICULATED IN GRIGGS AND ITS 
PROGENY ARE CONSISTENT WITH 
THE INTENT OF CONGRESS........ 13
A. In Enacting §703(a)(2)

In 1964, Congress 
Specifically Intended To 
Prohibit "Institutionalized" 
Disparate Impact Discrim­
ination Not Motivated By Any 
Discriminatory Purpose . . .  13a

B. In Amending Title VII In 1972, 
Congress Ratified 
The §703 (a) (2) Evidentiary 
Standards Articulated In 
Griggs 20

C. The Evidentiary Standards Of 
Griggs And Its Progeny 
Have Been Uniformly Confirmed 
By Administrative 
Interpretations Of 
§703 (a) ( 2 ) ............... 26

III. THE SEPARATE EVIDENTIARY ANALYSES 
DEVELOPED BY THE COURT REFLECT THE 
DISTINCT NATURE OF THE 
DISCRIMINATORY PRACTICES CONGRESS 
INTENDED TO PROSCRIBE IN 
§§703(a)(l) AND 703(a)(2) . . .  29
A. The Court Has Articulated

Evidentiary Standards 
For Analyzing Disparate 
Treatment Claims Under 
Section 703(a)(1) . . . . 30
1• Individual Disparate

Treatment . . . .  31
2. Direct Evidence of 

Intentional
Discrimination......... 33

3. Pattern or Practice of 
Intentional
Discrimination . . . .  35

B. The Court Has Articulated 
Separate Evidentiary 
Standards For Analyzing 
Disparate Impact Claims Under 
Section 703(a)(2) ........  36

c- The Griggs Disparate Impact 
Analysis Is Analogous To The

iii



Teamsters And Thurston
Disparate Treatment
A n a l y s e s ............. 44

IV. OVERRULING THE EVIDENTIARY 
STANDARDS OF GRIGGS AND ITS 
PROGENY WOULD BE 
CONTRARY TO THE REMEDIAL
PURPOSE OF TITLE VII........... 47

V. THE FIRST AND THIRD QUESTIONS 
PRESENTED IN THE PETITION
FOR CERTIORARI ARE NOT PRESENTED 
BY THE FACTS OF THIS CASE . . . .54

CONCLUSION.......................... 62

Table of Authorities
Page

Cases:
Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) . . 21, 27, 38,
.................  41, 60

Colby v. J.C. Penney Co.,
811 F.2d 1119 (7th Cir. 1987) . ll

Connecticut v. Teal, 457 U.S. 440 . 6,
............... 20, 21, 26, 38, 59

Dothard v. Rawlinson, 433 U.S. 321
U 9 7 7 ) ...................  37, 41

Espinoza v. Farah Mfg. Co., 414 U.S.
86 (1973) ...................  27

Firefighters Inst, for Racial
Eguality v. City of St. Louis,
616 F.2d 350 (8th Cir. 1980), 
cert, denied. 452 U.S. 938 (1981) .................... ...

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) . . . .  21, 35

Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978) . . . 32, 43

General Electric Co. v. Gilbert,
429 U.S. 141 (1976) ........... 27

Green v. USX Corp., 843 F.2d 1511
(3rd Cir. 19 8 8 ) ............. 59

v



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

Guardians Association v. Civil 
Service Commission,
463 U.S. 582 (1983) ........... 42

Hazelwood School District v. United
States, 433 U.S. 299 (1977) . . 36

International Brotherhood of
Teamsters v. United States,
431 U.S. 324 (1977) . . . .  passim

Johnson v. Railway Express Agency,
421 U.S. 454 (1975)............ 21

Local 28, Sheet Metal Workers v.
EEOC, 478 U.S.421 (1986) 25, 26, 27

Local 93, Firefighters v. City of
Cleveland, 478 U.S. 501 (1986). .27

Los Angeles Department of Water
& Power v. Manhart, 435 U.S.
702 (1978) .............11, 34, 35

Lowe v. City of Monrovia, 775 F.2d 998
(9th Cir. 1 9 8 5 ) ................. 38

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

Nashville Gas Co. v. Satty, 434 U.S.
136 (1977)........  11, 12, 13, 39

New York City Transit Authority v.
Beazer, 440 U.S. 568 (1979) . . 41

Phillips v. Martin Marietta Corp.,
400 U.S. 542 (1971) . . . .  34, 35

vi

59
Segar v. Smith, 738 F.2d 1249

(D.C. Cir. 1984) .............
Texas Department of Community

Affairs v. Burdine 450 U S 
248, n. 8 (1981) . . . 31; 32, 33,
.......................  40, 43, 50

Tillery v. Pacific Tel. Co., 34
FEP Cases 54 (N.D. Cal. 1982) . 53

Trans World Airlines v. Thurston,
469 U.S. Ill (1985) . . .  8, 31, 33,
.....................  34, 44, 45, 4 6 '

Wade v. Mississippi Coop. Extension 
Serv., 615 F. Supp. 1574 (N.D.
Miss. 1985)............... 53

Wambheim v. J.c. Penney Co., 705
F.2d 1492 (9th Cir. 1983), cert, 
denied, 467 U.S. 1255 (1984). ." n

Watson v. Fort Worth Bank and Trust, 108
S. Ct. 2777 (1988) . . . .  3, 5, 32, 38,

........................... 41,48
Wilson v. Michigan Bell Tel. Co.,

550 F. Supp. 1296 (E.D. Mich.
1982> ........................ 53

Legislative Materials:
H.R. 405 ........... * * • • • • • . 15
H.R. Rep. No. 88-570 . . ,
H.R. Rep. No. 92-238 ........  22, 23, 24
88 Cong., 1st Sess. 144-45 (1963) . . 19
110 Cong. Rec. 6307 (1964)..............

vii



117 Cong. Rec. 32108 (1971).......... 51
117 Cong. Rec. 38402 (1971).......... 51
118 Cong. Rec. 697 (1972) . . . .  22, 25
118 Cong. Rec. 7166 (1972)..........  25
S. Rep. No. 88-867 (1964)............. 17
S. Rep. No. 92-415 ........ .. 22, 23
Statutes:
42 U.S.C. § 2000e-2 (a) ( 1 ) ........ passim
42 U.S.C. § 2000e-2(a)(2) . . . .  passim
Administrative Materials:
29 C.F.R. § 1607 (1986)............... 28
29 C.F.R. § 1607.3 (1970) . . . .  28, 29
35 Fed. Reg. 12333 (1970)   28
35 Fed. Reg. 12336 (29 C.F.R.

§ 1607.11)........................28
43 Fed. Reg. (1978)  28
Other Authorities:
B. Schlei & P. Grossman, Employment 

Discrimination Law. 202 (2d ed.
1 9 8 3 ) .........................  52

Rose, Subjective Employment Practices: 
Does the Discriminatory Impact 
Analysis Apply?. 25 San Diego 
L.R. 63 (1988)..........  14, 52

viii

No. 87-1387

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1988

WARDS COVE PACKING COMPANY, INC., and 
CASTLE & COOKE, INC. ,

Petitioners.
v.

FRANK ATONIO, et al., 
Respondents.

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

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., THE MEXICAN 

AMERICAN LEGAL DEFENSE AND EDUCATIONAL 
FUND, AND THE PUERTO RICAN LEGAL DEFENSE 

AND EDUCATION FUND AS AMICI CURIAE 
SUPPORTING RESPONDENTS

INTEREST OF AMICI CURIAE
Amicus NAACP Legal Defense and 

Educational Fund, Inc., is a national 
civil rights legal organization that has 
litigated many cases on behalf of black



2
persons seeking vindication of their civil 
rights, including Griggs v. Duke Power 
Co., 401 U.S. 424 (1971). Amicus Mexican
American Legal Defense and Educational 
Fund and amicus Puerto Rican Legal Defense 
and Education Fund are national civil 
rights organizations that have brought 
various lawsuits on behalf of Latino 
persons subject to discrimination in 
employment, education, voting rights and 
other areas of public life. Letters from 
the parties consenting to the filing of 
this brief have been filed with the Court.

