Connecticut v. Teal Brief Amicus Curiae in Support of Respondents

    No. 80-2147

In T he

§uprotte (tart nf tin' luttrfc BUxUb
October Term , 1981

State op Connecticut, et al,
v Petitioners,

Winnie Teal, et al.

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

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

IN SUPPORT OF RESPONDENTS

M a x im il ia n  W . K e m p n e r  
R ic h a r d  C. D in k e l s p ie l

Co-Chairmen
W il l ia m  L . R o b in so n  
N o r m a n  J. C h a c h k i n  *
B eatr ice  R osenberg

L a w y e r s ’ Co m m it t e e  for 
C iv il  R ig h t s  U nder  L a w  

733 15th Street, N.W., Suite 520 
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for  Amicus Curiae 
* Counsel o f Record

W il so n  - Epes Print in g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D .C .  2 0 0 0 1



QUESTION PRESENTED
In a Title V II suit by black employees who were 

absolutely barred by their failure to pass a written 
examination from being considered for  promotion to 
positions they had temporarily filled, did the district 
court, which found the examination to be prima facie 
discriminatory, err in refusing to consider the validity 
o f the test because a number of other black employees 
were ultimately selected for the positions at issue?

(i)



TABLE OF CONTENTS
Page

INTEREST OF AMICUS CURIAE ..............................  1

STATEMENT ... ................................................... .............. 2

SUMMARY OF ARGUMENT ........... ......................... . 4

ARGUMENT
I. THE RIGHTS OF THE INDIVIDUAL RE­

SPONDENTS UNDER TITLE VII WERE VIO­
LATED BY A TEST WHICH DISCRIMINA- 
TORILY EXCLUDED THEM FROM CONSID­
ERATION FOR PROMOTION ON THE BASIS
OF RACE ......... ............ ........................ ..................  7

II. A RACIALLY DISCRIMINATORY, NON-JOB- 
RELATED TEST IS NOT A  BONA FIDE 
MERIT SYSTEM WITHIN THE PURVIEW
OF SECTION 703(h) OF TITLE V I I .............. 15

CONCLUSION ........................ ........................ .................... 17

(iii)



IV

TABLE OF AUTHORITIES
CASES Page

Albemarle Payer Co. v. Moody, 422 U.S. 405
(1975)  .................................... ............. ....................  7

Association against Discrimination v. City of 
Bridgeport, 647 F.2d 256 (2d Cir. 1981), peti­
tions for cert, filed, 50 U.S.L.W. 3134 (August
25, 26, 1981) ...................................... ..................... 6, 15

Blake v. City of Los Angeles, 595 F.2d 1367 (9th 
Cir. 1979), cert, denied, 446 U.S. 928 (1980).... 16

Brown v. New Haven Civil Service Board, 474
F. Supp. 1256 (D. Conn. 1979)......... ................. ..3, 9,14

City of Los Angeles, Dept, of Water and Potver v.
Manhart, 435 U.S. 702 (1978) ........ ...................  6, 13

Dothard v. Rawlinson, 433 U.S. 321 (1977) .... . 16
Douglas v. Hampton, 512 F.2d 976 (D.C. Cir.

1975) ________________ ____ ____ ______ _________  8
Federal Trade Commission v. Simplicity Pattern

Co., 360 U.S. 55 (1959) ...... ................ ..................  6, 15
Firefighters Institute v. City of St. Louis, 549 F.2d 

536 (8th Cir.), cert, denied, 434 U.S. 819
(1977) ; 616 F.2d 350 (8th Cir. 1980) ............ . 16

Furnco Construction Cory. v. Waters, 438 U.S.
567 (1978) _________ ____ ____ ____________ __ _ 5,9

Griggs v. Duke Power Co., 401 U.S. 424 (1971).... 4, 7, 8,
10, 15

Phillips v. Martin Marietta Corp., 400 U.S 542
(1971) ...............       9

Scott v. City of Anniston, 597 F.2d 897 (5th Cir.),
cert, denied, 446 U.S. 917 (1979) ........................  16

United States v. City of Chicago, 573 F.2d 916
(7th Cir. 1978) .....................      16

STATUTES
Civil Rights Act of 1964, Title VII, as amended,

42 U.S.C. (Supp. I ll) §§ 2000e et seq., Section 
7 0 3 (h )........................................................................  6,15



V

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS Page
S. Gould, T h e  M is m e a s u r e  of M a n  (1981) .........  8
H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971).. 16
S, Rep. No. 92-415, 92d Cong., 1st Sess. (1971) .... 16
Uniform Guidelines on Employee Selection Proce­

dure, 28 C.F.R. § 50.14 (1978) ....................... ----- 4, 7



In The

(Emtri at tltr H&niteb BtnUs
October Term, 1981

No. 80-2147

State of Connecticut, et al.,
Petitioners,

Winnie Teal, et al.

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

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

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE
The Lawyers’ Committee for Civil Rights Under Law 

was organized in 1963 at the request of the President 
of the United States to involve private attorneys in the 
national effort to assure civil rights to all Americans. 
The Committee has, over the past eighteen years, enlisted 
the services of over a thousand members of the private 
bar in addressing the legal problems of minorities and 
the poor. It has participated in a number of cases seek­
ing, under Title VII of the Civil Rights Act of 1964,



2

to redress employment discrimination in the public and 
private sectors. The impact of paper and pencil tests 
upon minority opportunities for employment has been 
of considerable concern to the Committee, particularly 
in the recent case of Lnevano v. Campbell, Civ. Action 
No. 79-0231 (D.D.C.), involving the validity of the so- 
called PACE test for professional employment in the 
federal service. Since the “ bottom line” theory at issue 
in this case has general implications for both public 
and private employment opportunities, the Committee 
would like to present its views to the Court.

Written consents of both parties to the submission of 
this brief are being filed with the Clerk in accordance 
with Rule 36.1 of the Rules of this Court.

STATEMENT

The facts essential to the determination of the issue 
before this Court are not in dispute and appear for the 
most part in the opinion of the Court of Appeals.

The four respondents are black employees of the 
Department of Income Maintenance of the State of 
Connecticut who were promoted provisionally to the posi­
tion of Welfare Eligibility Supervisor and served in that 
capacity for periods in excess of two years. To attain 
permanent status in such positions, they had to pass a 
written examination. Only if they passed that examina­
tion would they become part of an eligibility pool from 
which permanent appointments would be made on the 
basis of various criteria, including past performance, 
recommendations of supervisors, interest in the work, 
seniority, etc.

Respondents failed the written test and thus became 
ineligible for further consideration for promotion to posi­
tions as supervisors. Of the 329 persons who took the 
test, 48 were identified as black and 259 as white.



3

With a passing grade set at 65 / 54.17% (26 in num­
ber) of the black candidates and 79.53% (206 in num­
ber) of the white candidates passed the examination. 
The passing rate for black candidates was thus 68% of 
the passing rate for whites.

The results of the examination were announced in 
March 1979. In April, respondents instituted this action 
against the State of Connecticut and the individual 
defendants, alleging inter alia a violation of Title VII 
of the Civil Rights Act of 1964, as amended (42 U.S.C. 
§ § 2000e et seq.) by the requirement, as an absolute con­
dition for consideration for promotion, of the passing of 
a written test which excluded blacks in disproportionate 
numbers and which was not job related. While the case 
was pending, the State made appointments to the per­
manent supervisory positions. Forty-six persons, 11 
blacks and 35 whites, were appointed. Thus, 23% of the 
blacks and 13.5% of the whites who began the selection 
process were promoted.

The district court, relying on the opinion of Judge 
Newman in Brown v. New Haven Civil Service Board, 
474 F. Supp. 1256, 1260 (D. Conn. 1979), dismissed the 
Title VII claim. It adopted the reasoning of the New 
Haven decision that, even though the passing rates on 
the examination showed a prima facie case of adverse 
impact upon minorities, the “ ultimate results of the 
entire hiring process, however, show that no prima facie 
case of adverse impact is established.”  It therefore found 
it unnecessary to rule upon the state’s claim that the 
examination was job-related. (R. 19-20.)