SUMMARY OF ARGUMENT 
Amici, supporting respondents, 

principally address the important issue 
raised by the second question presented in 
the petition for certiorari —  viz., the 
continued vitality of Griggs v. Duke Power
Co.

3
In Watson v. Fort Worth Bank and 

Trust, 108 S. Ct. 2777, 2785 (1988) (part
IIA) , Justice O'Connor, writing for the 
Court and citing Griggs, reiterated that 
Title VII proscribes not only intentional, 
disparate treatment discrimination but 
also disparate impact discrimination: 
"This Court has repeatedly reaffirmed the 
principle that some facially neutral 
employment practices may violate Title VII 
even in the absence of a demonstrated 
discriminatory intent." The Watson 
opinion also observed that "the necessary 
premise of the disparate impact approach 
is that some employment practices, adopted 
without a deliberately discriminatory 
motive, may in operation be functionally 
equivalent to intentional discrimination." 
Id. (emphasis added).

The petitioners in this case concede 
that, "[u]nder a strict reading of



G r i g g s ." once the plaintiff has 
established a prima facie case of 
disparate impact the employer "must come 
forward with what amounts to an 
a f f i r m a t i v e  defense of business 
necessity." Brief for Petitioners at 42 
(citation and footnote omitted). The 
Solicitor General, however, distorts the 
language of Watson to argue that Griggs' 
burden of proof standards are "[b]ased on 
the assumption that certain other 
exclusionary practices are 'functionally 
e q u i v a l e n t  t o  i n t e n t i o n a l  

discrimination.'" Brief for the United 
States as Amicus Curiae at 13. The 
Solicitor General then goes on to argue 
that, once the plaintiff has established a 
prima facie case of disparate impact 
discrimination, the employer's burden of 
demonstrating business necessity should be 
revised to conform to the employer's

4

>

minimal burden of production imposed under 
McDonnell Douglas Coro, v. Green. 411 U.S. 
792 (1973), in individual disparate
treatment cases. Id. at 27 ("Nothing 
about disparate impact cases justifies a 
departure from the model for litigating 
disparate treatment cases"). Compare 
Watson, 108 S. Ct. at 2787-2791 (parts II 
C&D) (O'Connor, J .).1

The Solicitor General's argument 
conflicts with the language of the 
statute, its legislative history and 
c o n t e m p o r a n e o u s  a d m i n i s t r a t i v e  
interpretations, the prior decisions of

5

In Watson, the Solicitor General 
argued that subjective employment 
practices could only be analyzed under an 
intentional discrimination standard. See 
108 S. Ct. at 2786. The Court rejected 
the argument. in the present case, the 
Solicitor General seeks to accomplish 
indirectly -- through the subterfuge of 
modifying disparate impact standards of 
proof to conform to individual disparate 
treatment standards —  what the Court directly rejected in Watson.



6
this Court, and the remedial purpose of 
Title VII.

1. "A disparate impact claim
reflects the language of §703(a)(2)," 
Connecticut v. Teal. 457 U.S. 440, 448
(1982), which proscribes practices that 
"deprive or tend to deprive any individual 
of employment opportunities." 42 U.S.C. 
§2000e-2(a) (2) . The individual disparate 
treatment analysis, on the other hand, is 
one of several evidentiary models for 
analyzing violations of §703 (a)(1), 42
U.S.C. §2000e-2(a) (1) .

2. The legislative history of Title
VII's enactment in 1964, and of its 
amendment in 1972, both undermine the 
Solicitor General's argument. In 1964, 
Congress made unmistakably clear that it 
intended to prohibit both intentional 
discrimination and disparate impact 
discrimination. Purposeful, overt

7
discrimination was not regarded as a 
paradigm; Congress expressly declared that 
Title VII reached beyond overt practices. 
In 1972, Congress specifically ratified 
Griggs and its evidentiary standards for 
disparate impact cases. Contemporaneous 
administrative interpretations of Title 
VII, including those of the Department of 
Justice and the EEOC, have uniformly 
applied the Griggs disparate impact 
analysis to all selection procedures with 
an adverse impact, and they have 
separately prohibited disparate treatment.

3.__________ Based on the language and 
legislative history of §703 (a), the Court 
has developed separate evidentiary 
analyses that recognize the basic 
differences between disparate treatment 
and disparate impact discrimination. The 
individual disparate treatment analysis of 
McDonnell__Douglas serves different ends



8
than those served by the disparate impact 
analysis of Griggs; the stages of the two 
evidentiary models are specific to each 
analysis and are in no way comparable. 
The more appropriate analogy for the 
employer's burden in a disparate impact 
case —  if an analogy is necessary—  

would be the employer's burden in class- 
based disparate treatment cases, such as 
International Brotherhood of Teamsters v. 
United States. 431 U.S. 324 (1977), and 
Trans World Airlines v. Thurston. 469 U.S. 
Ill (1985).

4. The Solicitor General's theory, 
if accepted, would frustrate the remedial 
purpose of Title VII by overruling Griggs 
and effectively repealing §703(a)(2)'s 
prohibition of arbitrary practices that 
have the effect of depriving minorities or 
women of employment opportunities.

9
Amici also submit that the first and 

third questions presented in the petition 
for certiorari are not actually presented 
by the facts of this case, and that the 
Court should not attempt to resolve those 
questions on this record.

ARGUMENT
I. TITLE VII, BY ITS TERMS, PROHIBITS 

DISPARATE IMPACT DISCRIMINATION AS 
W E L L  AS D I S P A R A T E  T R E A T M E N T  
DISCRIMINATION.

The individual disparate treatment 
model of McDonnell Douglas. which the 
Solicitor General would extend to 
disparate impact cases, was developed to 
a n a l y z e  c l a i m s  of i n t e n t i o n a l  
d i s c r i m i n a t i o n  against individual 
plaintiffs under §703(a)(1) of Title VII. 
See McDonnell Douglas, 411 U.S. at 676-77. 
"A disparate impact claim," on the other 
hand, "reflects the language of 
5703(a)(2)." Teal. 457 U.S. at 448.



10

The two subparts of §703(a) state:
It shall be an unlawful 

employment practice for an 
employer:

1. to fail or refuse to hire 
or to discharge any individual, or 
otherwise to discriminate against 
any individual with respect to his 
compensation, terms, conditions, 
or privileges of employment, 
because of such individual's race, 
color, religion, sex, or national 
origin; or

2 . 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 individual's race, color, 
religion, sex, or national origin.

42 U.S.C. §2000e-2(a). This statutory
language establishes a comprehensive
framework embracing both forms of
employment discrimination: disparate
treatment and disparate impact.

The Court has applied §703(a)(l) in a 
variety of circumstances involving

11
intentional discrimination. See e.q.. 
McDonnell Douglas (individual disparate 
treatment); Los Angeles Department of 
Water & Power v. Manhart. 435 U.S. 702 
(1978) (direct evidence of a policy of 
disparate treatment); Teamsters (pattern 
or practice of disparate treatment). The 
Court, however, has "not decide[d] 
whether, when confronted by a facially 
neutral plan, it is necessary to prove 
intent to establish a prima facie 
violation of §703 (a)(1)." Nashville Gas 
Co. v. Sattv. 434 U.S. 136, 144 (1977).2

The separate and distinct objective 
of Congress in enacting §703 (a) (2) "is 
plain from the language of the statute."

2Several lower courts have held that 
disparate impact challenges may also be 
brought under §703(a)(l). See, e.q.. 
Colby v. j . c .  Penney Co.. 811 F.2d 1119, 
1127 (7th Cir. 1987) ; Wambheim v. J.C. 
Penney Co.. 705 F. 2d 1492, 1494 (9th Cir. 
1983), cert, denied. 467 U.S. 1255 (1984).



12
Griggs. 401 U.S. at 429. Section
703 (a)(2) "speaks, not in terms of jobs 
and promotions, but in terms of 
limitations and classifications that would 
deprive any individual of employment 
opportunities.11 Teal, 457 U.S. at 449
(original emphasis).

A disparate impact claim 
r e f l e c t s  the language of 
§703(a)(2) and Congress' basic 
objectives in enacting that 
statute: "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."
(Griggs.1 401 U.S. at 429-430
(emphasis added).

Id. (original emphasis). See Satty, 434
U.S. at 141 (ruling that denial of 
pregnancy benefits is permissible under 
§703 (a)(1) "does not allow us to read 
§703 (a) (2) to permit an employer to burden 
female employees in such a way as to 
d e p r i v e  t h e m  of e m p l o y m e n t  

opportunities").

13
"Proof of discriminatory motive . . . 

is not required," Teamsters. 431 U.S. at 
335 n.15, by the terms of §703(a)(2). As 
then-Justice Rehnquist put it, "Griggs 
held that a violation of §703(a)(2) can be 
established by proof of a discriminatory 
effect." Satty, 434 U.S. at 144.

II. THE LEGISLATIVE HISTORY OF TITLE VII, 
THE 1972 AMENDMENTS, AND THE
UNIFORM ADMINISTRATIVE INTERPRE­
TATION OF THE STATUTE DEMONSTRATE 
T H A T  TH E  EVIDE N T I A R Y  STANDARDS 
ARTICULATED IN GRIGGS AND ITS PROGENY 
ARE CONSISTENT WITH THE INTENT OF 
CONGRESS.
A. In Enacting §703 (a)(2) In 1964,

Congress Specifically Intended 
To Prohibit "Institutionalized" 
Disparate Impact Discrimination
Not Motivated By Any
Discriminatory Purpose.

The 1964 legislative history confirms
this Court's assessment of Title VII seven
years later in Griggs. 401 U.S. at 429-30,
that: "The objective of Congress in the
enactment of Title VII was to



14
a c h i e v e  e q u a l i t y  of employment 
opportunities and remove barriers that 
have operated in the past to favor an 
identifiable group of white employees over 
other employees," whether those barriers 
yef e erected by intentional, racially 
motivated discrimination or by unjustified 
practices with a disparate impact. 
Congress did not see disparate impact 
discrimination as another form of 
disparate treatment discrimination, but 
rather as a separate evil which Title VII 
separately addressed. 3 *

The forerunner of §703(a)(2) was

contained in House and Senate bills

introduced in the 88th Congress, from

3See Rose, Subjective Employment 
Practices: Does the Discriminatory Impact 
Analysis Apply?, 25 San Diego L.R. 63, 73-
81 (1988) (author was chief of the section 
of the Department of Justice's Civil 
Rights Division responsible for 
enforcement of Title VII).

15
which Title VII of the omnibus Civil 
Rights Act of 1964 eventually emerged. 
Section 5(a)(2) of H.R. 405, which was 
favorably reported in H.R. Rep. No. 88- 
570 (1963), prohibited the limitation,
segregation, or classification of 
employees "in any way which would deprive 
or tend to deprive any person of 
employment opportunities or otherwise 
adversely affect his status as an 
employee" because of p r o h ibited 
discrimination. Id. at 8 .

The House Committee reported that 
discrimination in employment was "a 
pervasive practice" throughout the country 
and that it "permeate[d] the national 
social fabric —  North, South, East and 
West." Id. at 2.

. . . Job discrimination is
extant in almost every area of 
employment and in every area of 
the country. It ranges in degrees 
from patent absolute rejection to 
more subtle forms of invidious



16
distinctions. Most frequently, it 
manifests itself through relega­
tion to "traditional" positions 
and through discriminatory 
promotional practices.

Id. The House report attributed high 
minority unemployment and underemployment 
in part to such discriminatory practices. 
Id. Opponents of the bill attacked the 
breadth of the prohibition.4 However, 
with the addition of sex as one of the 
prohibited bases for unlawful employment 
practices, H.R. 405 passed without any 
amendment of this substantive provision.

In the Senate, language similar to 
§703(a)(2) appeared in S. 1937, a bill 
introduced by Senator Humphrey, who was 
later the floor manager for the omnibus

4H.R. Rep. No. 
(minority view of Reps.

88-570 at 110-11 
Poll and Crames.)

17
Civil Rights Act of 1964.5 The bill was 
reported favorably out of the Senate Labor 
Committee on February 4, 1964. S. Rep.
No. 88-867 (1964). Section 4(a) of S.
1937 made unlawful the discriminatory 
denial of "equal employment opportunity," 
including any practice which "results or 
tends to result in material disadvantage 
or impediment to any individual in 
obtaining employment or the incidents of 
employment for which he is otherwise 
qualified." Id. at 24. The Senate 
report, written by Senator Clark, who was 
later the bipartisan floor leader for 
Title VII, explained that:

Overt or covert discrimi­
n a t o r y  s e l e c t i o n  devices, 
intentional or unintentional, 
generally prevail throughout the 
major part of the white economic 
community. Deliberate procedures

5Senators Clark and Case, who were 
later the bipartisan Senate floor leaders 
for Title VII, were co-sponsors.



:

operate together with widespread 
built-in administrative processes 
through which nonwhite applicants 
are automatically excluded from 
job opportunities. Channels for 
job recruitment may be tradition­
ally directed to sources which by 
their nature do not include 
nonwhites; trainees may be 
selected from departments where 
Negroes have never worked; 
promotions may be based upon job 
experience which Negroes have 
never had.

As Secretary of Labor Wirtz 
stated in his testimony before the 
committee:

Discrimination has become, 
furthermore, institution­
alized so that it obtains 
today in some organizations 
and practices and areas as 
the product of inertia, 
preserved by forms and habits 
which can best be broken from 
the outside.

Id. at 5. According to the Committee, S. 
1937 defined "equal employment opportunity 
in broad terms to include a wide range of 
i n c i d e n t s  and f a c i l i t i e s ,  and
e n c o m p a s s e [ d ]  all a s p e c t s  of
discrimination in employment because of 
race, color, religion, or national

18 19
origin." Id. at 10. The report declared 
that the substantive provision was 
"designed specifically to reach into all 
of the institutionalized areas and 
recesses of discrimination, including the 
so-called built-in practices preserved 
through form, habit or inertia." Id. at
11. See also. Hearings on Equal
Employment Opportunity Before the 
Subcommittee on Employment of the Senate 
Committee on Labor and Public Welfare, 
88th Cong., 1st Sess. 144-45 (1963)
(remarks of Sen. Humphrey).

Senator Humphrey, as principal floor 
manager, introduced the omnibus bill that 
contained Title VII, H. 7512, on the floor 
of the Senate on March 30, 1964. 110
Cong. Rec. 6307. While the omnibus bill 
opted for court enforcement as opposed to 
the administrative cease-and-desist 
authority proposed in the Labor Committee



20
bill, the substantive focus of §703(a)(2) 
-- the broad prohibition of practices 
resulting in the denial of- employment 
opportunities —  remained the same. In 
explaining the bill, Senator Humphrey 
stated that, "at the present time Negroes 
and members of other minority groups do 
not have an equal chance to be hired, to 
be promoted, and to be given the most 
desirable assignments. . . . The crux of
the problem is to open employment 
opportunities for Negroes in occupations 
which have been traditionally closed to 
them." Id. at 6547, 6548.