The court of appeals reversed. It held that the dis­
trict court erred in ruling that the results of the written 
examination alone were insufficient to support a prima

1 The passing grade was set at 65, although the mean score on 
the examination was 70.4 because black candidates had a mean 
score 6.7 percentage points lower than the white candidates.



4

facie case of disparate impact in violation of Title VII. 
It drew a distinction between the situation where all the 
candidates participate in the entire selection process 
and the overall results reveal no significant disparity; 
and the situation, such as that in the instant case, where 
“ an identifiable pass-fail barrier denies an employment 
opportunity to a disproportionately large number of 
minorities and prevents them from proceeding to the 
next step in the selection process.” To deny the applica­
bility of Title VII in the latter situation, the court said, 
would be to interpret Title VII to protect faceless groups 
rather than individuals. It noted:

Where an employment practice forecloses a dispro­
portionate number of persons in a protected group 
from a job, it matters very little to the victimized 
individuals that their group as a whole is well rep­
resented in the group of hirees.

Accordingly, the court of appeals remanded the cause 
to the district court for a determination of the job­
relatedness of the examination in question.

SUMMARY OF ARGUMENT 
I

The district court’s decision dismissing the cause of 
action and the court of appeals’ opinion reversing it both 
proceed on the assumption that, if the test at issue were 
considered by itself, it would be deemed prima facie dis­
criminatory under the principles announced in Griggs v. 
Duke Power Co., 401 U.S. 424 (1971), and the 1978 
Uniform Guidelines on Employee Selection Procedures. 
The only reason that the district court deemed it unnec­
essary to pass on the job-relatedness of the test was 
that, in the final selection, the State of Connecticut ap­
pointed a number of blacks, other than these respondents, 
to the vacant supervisory positions. Thus, the essence of 
the position of petitioners, which the government sup­
ports, is that an employer may discriminate against one 
group of blacks if it favors another group.



5

The court of appeals properly ruled that discrimination 
against these respondents on the basis of race cannot be 
justified because other members of their race received 
favorable treatment. If an employer decided that it 
would employ only light skinned blacks, it would be dis­
criminating against dark skinned blacks on the basis 
of their race, no matter how many light skinned blacks 
it employed. The test here operated in the same fashion. 
It excluded from consideration for promotion on the 
basis of race a particular group of blacks who, in the 
present posture of the case, must be regarded as lacking 
only non-job-related characteristics. This is discrimina­
tion on the basis of race, no matter how many other 
blacks were ultimately appointed.

The fact that the employer achieved a racially bal­
anced work force in its ultimate hiring policy does not 
excuse racial discrimination against individuals who were 
excluded from consideration by the discriminatory exam­
ination. See Fumco Construction Co. v. Waters, 438 U.S. 
567, 579 (1978).

It is the barrier effect of the test at issue which lies 
at the heart of the court of appeals’ decision. If the test 
here were only one part of the selection process which 
did not bar respondents from further consideration, their 
experience, supervisory recommendations, interest in the 
job, and seniority may well have overcome the effect of 
the test. In that situation, the “ bottom line”  theory 
makes sense. It is not reasonable to try to determine 
the impact of a test or any other intermediate step in 
a multi-faceted process if the overall result shows no 
discriminatory impact. There is, however, a significant 
difference between the need to consider the fairness of 
one of many factors entering into a total result and the 
need to consider the fairness of a distinct criterion 
which, if not satisfied, totally excludes further consid­
eration.



6

The government’s policy of not bringing enforcement 
actions if the overall effect of a selection process is not 
exclusionary is admittedly an exercise of prosecutorial 
discretion. Whether the exercise of that discretion is 
wise or unwise, it cannot determine the individual rights 
of these respondents.