The language of §703(a)(2) passed 
both houses intact.

B. In Amending Title VII In 1972, 
Congress Ratified The §703(a)(2) 
E v i d e n t i a r y  S t a n d a r d s  
Articulated In Griggs.

As the Court concluded in Teal. 
"[t]he legislative history of the 1972

21
amendments to Title VII . . . demonstrates 
that Congress recognized and endorsed the 
disparate impact analysis employed by the 
Court in Griggs." 457 U.S. at 447 n.8.6 
The Court explained that "[b]oth the House 
and Senate reports cited Griggs with 
approval, the Senate report noting that:

'Employment discrimination as 
viewed today is a . . . complex 
and pervasive phenomenon. Experts

6The legislative history of the 1972 
amendments is relevant here because those 
amendments extended the protection of 
§703 (a) (2) to "applicants for employment" 
(such as the respondents in the present 
case) as well as employees, and because 
the amendments extended the coverage of 
Title VII to federal and state employees. 
§§701 (a) , (b) , and (e) , 42 U.S.C. §§2000e-
(a), (b), and (e); §717, 42 U.S.C. §2000e-
16. See Teal. 457 U.S. at 447 n.8 ;
Franks_v. Bowman Transportation Co. 4 24
U.S. 747, 764 n.21 (1976); see also, id.
at 796 n.18 (Powell, J., concurring in
part and dissenting in part); Albemarle. 
422 U.S. at 420-21; Johnson v. Railway 
Express Agency. 421 U.S. 454, 459 (1975).
Compare Teamsters. 431 U.S. at 354 n.39
(1972 legislative history entitled to 
little if any weight in construing 
§703(h), which was unaffected by 1972 amendments).



22
familiar with the subject now 
generally describe the problem in 
terms of "systems" and "effects" 
rather than simply intentional 
wrongs.'"

Id. (quoting S. Rep. No. 92-415 at 5 
(1971)). See also H.R. Rep. No. 92-238 at 
8 (1971).

Congress in 1972 reiterated in even 
stronger terms than in 1964 that Title VII 
prohibited disparate impact discrimination 
as well as disparate treatment discrimi­
nation. Indeed, congressional recognition 
that "institutional" discrimination was an 
evil different from discrimination 
motivated by ill will or animus was the 
impetus for several of the more 
significant amendments.7 " [W]here

Senator Dominick, who sponsored the 
Nixon Administration's court-enforcement 
approach as an alternative to the proposal 
to give EEOC cease-and-desist powers, 
stated that "'most discriminatory 
treatment is institutional; subtle 
practices that leave minorities at a 
disadvantage.'" 118 Cong. Rec. 697 (1972) 
(quoting Wall__Street Journal article).

23
discrimination is institutional, rather 
than merely a matter of bad faith, 
corrective measures appear to be urgently 
required." S. Rep. No. 92-415 at 14.8

See also 118 Cong. Rec. 944-45 (1972)
p a r t e s  ? L San-K?POn3) ( " a  significantpart of the problem today is not the 
simple, willful act of some employer but
p?aotToesthe eflect .°f l°n,-established practices or systems in which there may be
no intent to discriminate or even 
knowledge that such is the effect").

^Congress in 1972 extended Title VII 
invoke emPl°yees, who previously could 
admin^st^ 7 Clvi1. Service Commission
necissarv remedles* * This change wasbecause the Commission had erroneously "assume[d] that employment
is soieira10n^ n thS Federal Government the % matater of malicious intent onfullv r L °  .lndlviduals," and "ha [d] not 
anH L  re<7,09nized that the general rules and procedures that it had promulgated m tv
to CT titUte ■ y S t e m i A a S i S
415 at L "  1W°men*" S * ReP- No* 92-
at 24 TitflT^Fp' H *R * Rep‘ N°* 92-238* Title VII was extended to stateempioyees for similar reasons. See H R
discrirTinat-‘92-238 • at 17 <""irfipread in state I T ,  aga,lnst -"inorities exists and -I31 9ov?mment employment
j ■ ’ • the existence of this
prererncI"elnoaftih nth P.erPetM ted by thediscern? °f both institutional and overt aiscrimmatory practices") .



24
In ratifying G riggs, Congress 

understood that such institutional 
practices could be justified only if the 
employer discharged a heavy burden of 
showing "overriding" business necessity. 
The House report summarized Griggs as 
holding that "employment tests, even if 
valid on their face and applied in a non- 
discriminatory manner, were invalid if 
they tended to discriminate against 
minorities and the company could not show 
an overriding reason why tests were 
necessary." H.R. Rep. No. 9 2-238 at 21 
(emphasis added) ; see also id. at 22 ("If 
the use of the test acts to maintain 
existing or past discriminatory imbalances 
in the job, or tends to discriminate 
against applicants on the basis of race, 
color, religion, sex or national origin, 
the employer must show an overriding 
business necessity to justify use of the

25
test"); id.. at 8 ("showing of an 
overriding business necessity for the use 
of such action").9

Finally, in language "that could 
hardly be more explicit," Franks. 424 
U.S. at 764 n.21, the section-by-section 
analyses submitted to both houses 
"confirm[ed] Congress' resolve to accept 
prevailing judicial interpretation 
regarding the scope of Title VII." Local
28,_Sheet Metal Workers v. EEOC. 478 U.S.
421, 470 (1986). See 118 Cong. Rec. 7166, 
7564 (1972) ("present case law as
developed by the courts would continue to

^Congress did not consider the 
employer's burden to be merely that of 
articulating a legitimate reason for 
engaging in practices that systematically 
excluded minorities or women. id. 
Senator Dominick, for instance, explained 
that under Griggs. "'employment tests, 
even if fairly applied are invalid if they 
have a discriminatory effect and can't be 
j.u s t i f i e d on the basis of business 
necessity.'" H 8 Cong. Rec. 697 (1972) 
(citation omitted) (emphasis added).



26
govern the applicability and construction 
of Title VII"). As the Court concluded in 
Teal. Congress made an explicit statement 
"that in any area not addressed by the 
amendments, present case law —  which as 
Congress had already recognized included 
our then recent decision in Griggs —  was 
intended to continue to govern." 457 U.S. 
at 447 n.8 .

C. The Evidentiary Standards Of 
Griggs And Its Progeny Have Been 
Uniformly Confirmed By 
Administrative Interpretations 
Of §703(a)(2).

The Court's c o n struction of 
§703 (a) (2) in Griggs is "confirmed by the 
contemporaneous interpretations of . 
both the Justice Department and the EEOC, 
the two federal agencies charged with 
enforcement responsibility]." Local 28. 
478 U.S. at 465-66. The enforcement 
agencies' administrative guidelines on
this subject have been construed as

27
"express [ing] the will of Congress." 
Griggs, 401 U.S. at 434 ; see Albemarle. 
422 U.S. at 431.10

In guidelines initially adopted in 
1966 and elaborated in 1970, see Griggs. 
401 U.S. at 434 n.9, the EEOC interpreted 
§703 (a) (2) as prohibiting the use of any 
test or other selection technigue that was 
discriminatory in operation unless the 
e m p l o y e r  c o u l d  e s t a b l i s h  j o b ­
relatedness.11 These guidelines, as

10 B e c a u s e the guidelines are 
consistent with the statutory language and 
the legislative history, they are 
"entitled to great deference." Albemarle, 
422 U.S. at 431; Griggs, 401 U.S. at 433- 
34; see also Local 28. 478 U.S. at 465-
66' Local__93, Firefighters v. city of
Cleveland, 478 U.S. 501,518 (1986). Cf.
General Electric Co. v. Gilbert. 429 U.S. 
3.25, 141-45 (1976) (EEOC guidelines on sex
discrimination not followed because they 
contradicted agency's earlier positions 
and were inconsistent with Congress' plain 
intent) ; Espinoza v. Farah Mfg. Co. 414 U.S. 86, 93-94 (1973).

11E EOC Guidelines on Employee 
Selection Procedures, 35 Fed. Reg. 12333 
12334 (1970), codified at 29 C.F.r !



28
revised by the EEOC in 1970 prior to the 
Court's 1971 decision in Griggs, treated 
disparate impact discrimination as an evil 
separate from disparate treatment, and 
they interpreted Title VII as prohibiting 
both forms of discrimination.

The principle of disparate or 
unequal treatment must be 
distinguished from the concepts of 
validation. A test or other 
employee selection standard 
even though validated against job 
performance in accordance with the 
guidelines in this part —  cannot 
be imposed upon any individual or 
class protected by Title VII where 
other employees, applicants or 
members have not been subject to 
that standard.

35 Fed. Reg. at 12336 (29 C.F.R.
§1607.11).* 12

§§1607.3, 1607.13 (1970) (elaborating EEOC 
Gui d e l i n e s  on Employment Testing 
Procedures, reprinted in CCH Empl. Prac. 
Guide 116,904 (1967)).

12The Uniform Guidelines on Employee 
Selection Procedures, 43 Fed. Reg. 38290 
(1978), codified at 29 C.F.R. §1607 (1986) 
—  which superseded the EEOC Guidelines 
and were adopted by the EEOC, the 
Department of Justice, and other agencies

29

III. THE SEPARATE EVIDENTIARY ANALYSES 
DEVELOPED BY THE COURT REFLECT THE 
DISTINCT NATURE OF THE DISCRIMINATORY 
PRACTICES CONGRESS INTENDED TO PRO­
SCRIBE IN §§703(a)(1) AND 703(a)(2).
Nothing on the face of the statute or

in its legislative history supports the
Solicitor General's argument that the
§703(a)(l) evidentiary standards of
McDonnell Douglas should supplant the
§703(a)(2) evidentiary standards of
Griggs. Indeed, this Court has developed
different standards precisely because it
is necessary to take into account the

in 1978 —  similarly require the
application of disparate impact analysis 
to "any selection procedure" and embrace 
the evidentiary standards of Griggs. See 
29 C.F.R. §1607.3 Like the EEOC
Guidelines, the Uniform Guidelines 
separately prohibit both unjustified 
disparate impact and disparate treatment 
in the use of selection procedures. See 
29 C.F.R. §1607.11 ("The principles of 
disparate or unequal treatment must be 
distinguished from the concepts of 
validation").



distinctions among various kinds of 
disparate treatment cases as well as the 
basic distinction between disparate 
treatment discrimination and disparate 
impact discrimination. Moreover, with
respect to the separate disparate
treatment and disparate impact analyses, 
the Court has ruled that "[e]ither theory 
may, of course, be applied to a particular 
set of facts," Teamsters. 431 U.S. at 335
n .15, not that the two analyses are 
functionally indistinguishable.

A. The Court Has Articulated
Evidentiary Standards For
Analyzing Disparate Treatment
Claims Under Section 703(a)(1).

The Court has articulated several
methods of analyzing disparate treatment 
claims under §703(a)(l). The proper
analysis varies depending upon the nature 
of the claims and the evidence presented

30

in each case.

31

1. Individual Disparate Treatment.
The McDonnell Douglas model for 

individual disparate treatment cases is 
"intended progressively to sharpen the 
inquiry into the elusive factual question 
of intentional discrimination," Texas 
Department of Community Affairs v. 
Burdine, 450 U.S. 248, 254 n .8 (1981), 
when direct evidence of discrimination is 
absent. Thurston. 469 U.S. at 121. Under 
the individual disparate treatment 
analysis, the plaintiff must establish a 
prima facie case through circumstantial 
evidence —  by showing, for example, that 
he or she belongs to a group protected by 
Title VII; that he or she applied and was 
qualified; that the application was 
rejected; and that the position remained 
open after the rejection. McDonnell 
Douglas, 411 U.S. at 802. "The prima
facie case . . . eliminates the most



32
common non-discriminatory reasons for the 
plaintiff's rejection . • . [and] raises
an inference of discrimination only 
because we presume these acts, if 
otherwise unexplained, are more likely 
than not based on the consideration of 
impermissible factors.'" Burdine, 450 
U.S. at 253-55 (quoting Furnco
Construction Coro, v. Waters, 438 U.S. 
567, 577 (1978)).

A prima facie case of individual 
disparate treatment, however, is 
"insufficient to shift the burden of 
proving a lack of discriminatory intent to 
the defendant." Watson 108 S. Ct. at 2793 
(Blackmun, J., concurring in part and 
concurring in the judgment) (original 
emphasis) . Such a prima facie showing 
merely shifts to the employer the burden 
of producing admissible evidence that the 
plaintiff was rejected for a legitimate,

33
n o n d i s c r i m i n a t o r y  reason, thereby 
rebutting the presumption and raising a 
genuine issue of fact as to whether the 
employer discriminated against the 
plaintiff. Burdine. 450 U.S. at 254-55. 
As a result, the employer "frames[s] the 
factual issue with sufficient clarity so 
that the plaintiff will have a full and 
fair opportunity to demonstrate pretext." 
Id.

2. Direct Evidence of intentinn«i 
Discrimination.
"[T ]he McDonnell Douglas test is 

inapplicable where the plaintiff presents 
direct evidence of discrimination." 
Thurston, 469 U.S. at 121; see Teamsters, 
431 U.S. at 358 n.44. Where plaintiff's 
direct evidence of discrimination is 
accepted, an employment practice is 
established as "discriminatory on its 
face" without further need to show a



34
discriminatory intent. Thurston. 469 U.S. 
at 121 (policy conditioning transfer 
rights on age of airline captains is 
discriminatory on its face under the Age 
Discrimination in Employment Act) ; 
M a n h a r t . 435 U.S. at 708 (policy
requiring female employees to make larger 
contributions to pension fund than male 
employees is discriminatory on its face 
under §703(a)(l)); Phillips v. Martin 
Marietta Corp. . 400 U.S. 542 (1971) (per
curiam) (policy of hiring men but not 
women with pre-school age children is 
discriminatory on its face under 
§703(a)(1)).

Where plaintiffs' direct evidence 
establishes disparate treatment, the 
burden shifts to the employer to justify 
the practice by proving the applicability 
of any statutory immunities or affirmative 
defenses. See Thurston. 469 U.S. at 122-

35
25 (rejecting employer's statutory bona 
fide occupational qualification and bona 
fide seniority system defenses); Manhart, 
435 U.S. at 716-17 (rejecting cost 
justification defense as unavailable in a 
disparate treatment case) ; Phillips, 400 
U.S. at 544 (remanding for evidence on
bona fide occupational qualification 
defense).