The fallacy of petitioners’ position is that it interprets 
Title VII with respect to disparate impact cases as pro­
tecting group, but not individual rights. Title VII’s 
primary focus, however, is on the individual. City of Los 
Angeles, Department of Water and Power v. Manhart, 
435 U.S. 702 (1978). Respondents, as individuals, have 
the right not to have their opportunity for promotion 
cut off by a racially biased, non-job-related test.

II

The contention that the test at issue is not subject 
to attack because it falls within the protection of Section 
703(h) of Title VII as part of a bona fide merit system 
is not properly before this Court, since the issue was 
not decided below and was not raised in the petition for 
a writ of certiorari. Federal Trade Commission v. Sim­
plicity Pattern Co., 360 U.S. 55, 62 n.4 (1959).

The contention is, in any event, without merit. It was 
specifically rejected by the Second Circuit in Association 
against Discrimination v. City of Bridgeport, 647 F.2d 
256 (2d Cir. 1981), petitions for oert. filed, 50 U.S.L.W. 
3134 (Aug. 25, 26, 1981). Other courts of appeals have 
assumed that racially biased non-job-related civil service 
examinations are subject to attack under Title VII. The 
legislative history of the 1972 amendments, which 
brought state and local governments under Title VII, 
shows that Congress, which was well aware of the Griggs 
standard, intended to have it apply to state and local 
examinations.



7

ARGUMENT

I

THE RIGHTS OF THE INDIVIDUAL RESPOND­
ENTS UNDER TITLE VII WERE VIOLATED BY A 
TEST WHICH DISCRIMINATORILY EXCLUDED 
THEM FROM CONSIDERATION FOR PROMOTION 
ON THE BASIS OF RACE.

A. The “Bottom Line” Interpretation Urged by Peti­
tioners and the Government Fails to Give Effect to 
Congress’ Purpose in Title VII of Protecting All 
Individuals from Racial Discrimination by Employ­
ers to Whom the Act Applies.

The essence of the “ bottom line” theory, as interpreted 
by the district court and supported by petitioners and 
the government, is that an employer may exclude one 
group of blacks on the basis of race if it favors another 
group of blacks for the same position. Both the district 
court and the court of appeals, in their decisions, recog­
nized that if the test at issue was the sole determinant 
for promotion, the disparity in the rate of success of 
black and white candidates established a prima facie 
case of race discrimination under the principles enunci­
ated by this Court in Griggs v. Duke Power Co., 401 U.S. 
424 (1971), and Albemarle Paper Co. v. Moody, 422 
U.S. 405 (1975). Those principles have been given spec­
ificity by the government’s 1978 Uniform Guidelines on 
Employee Selection Procedures, which provide that a 
selection rate for any race which is less than 80 % of the 
group with the highest rate will generally be regarded 
as evidence of adverse impact. 28 C.F.R. § 50.14 
(1978).2

2 Petitioners suggest that, contrary to the above cases and the 
guidelines, the pass-fail ratio should not be enough to establish a 
prima facie case of discrimination without a showing of “ invidious­
ness.” (Pet. Br. 16-18.) As we discuss infra with respect to peti­
tioners’ contention that the tests are protected as part of a merit 
system, no such issue is properly before the Court in this case.



If the State of Connecticut had, for any reason, failed 
to fill the positions at issue before the case was tried, 
there is no doubt that the district court would have found 
it necessary to decide the job-relatedness of the test under 
attack. The only reason the district court found it 
unnecessary to determine job-relatedness was that, in the 
overall selection, a number of blacks who had passed the 
test were appointed as supervisors.3 Thus, the discrim­
inatory effect (which must be presumed at this juncture) 
of the test on these respondents is sought to be justified 
on the basis of the treatment of other blacks.4

8

No such issue was decided by the courts below and no such issue 
was raised in the petition for a writ of certiorari.

In any event, petitioners’ contention is without support. While 
Griggs v. Duke Power, supra, arose in a state which historically 
had operated segregated school systems, no court of which we are 
aware has held that fact to be controlling. Kacially biased tests 
have not, unfortunately, been confined to any part of the country. 
Even the federal government has failed adequately to consider the 
factor of racial bias in some of its tests. See Douglas v. Hampton, 
512 F.2d 976 (D.C. Cir. 1975). For a discussion of the historical 
mistakes in examinations and the need for care; in the testing 
process, see S. Gould, The Mismeasure op Man (1981).

As we discuss infra, Congress, when it amended Title V II to 
cover state and local governments, intended such entities to be 
subject to the same standards as private employers.

Petitioners’ arguments as to the Tower amendment were discussed 
and rejected by this Court in Griggs, supra. That decision also 
established that a showing of intent to discriminate is not neces­
sary to prove a violation of Title V II based on disparate impact.

3 W e do not mean to suggest that the state' acted improperly in 
filling the positions or that it did so with intent to avoid a determi­
nation of the validity of the test. W e merely emphasize that 
adjudication of the test on its own merits was deemed unnecessary 
because of later occurring events.

4 The state suggests that there is no evidence that the appoint­
ment of blacks who p-assed the test to fill the vacant positions was 
the result of affirmative action. This is irrelevant. Whatever the 
reason for the high percentage of blacks appointed, the fact is that 
the adverse impact of the test on respondent blacks is sought to be 
justified by the appointment of other blacks.



The court of appeals properly ruled that discrimina­
tion against some individuals on the basis of their race 
cannot be justified because other members of their group 
received favorable treatment. If an employer decided 
that he would employ only light-skinned blacks, he would 
be discriminating against dark-skinned blacks because of 
their race, no matter how many light-skinned blacks he 
employed. See Phillips v. Martin Marietta Corp., 400 
U.S. 542 (1971), where the Court recognized that a rule 
applying only to married women with children was dis­
crimination on the basis of sex even though female em­
ployees without children were not affected thereby. The 
test at issue here, assuming as we must for present pur­
poses that it was racially biased, operated in much the 
same way. It excluded from consideration for promotion 
on the basis of race a particular group of blacks who 
did not possess non-job-related characteristics. This is 
discrimination on the basis of race, no matter how many 
blacks were ultimately appointed. As this Court said 
in Fumco Construction Corp. v. Waters, 438 U.S. 567, 
579 (1978), “ A racially balanced work force cannot 
immunize an employer from liability for specific acts of 
discrimination.”  The Court added (438 U.S., at p. 579) :

It is clear beyond cavil that the obligation imposed 
by Title VII is to provide an equal opportunity for 
each applicant regardless of race, without regard 
to whether members of the applicant’s race are al­
ready proportionately represented in the work force.

While Fumco referred to existing racial balance in 
the work force, the principle it enunciated applies here. 
The fact that the employer achieves a racially balanced 
work force in its ultimate hiring policy does not excuse 
racial discrimination against individuals who were ex­
cluded by the discriminatory examination.

The district court, and the Brown opinion on which it 
relied (see supra, p. 3 ), drew a distinction between 
intentional discrimination against particular individuals 
in the selection process and the situation here, where the

9



10

exclusion of particular individuals comes from the dis­
parate impact of a selection device, such as a test. They 
admit that, under Furnco, supra, intentional discrimina­
tion against particular black individuals cannot be jus­
tified by the fact that a sufficient number of other blacks 
are ultimately selected. A barrier, however, remains a 
barrier, whether or not it was intended as such. A  per­
son kept out by a closed door is as much excluded by a 
door blown shut as by one deliberately closed. This Court 
established in Griggs v. Duke Power Co., supra, that the 
adverse impact of a barrier, such as a racially biased, 
non-job-related test, constituted a violation of Title VII, 
whether or not the employer who used it intended to dis­
criminate. Since that is so, an individual member of a 
minority race has a right, under Title VII, not to be 
excluded from promotion by a racially discriminatory, 
non-job-related test, whatever the intentions of the em­
ployer who gives the test. Title VII confers rights on 
individuals, not only on groups. A barrier to individual 
advancement, if it is based on race, cannot be justified 
because some other members of the race have managed 
to leap that barrier.