I ! Pattern or Practice of TnfQn- 
tionaJL_Discrimi nation.
In class actions and other cases

involving claims of widespread intentional
discrimination against members of a race,
sex, or ethnic group, statistical or other
evidence of a -pattern or practice- of
disparate treatment is sufficient to

ablish a prima facie violation in the
sence of direct evidence of intentional

discrimination. Teamsters, 431 u.s. at
Franks, 424 U.S. at 751. "The burden



36
then shifts to the employer to defeat the 
prima facie showing of a pattern or 
p r a c t i c e  by d e m o n s t r a t i n g  that 
[plaintiffs'] proof is either inaccurate 
or insignificant." leamsters, 431 U.S. at 
360. see also Hazelwood School District 
tin i ted States. 433 U.S. 299, 310 (1977).
If the employer fails to rebut the prima 
facie case, the court concludes that a 
violation has occurred and enters 
appropriate classwide declaratory and 
injunctive relief without hearing further 
evidence. Teamsters, 431 U.S. at 361.

B The court Has Articulated 
Separate Evidentiary Standards 
For Analyzing Disparate Impact 
Claims Under Section 703(a)(2).

in enacting §703(a)(2), "Congress
required 'the removal of artificial,
arbitrary, and unnecessary barriers to
employment when the barriers operate
invidiously to discriminate on the basis

37
of racial or 
classification.'" 
433 U.S. 321, 328

other impermissible 
Dothard v. Rawlinson, 

(1977) (quoting Griggs,
401 U.S. at 431).

The gist of [a §703(a)(2)] 
claim . . . does not involve an
a s s e r t i o n  of p u r p o s e f u l  
discriminatory motive. It is
asserted, rather, that these 
facially neutral qualifications 
work in fact disproportionately to 
exclude women from eligibility 
for employment. . _ . [T]o
establish a prima facie case of 
discrimination, a plaintiff need 
only show that the facially 
neutral standards in question 
select applicants for hire in a 
significantly discriminatory 
pattern.

Since it is shown that the 
e m p l o y m e n t  s t a n d a r d s  are 
discriminatory in effect, the 
employer must meet "the burden of 
showing that any given requirement 
[has] . . .  a manifest relation 
to the employment in question." 
Griggs v. Duke Power Co.. 401 U.S. 
at 432. If the employer proves 
that the challenged requirements 
are job related, the plaintiff may 
then show that other selection 
devices without a similar 
discriminatory effect would also 
'serve the employer's legitimate 
interest in 'efficient and 
t r u s t w o r t h y  w o r k m a n s h i p , '



38
&lbRTnarle Pajper Co. v. Moody, 422 
uTlT at 425 quoting M ^ D o n n ^  
nmialas Cor-p. v. Green, 411 U.S.
792, 801.

Dothard. 433 U.S. at 329-30.
When a plaintiff proves that a 

facially neutral practice has significant 
adverse impact, the plaintiff has 
established the very conduct that 
§703 (a) (2) prohibits. Watson, 108 S. Ct. 
at 2794 (Blackmun, J., concurring in part 
end concurring in the judgment) ("unlike a 
claim of intentional discrimination, which 
the McDonnell Douglas factors establish 
only by inference, the disparate impact 
caused by an employment practice is 13

13This analysis is typically used in 
class actions under Rule 23, Fed. R - Civ. 
p and government pattern or practic 
actions under §707 of Title VII, 42 U SC. 
5 2000e-6 because disparate impact 
discrimination is by its nature broadly 
applicable to a group. However, the 
analysis has also been utilized in cases 
seeking relief only for individual 
plaintiffs. See, e^g., Teal, * ,442-44 ; T.owe v. C^ y  of Monrovia, 775 F.2d
998, 1004 (9th Cir. 1985).

39
directly established by the numerical 
disparity") ; see Sattv. 434 U.S. at 144 
("Griggs held that a violation of 
§703(a)(2) can be established by proof of 
a discriminatory effect"). Similarly, in 
both the direct evidence (Thurston) and 
pattern or practice intentional 
discrimination (Teamsters) models, the 
prima facie case directly establishes the 
discrimination prohibited by §703(a)(1). 
The direct evidence and pattern or 
practice models, like the disparate impact 
model, were developed for analyzing 
evidence concerning employment practices 
and policies that affect large numbers of 
people on a classwide basis.

The McDonnell Douglas individual 
disparate treatment model, on the other 
hand, was developed to analyze the very 
different kinds of evidence typically 
presented in a case involving a discrete



40
act of intentional discrimination against 
a single individual. A prima facie 
showing in a McDonnell Douglas case is not 
comparable in either its nature or its 
effect to a prima facie showing in a 
Griggs disparate impact case. A McDonnell 
Douglas prima facie case does not in 
itself establish the intentional 
discrimination prohibited by §703(a)(1); 
it only "eliminates the most common 
nondiscriminatory reasons for the 
plaintiff's rejection." Burdine, 450 U.S. 
at 255; see Teamsters. 431 U.S. at 358
n. 44.

This Court has uniformly held that, 
once the plaintiff establishes a prima 
facie disparate impact case under 
§703 (a) (2), the burden shifts to the 
employer to prove that the challenged 
practice is justified. See, e.g., Teal.
457 U.S. at 446 ("employer must .

41
demonstrate that any given reguirement
[has] a manifest relationship"); New York 
City Transit Authority v. Beazerr 440 U.S.
568, 587 (1979) (prima facie case
"rebutted by [employer's] demonstration 
that its narcotics rule . . .  'is job 
related'"); Dothard. 433 U.S. at 329 
(employer must "prov[e] that the
challenged reguirements are job related"); 
Albemarle, 422 U.S. at 425 (employer has
"burden of proving that its tests are 'job 
related'"); Griggs, 401 U.S. at 431, 432
("The touchstone is business necessity"; 
Congress has placed on the employer the 

burden of showing that any given 
reguirement must have a manifest 
relationship to the employment in 
question"); see also Watson. 108 S. Ct. at 
2794 (Blackmun, J., concurring in part and 
concurring in the judgment).



42
While it is true that an evidentiary 

burden may be either one of persuasion or 
one of production, this Court in Title VII 
disparate impact cases has always imposed 
on the employer the burden to persuade the 
trier of fact of its justification for 
using practices that have a discriminatory 
impact. Indeed, as petitioners here 
concede, see Brief for Petitioners at 42, 
the employer has the burden of 
demonstrating business necessity as an 
"affirmative defense to claims of 
violation" of §703(a)(2). Guardians 
Association v. Civil Service Commission. 
463 U.S. 582, 598 (1983) (White, J., 
announcing the Court's judgment and 
delivering an opinion joined by Rehnquist, 
J.) (Title VI case).

In trying to force the Griggs 
analysis into the McDonnell Douglas 
formula, the Solicitor General ignores the

43
Court's repeated admonitions that
McDonnell__Douglas does not provide the
proper model for analyzing all Title VII 
claims.14 in an individual disparate 
treatment case, it is appropriate to 
impose a minimal burden of production on 
the employer because the plaintiff's prima 
facie showing is itself "not onerous," 
M r M n e ,  450 U.S. at 253, and does not in 
itself establish a violation of 
§703(a)(1). That same slight burden would 
be inappropriate in a disparate impact 
case, where the prima facie showing 
usually includes substantial statistical

tt q ^-3 *' McDonnell Donolag 411
wifi l«r?02i„n 'iitl(e"Th;iifaCtB necessarilY specification VII cases, and the
t S i s ' c a s H i T t  fr°m the c°”P ™ n a n ? CiSevery ^ necessarily applicable in
situations") - Team^ dlfferin<? factual( "Our • S^amsters, 431 U.S. at 358

did nnf n in [McDonnell Douglas] . .
formuiation^T-^Furnc(McDonnell n 438 U.S. at 575
i ^ S d 2d1J r S ^ n/10^ Uh11ation "was notu De an inflexible rule").



44
evidence of adverse impact and constitutes 
direct evidence of a violation of 

§703(a)(2).

C. The Griggs Disparate Impact 
Analysis Is Analogous To The 
Teamsters And Thurston Disparate 
Treatment Analyses.

The Solicitor General's theory fails
on its own terms. If there is a need
analogize disparate impact analysis to
some disparate treatment mode of proof,
amici submit that the Teamsters "pattern «
or practice" model and the Thurston 
"direct evidence" model provide more 
appropriate analogies than the McDonnell, 
Douglas "individual case" model. In the 
Tpamsters and Thurston models, the 
allegedly discriminatory conduct is not a 
single, isolated decision affecting only 
one individual, but rather a broadly 
applicable practice of intentional 
discrimination affecting a class as a

45
whole. The purpose of these analyses is 
comparable to the purpose of the disparate 
impact model, with its parallel focus on 
"artificial, arbitrary, and unnecessary 
barriers to employment." Griggs. 401 U.S. 
at 431. In the Solicitor General's terms, 
c l a s s w i d e  d i s p a r a t e  t r e a t m e n t  
discrimination is the "functional 
equivalent" of disparate impact 
discrimination.

Because of the similarity in the 
practices analyzed, the evidentiary models 
are also similar. In the Teamsters and 
Thurston models, plaintiffs establish a 
prima facie case by introducing 
statistical or other evidence of a 
"standard operating procedure" of 
classwide disparate treatment, Teamsters. 
431 U.S. at 336, or by proving the 
classwide application of a facially 
discriminatory policy. Thurston. 469 U.S.



46
at 121. m  the Srigal disparate impact 
model, plaintiffs establish a prima facie 
case by marshalling comparable evidence of 
a practice affecting an entire class of 
employees or applicants. Moreover, in the 
Toa.eters and Thurston disparate treatment 

models, as in the Griggs disparate impact 
model, proof of a prima facie case shifts 
the burden of persuasion, not the burden 
o£ production, to the employer. See

ati u S at 360; Thurston, 469 Teamsters, 431 U.b.
p.s. at 122-25. in all three models, 

plaintiff has borne his burden of proof to 
establish a violation of Title V H ,  
defendant then has the burden of proving a 
justification, establishing what is, in 

essence, an affirmative defense.
in short, there is no need to change 

the r.riags disparate impact analysis to 
make it conform to the appropriate 
disparate treatment analysis. Existing

47
e v i d e n t i a r y  standards for analyzing 
d i s p a r a t e  impact discrimination are 
a l r e a d y  c l o s e l y  a n a l o g o u s  to the 
e v i d e n t i a r y  standards for analyzing 
disparate treatment discrimination under 

Teamsters and Thurston..

IV OVERRULING THE EVIDENTIARY STANDARDS 
OF GRIGGS AND ITS PROGENY WOULD BE 
CONTRARY TO THE REMEDIAL PURPOSE OF 
TITLE VII.
The Solicitor General argues, in 

essence, that Griggs and its progeny 
should be overruled in order to make the 
employer's burden in a Griggs disparate 
impact case conform to the employer's 
burden in a McDonnell Douglas individual 
disparate treatment case. Overruling the 
Court's prior decisions in this manner, 
however, would drastically alter the 
nature of disparate impact analysis under 
§703 (a) (2). The employer's burden would 
be reduced to such an extent that all but



48
the most unimaginative employers -  - a b l e  
even to articulate a legitimate reason tor 
practices having a signiticant aaverse 
impact -  would he able to rebut a showing 
of disparate impact discrimination, no 

matter how compelling. The result woul 
b e  a n  effective repeal of 5703( a ) ( 2) .

The Court in G r ig a S  identified Title 
VII,S fundamental purpose as "the removal 
of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers 
operate invidiously to discriminate on the 
basis of racial or other impermissible 

classification." 401 U.S. at 431. The 
statute "policets," not only the problem 
of intentional discrimination through the 
disparate treatment analyses available

under 5703(a)(1), but also "the problem of
subconscious stereotypes and prejudices,"

Watson, 108 S. Ct. at 2786 (part II.), and 
..built-in practices preserved through

49
form, habit or inertia." S. Rep. No. 88- 
867 at 11. The latter purpose derives 
from the terms of §703(a)(2) and, as 
Congress recognized, is enforced by 
application of the disparate impact 
analysis articulated in Griggg. The 
Solicitor General's proposal to overrule 
the evidentiary standards of Griggs and 
its progeny is contrary to Title VII's 
fundamental purpose.

The Solicitor General would have the 
Court transmute the employer's burden of 
persuasion in a Griggs disparate impact 
case into the burden of production imposed 
on an employer in a McDonnell Douglas 
individual disparate treatment case —  a 
feat of judicial alchemy that would 
drastically change the nature of disparate 
impact analysis under §703(a)(2). The 
employer's burden in such cases of proving 
an "overriding business necessity," as



50
Congress termed it, is appropriately high 
because the challenged practice has been 
shown to violate §703 (a) (2) as a prima 
facie matter. The Solicitor General's 
proposed standard, in contrast, would 
declare such practices lawful whenever the 
employer could simply articulate a 
"legitimate, nondiscriminatory reason" for 
its actions; the employer "need not [even] 
persuade the court that it was actually 
motivated by the proffered reason[ ]."
Burdine, 450 U.S. at 254. The Solicitor 
General would then permit the plaintiff to 
introduce contrary evidence, but would put 
the risk of nonpersuasion of business 
necessity on the plaintiff. Failing this, 
all the plaintiff then could do to abate 
the exclusionary practice would be to 
present evidence of alternative selection 
devices. As a result, the plaintiff would 
have not only the burden of proving a

51
prima facie case of disparate impact, but 
also the burden of disproving business 
necessity.

The scheme proposed by the Solicitor 
General would thwart the specific remedial 
purpose of §703(a)(2) by making it 
virtually impossible for a plaintiff to 
prevail on a claim of disparate impact 
discrimination. As a practical matter, 
§703 (a) (2) would be repealed as an 
independent substantive provision, and the 
evils to which that provision is addressed 
—  "the problem of s u bconscious 
stereotypes and prejudices" and "built-in 
practices preserved through form, habit or 
inertia" —  would go unremedied.

Ignoring that the Griggs disparate 
impact standard directly reflects 
statutory language and congressional will, 
the Solicitor General attempts to justify 
its revision by raising the specter of



quotas and intrusion on managerial 
prerogatives. See Brief for the United 
States as Amicus Curiae at 25. Griggs 
itself rejected such claims, 401 U.S. at 
436, as did Congress when it ratified 
Griggs in 1972.15

Moreover, the suggestion that 
subjective selection procedures are 
impossible to validate16 is simply wrong. 
The courts have identified specific 
characteristics of valid subjective rating 
procedures, such as using specific 
guidelines for raters, rating only

52

^ C o n g r e s s i o n a l  o p p o n e n t s  
specifically objected to the 1972 
amendments on these grounds, but their 
views were not accepted. E .g .. 117 Cong. 
Rec. 32108 (1971) (comments of Rep. Rarick 
that bill would require preferential 
treatment and maintenance of racial 
balance); 117 Cong. Rec. 38402 (1971)
(comments of Sen. Allen that bill would 
infringe on discretion of state and local 
officials to select employees).

16See Brief for the United States as 
Amicus Curiae at 25 n.35; Brief for
Petitioners at 47.

53
observable behaviors or performance, 
requiring raters to have knowledge of job 
responsibilities, and using an evaluative 
device with fixed content that calls for 
discrete judgments.17 Subjective 
selection procedures can be and have been 
successfully validated.18 See Rose,
Subjective__Employment Practice, 25 San
Diego L. Rev. at 87-92.

Pmnl „?• Schlei s P. Grossman,Employment Discrimination t,aw 202-05 (2ded. 1983) (collecting cases).