If, in a litigated case, a test was adjudicated to be 
racially biased and non-job related under the standard 
of Griggs, a court, in fashioning relief, would not make 
the plaintiffs whole by requiring only that the employer 
hire a number of blacks who had managed to pass the 
racially biased test. How then can the appointment of 
blacks who passed the test be a proper consideration in 
the determination of the validity of the test?

B. The Decision of the Court of Appeals Below Does 
Not Require Separate Validation of Individual Test 
Items or Factors Applied to All Applicants in a 
Single-Step Selection Process.

It is the barrier effect of the test on respondents 
which lies at the heart of the decision of the court of 
appeals. The “bottom line” theory, which looks to the 
overall result of a selection process in determining ad­



11

verse impact, makes sense where no one aspect of the 
process is given controlling weight. As the court of 
appeals pointed out, where “ all of the candidates partic­
ipate in the entire selection process and the overall re­
sults reveal no significant disparity of impact, scrutiny 
of individual questions or sub-tests would conflict with 
the dictates of common sense.” The situation, it noted, 
is different “ where an identifiable pass-fail barrier denies 
an employment opportunity to a disproportionately large 
number of minorities and prevents them from proceed­
ing to the next step in the selection process.”

Thus, if the test here were only one part of the selec­
tion process which did not bar respondents from further 
consideration, the district court would have been justi­
fied in declining to determine the impact of the test 
alone. If experience, attitude, seniority, etc. were 
weighed with the test, it could not be said that the test 
alone was the barrier to the promotion of respondents. 
It might very well be that other factors would have 
overcome whatever deficiencies were shown by the test. 
It is manifestly different, with respect to the individuals 
involved, that the test here was an absolute bar to their 
further consideration for the position, so that none of 
the other factors in their favor could be considered. If 
five persons had to conduct interviews to rate a candi­
date, even if one had an unconscious bias against a par­
ticular type of minority, a total result showing no signifi­
cant disparity would justify the conclusion that the vari­
ous interviewers counterbalanced each other. The situa­
tion would be entirely different if the one interviewer 
determined whether candidates would be further con­
sidered and there was a significant disparity in the 
number of blacks to be further considered. If he were 
shown to be biased against a particular kind of minority 
because of some non-job-related characteristic, the selec­
tion process would manifestly be tainted no matter how 
many other minorities of the kind he approved of were



12

ultimately selected. There is, in short, a big difference 
between absolute exclusion and consideration of one of 
many factors. For this reason, it does not follow, as 
petitioners would have it (Pet. Br. 27), that the opinion 
below would require each question on a test or each step 
in a many-faceted selection process to be subject to 
analysis for racial impact. It is only where one distinct 
step in the process is determinative of the right to fur­
ther consideration that such a step could be said to be a 
barrier to employment opportunity. If it is such a bar­
rier, and the barrier is discriminatory against individuals 
on the basis of their race, then, as the court of appeals 
held, Title VII grants such individuals the right to have 
that barrier removed.

The government suggests that, even if  one step, such 
as a test, is not an absolute barrier to further con­
sideration, it may in some instances operate as such 
because it may be given enough weight to turn the 
balance against an individual. It is true that perfect 
justice may not always be achieved in a multi-faceted 
process because undue weight may be given to some 
factor. But the fact that perfect justice is not always 
possible is hardly a basis for allowing gross injustice to 
go unchallenged. That it may be realistically impossible 
to evaluate each component of a multi-faceted process 
hardly justifies the failure to judge the fairness of a 
particular, defined step in the process which determines 
the right of particular individuals to be further con­
sidered.