18_ • , ~ee' ^ • 3 • r Firefighters T not- for
R a g i a l ^ p j a l l t y  v . ^ i t y _ jaO t .  L o u i s .
•2d 350, 362 (8th Cir. 1980), cert

fe m e s } , 452 U.S. 938 (1981) (inte^ie^fSd
training simulations); Wade_v. Mississinni 
£a°p. Extension Gary., ̂ I T T . Supp. ijff4 
(N.d . M i s s .  1985) (promotional performance evaluation); Tillery v. Pacific



54

^  • fe/' '
-

V. THE first AND THEHIpETI?iONTITOt 
certiorari JS not fRNsented n  ™ e 
facts of this case.
With respect to the first question 

presented in the petition (ooncerninq the
standards for establishing a p n »  facie 
case of disparate impact) and the third 
question presented (concerning the 
application of disparate impact analysis 
to multicomponent selection practices), 
amici rely on respondents' brief. 
However, as we briefly explain, it appears 
that neither question is actually 
presented by the record before the court.

Rs to the first question, petitioners 
argue that the Ninth circuit's reliance 
upon statistics comparing cannery with 
noncannery positions is erroneous because 
there was no showing of an internal

c,,rh statistics would promotion system. Such
be marshalled as evidence of promotional 
discrimination where an employer maintains

55
an internal promotion system in which 
lower level employees are the selection 
pool for upper level positions. See, 
e .q . t Paxton v. Union National— Bank, 688 
F . 2d 552, 564 (8th Cir. 1982), cert,.
denied. 460 U.S. 1083 (1983). However,
p e t i t i o n e r s  err in arguing that 
comparative statistics can be used only 
where there are internal promotions.

In this case, plaintiffs challenged, 
on both disparate impact and disparate 
treatment grounds, several specific hiring 
practices —  nepotism, subjectively 
evaluated selection criteria, separate 
hiring channels and word of mouth 
recruitment, a rehire preference, and a 
series of related practices involving race 
labeling, housing and messing. Plaintiffs 
presented independent statistical or other 
evidence that each of these specific 
practices had a significant adverse impact



56
on minority class members. Except for the 
rehire preference, the district court 
erroneously failed to consider the 
challenge under, or erred in applying, the 
disparate impact standard. See App. Cert. 
VI-19-VI-39; see also, Brief for the 
United States as Amicus Curiae at 20 ("The 
district court did not apply disparate 
impact analysis to the selection of 
noncannery workers generally, and there is 
therefore no finding that respondents' 
statistics did not make out a prima facie 
case under the disparate impact model"). 
The Ninth Circuit, therefore, properly 
remanded these issues to the district 
court.

The comparative statistics to which 
petitioners object were not relied upon as 
the sole evidence of the disparate impact 
of the challenged practices. The Ninth
Circuit upheld the use of these

«

57
comparative statistics on the limited 
ground that "such statistics can serve to 
d e m o n strate the conse q u e n c e s  of 
discriminatory practices which have 
already been independently established." 
App. Cert. VI-16. The comparative 
statistics, which do not appear strictly 
to be necessary to establish the disparate 
impact of each of the challenged 
practices, were presented as additional 
evidence that "some practice or 
combination of practices has caused the 
distribution of employees by race." App. 
Cert. VI-18.19

190n the facts of this case, the 
Ninth Circuit correctly considered these 
statistics given the difficulty of 
establishing the available labor pool for 
the migrant and seasonal noncannery jobs 
in question, the arbitrary nature of the 
qualifications actually imposed for the 
noncannery jobs, and the fact that 
minority cannery workers were apparently 
qualified and available. The Ninth 
Circuit's unwillingness to rely on 
petitioners' generalized census data, and 
its reliance instead on more probative



58
As to the third question presented, 

petitioners argue that only "cumulative- 
evidence of the impact of several 
employment practices was presented. For 
the reasons stated above, we believe 
petitioners have misstated the record: 
Specific, identified hiring practices were 
challenged, and both practice-specific 
evidence and cumulative statistical
evidence were presented below.

However, if this were a case in which 
a plaintiff challenged a multicomponent 
employment practice, the adequacy of 
cumulative evidence of disparate impact 
would depend upon particular factual 
circumstances. If the practice consisted 
of a series of sequential steps, e^. ,

practice-specific evidence of disparate 
impact coupled with respondent 
comparative statistics, are understandable 
andP proper in view of the record in this
case.

59
Teal. 457 U.S. at 443-44 (a qualifying
wri tt en  e xa mi n at i on  followed by 
consideration of other criteria) , the 
plaintiff might attack one or more steps, 
or the plaintiff might attack the process 
as a whole. While a plaintiff challenging 
one or more discrete steps in the process 
typically introduces evidence of the 
disparate impact of each challenged step, 
a plaintiff challenging the process as a 
whole is not required to introduce such 
evidence.20

Moreover, a plaintiff challenging a 
multicomponent practice in which the 
employer combines consideration of several 
factors, e .a .. Teal, 457 U.S. at 444
(employees promoted from a list of

2Ogee Green v. USX Coro. . 84 3 F.2d
1511, 1524 (3rd Cir. 1988); Seqar v. 
Smith. 738 F.2d 1249, 1271 (D.C. Cir. 
1984). See also. 29 C.F.R. §1607.16Q
(Uniform Guidelines apply to any "measure 
[or] combination of measures").



60
successful test takers based on an amalgam 
of work performance, recommendations and 
seniority), should not be required to 
identify and present specific disparate 
impact evidence as to each factor. Title 
VII does not prohibit discrete 
discriminatory criteria in the abstract, 
but as "actually applied." Albemarle, 422 
U.S. at 433. If an employer uses an 
amalgam of factors as a practice, and that 
practice has a disparate impact, the 
plaintiff should not be required to go 
through the academic exercise of 
disentangling the factors in order to 
ascertain which particular factors caused 
the disparate impact of the practice as a 
whole. That burden should be borne by the 
employer. 21

21I t  is the employer who presumably 
has an interest in distinguishing among 
several factors that produce a disparate 
impact in order to isolate the 
discriminatory factors and to save the

61
Amici respectfully submit that the 

first and third questions presented in the 
petition for certiorari are not actually 
presented by the facts of this case, and 
that those questions should not be decided- 
on this record.

rest. It is the employer who may wish to 
conduct separate validation studies of the 
factors. Moreover, it is the employer who 
has the obligation under administrative 
guidelines to "maintain and have available 
records or other information showing which 
components [of a multicomponent selection 
procedure] have an adverse impact." 
Uniform Guidelines on Employee Selection 
Procedures, 29 C.F.R. §1607.15(a) (2) 
(employers with 100 or more employees 
should maintain component data if overall 
practice has adverse impact or for two 
years after impact eliminated). See Brief 
for the United States as Amicus Curiae at 
22 ("certainly if [multiple] factors 
combine to produce a single ultimate 
selection decision and it is not possible 
to challenge each one, the decision may be 
challenged (and defended) as a whole").



62
CONCLUSION

The order of the Ninth Circuit 
remanding the case for further proceedings 
should be affirmed.

Respectfully Submitted,

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS

NAACP Legal Defense and 
Educational Fund, Inc.

BILL LANN LEE*
PATRICK O. PATTERSON, JR. 
THEODORE M. SHAW

NAACP Legal Defense and 
Educational Fund, Inc.

ANTONIA HERNANDEZ 
E. RICHARD LARSON 
JOSE ROBERTO JUAREZ, JR.

Mexican American Legal Defense 
and Educational Fund

RUBEN FRANCO 
KENNETH KIMERLING

Puerto Rican Legal Defense 
and Education Fund

Counsel for Amici Curiae
*Counsel of Record
November 1988

i

i