The fallacy of petitioners’ position is that they inter­
pret Title VII with respect to disparate impact cases 
as protecting group rights, but not as conferring rights 
upon particular individuals. As the court of appeals 
stated, their position would interpret Title VII as pro­
tecting “ faceless groups,”  not persons. But Title VII 
does confer rights on individuals. It gives each individual



13

injured by discriminatory action the right to file charges 
and to bring an action to remedy the injury which such 
individual personally suffered as the result of the dis­
criminatory action. City of Los Angeles, Department 
of Water and Power v. Manhart, 435 U.S. 702, 708 
(1978). As the Court there said, the “ statute’s focus 
on the individual is unambiguous.”  It is true that, in 
proving a disparate impact case, it is necessary to look 
at group statistics to determine whether a particular 
requirement unfairly acts as a barrier to a protected 
class. But the fact that group disparity is a means 
of proving that a barrier exists does not require that 
only the group, and not the individual kept out by that 
barrier, has the right to seek removal of the barrier. 
Rather, as the Manhart case holds, individuals suffering 
from discriminatory treatment have the right to seek 
redress for the injury so sustained.

C. The Uniform Guidelines Adopt A “Bottom Line” 
Theory to Guide the Exercise of Prosecutorial Dis­
cretion But They Do Not Constitute An Interpreta­
tion of the Substantive Meaning Of Title VII to be 
Followed by the Courts.

The 1978 Uniform Guidelines on Employee Selection 
Procedures, supra, state that, as a matter of prosecu­
torial discretion, the federal enforcement agencies will 
not, if  the overall effect of a selection process is not 
exclusionary, examine the individual components of that 
process for adverse impact. That policy does not deter­
mine this case. The policy, which is admittedly an exer­
cise of prosecutorial discretion, does not fix the rights of 
individuals. Prosecutorial discretion does not define or 
determine rights. If the United States Attorney for the 
Southern District of New York decided that his office 
should not prosecute cases of cars stolen in New Jersey 
and transported to New York, that might very well be 
a sound exercise of discretion in making effective use of 
limited resources. It would not make the interstate



14

transportation of the stolen vehicle legal or prevent 
the individual owner, if he could identify the thief, from 
seeking to recover damages sustained as the result of 
the theft. So here, whether the government’s policy is 
wise or unwise, the claims of the individual respondents 
cannot be affected thereby.

The opinion of Judge Newman in the Brown case, on 
which the district court relied, urged the adoption of 
the “ bottom line” theory as a means of encouraging 
affirmative action. But, as petitioners themselves suggest 
in stating that there is no proof that the appointments 
here were influenced by affirmative action principles, 
this case does not involve any issues as to affirmative 
action. Presumably the government believes that its 
“ bottom line” approach will encourage employers to take 
affirmative action to avoid the necessity of validating 
such tests as they may wish to use. Whether that policy 
is wise or unwise is not a matter which is material to 
the rights of these respondents. The issue of when it is 
appropriate for an employer to undertake affirmative 
action to remedy past discrimination against a class or 
to seek to achieve an integrated work force is not 
presented by this case. Nor is this an appropriate 
vehicle to decide whether it is better for minorities as a 
whole to be subject to fair employment procedures rather 
than to the continuation of an unfair procedure by the 
adoption of compensating measures. What is at issue 
here is the right of particular individuals not to have 
their opportunity for promotion cut off by a racially 
biased, non-job-related test. The court of appeals prop­
erly held that, if  the test at issue here is such a test, 
respondents have personally been injured thereby regard­
less of how many blacks were appointed to the position. 
Respondents thus have a right, under Title VII, to have 
a court determine whether the test is valid or whether it 
is an unfair, racially biased barrier to their consideration 
for promotion.



15

II

A RACIALLY DISCRIMINATORY, NON-JOB- 
RELATED PROMOTION TEST IS NOT A BONA 
FIDE MERIT SYSTEM WITHIN THE PURVIEW  
OF SECTION 703(h) OF TITLE VII

Petitioners contend (Pet. Br. 28-37) that, whether or 
not the promotion test at issue has a disparate impact 
on blacks within the principles of Griggs v. Duke Power, 
and the Uniform Guidelines on Employee Selection Pro­
cedures (see supra p. 7), the test is not subject to 
attack because it falls within the protection of Section 
703(h) of Title VII. That section states that it is not 
an unlawful employment practice for an employer to 
apply different standards pursuant to a bona fide merit 
system, provided such differences are not the result of 
an intention to discriminate. The argument based on 
Section 703(h) (Pet. Br. 28-37) is not properly before 
this Court. The contention was not, so far as we are 
able to ascertain, advanced in the district court or the 
court of appeals. It certainly was not decided by either 
court. It was not raised as a question presented or 
argued in the petition for a writ of certiorari. This 
Court does not consider issues not decided below and not 
raised in the petition for a writ of certiorari. Federal 
Trade Commission v. Simplicity Pattern Co., 360 U.S. 
55, 62, n.4 (1959).

The contention that Section 703(h) protects the test 
at issue is, in any event, without merit. The Court of 
Appeals for the Second Circuit has expressly rejected 
a similar contention, pointing out that there are two 
reasons why the merit system exemption of Section 
703(h) does not apply to biased, non-job-related civil 
service examinations. Association against Discrimination 
v. City of Bridgeport, supra p. 6. The court noted that, 
where an examination serves to discriminate against 
minorities, it is being used to discriminate. More funda­
mentally, the court held (247 F.2d at p. 273), “ it would



16

defy reason to characterize as a ‘bona fide merit system* 
a test that does not measure the fitness of those who take 
it for the positions to be filled according to its results.”

While other circuit courts of appeals have not dealt 
specifically with the merit system contention which peti­
tioners urge here, they have upheld attacks on civil serv­
ice examinations as discriminatory under Title VII. 
Firefighters Institute v. City of St. Louis, 549 F.2d 506 
(8th Cir.), cert, denied, 434 U.S. 819 (1977); see also 
id., 616 F.2d 350 (8th Cir. 1980), Scott v. City of 
Anniston, 597 F.2d 897 (5th Cir.), cert, denied, 446 
U.S. 917 (1979) ; Blake v. City of Los Angeles, 595 F.2d 
1367 (9th Cir. 1979), cert, denied, 446 U.S. 928 (1980) ; 
United States v. City of Chicago, 573 F.2d 916 (7th Cir. 
1978).

In ruling that the Griggs standard (which does not 
require a showing of intent to establish a violation of 
Title VII based on disparate impact) applies in actions 
against states and municipalities, the Ninth Circuit in 
Blake, supra, and the Seventh Circuit in City of Chicago, 
supra, relied on the legislative history of the 1972 
amendments to Title VII which brought state and local 
governments within the coverage of Title VII. That 
legislative history shows that Congress enacted the 1972 
amendments after taking notice that “wide spread dis­
crimination against minorities exists in State and local 
government employment.”  H.R. Rep. 92-238, 92d Cong., 
1st Sess., p. 17 (1971). It referred to a study by the 
U.S. Commission on Civil Rights which had found dis­
crimination in state and local governments, north and 
south, perpetuated by various means, including “ invalid 
selection techniques”  {ibid.). As this Court said in 
Dothard v. Rawlinson, 433 U.S. 321, 332 n.14 (1977), 
“ Congress expressly indicated the intent that the same 
Title VII principles be applied to governmental and 
private employers alike. See H.R. Rep. No. 92-238, 92d 
Cong., 1st Sess., p. 17 (1971) ; S. Rep. No. 92-415, 92d 
Cong., 1st Sess., p. 10 (1971). Thus Congress, which



17

was well aware of the Griggs standard with respect to 
tests, intended those standards to apply to state and local 
governments. It manifestly did not deem such tests 
to fall within the exemption of the 1965 Act for bona 
fide merit systems.

CONCLUSION

For the reasons stated, the judgment of the court of 
appeals should be affirmed.

Respectfully submitted,

M a x im il ia n  W . K e m p n e r  
R ic h a r d  C. D in k e l s p ie l  

Co-Chairmen
W il l ia m  L . R o b in so n  
N o r m a n  J. C h a c h k in  *
B eatr ice  R osenberg

L a w y e r s ’ Co m m it t e e  for 
C iv il  R ig h t s  U nder  L a w  

783 15th Street, N .W ., Suite 520 
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Amicus Curiae 
* Counsel of Record