Griggs v. Duke Power Company Brief for Appellants
Public Court Documents
January 1, 1968

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Brief Collection, LDF Court Filings. Griggs v. Duke Power Company Brief for Appellants, 1968. 96f2bfdd-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/859f9edd-e1b5-4b59-9b99-ca1be4eda744/griggs-v-duke-power-company-brief-for-appellants. Accessed May 17, 2025.
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I n the luttei* States (to rt of Appeals F ob the F ourth Circuit No. 13,013 W illie S. Griggs, et al., Appellants, —v.— D uke P ower Company, a Corporation, Appellee. APPEAL FROM T H E U N ITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF NO RTH CAROLINA ■GREENSBORO DIVISION BRIEF FOR APPELLANTS Conrad 0. Pearson 203% East Chapel Hill Street Durham, North Carolina J. LeVonne Chambers Chambers, Stein, Ferguson & Lanning 216 West Tenth Street Charlotte, North Carolina Sammie Chess, J r. 622 East Washington Drive High Point, North Carolina J ack Greenberg J ames M. Nabrit, III Norman C. Amaker Robert Belton Gabrielle A. K irk 10 Columbus Circle New York, New York Attorneys for Appellants George Cooper 435 West 116th Street New York, New York Albert J. Rosenthal 435 West 116th Street New York, New York Of Counsel I N D E X B rief : Questions Involved...................................................... . 1 Statement of the Case .................................................. 2 Statement of the F ac ts .................................................. 4 Summary of Argument.................................................. 7 A rgument I. The Transfer Requirements Constitute an Un lawful Double Standard Based on Race .......... 13 II. Even If the High School and Test Require ments Were Imposed Equally on All Em ployees, These Requirements Would Be Un lawful Because They Are Unjustifiably Based on Racial Characteristics .................................. 19 A. The General Principle Regarding- Tests and Educational Requirements — The Need for Proper Study and Evaluation 19 B. The Legal Authorities Regarding Test and Educational Requirements................ 32 C. The Evidence Showing a Lack of Busi ness Need for Duke’s Discriminatory Transfer Requirements ............................ 35 1. The High School Diploma Re quirement ........................ 35 2. The Test Requirement ................... 38 III. Duke’s Discriminatory Practices Derive No Protection From Section 703(h) of Title V II .... 40 PAGE 11 PAGE IV. The Case Should Be Remanded With Directions to the District Court to Fashion an Appropriate Remedy ............................................................... 46 Conclusion ................................................................................... 47 A p pe n d ix : Extracts from Title VII .............................................. 49 Decision of EEOC, Dec. 2, 1966, CCH Employment Practices Guide, Tf17,304.53 ............................. 51 Decision of EEOC, Dec. 6, 1966, CCH Employment Practices Guide, 1117,304.5 .......................................... 53 Mitchell, Albright & McMurray, Biracial Validation of Selection Procedures in a Large Southern Plant, in Proceedings of 76th Annual Convention of American Psychological Association, Sept., 1968 ..................... 56 Order on Validation of Employment Tests by Contrac tors and Subcontractors, 33 Fed. Reg. 14302, at §2(b), 10 (Sept. 24, 1968) ....................................... 58 T able op Cases: Banks v. Lockhead-Georgia Co., 58 Lab. Gas. fl9131 (N.D. Ga. 1968) ........................ 41 Brown v. Board of Education, 347 U.S. 483 (1954) .... 21 Dobbins v. IBEW, 58 Lab, Cas. H9158 (S.D. Ohio 1968) ................................................................ 8,10,16,34 Donahue v. Evy Footwear, Inc., Case 01867-48 ...... 20 Dunlap v. United States, 70 F.2d 35 (7th Cir. 1934) .... 41 Erie Resistor Co. v. N.L.R.B., 373 U.S. 221 (1963) .... 41 Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............. 20 PAGE iii Guinn v. United States, 238 U.S, 347 (1915) ..........13,17 Hicks v. Crown Zellerbach Corp., 58 Lab. Cas. 1(9145 (E.D. La. 1968) .........................................................8,15 Hicks v. Crown Zellerbach Corp., C.A. 16638 (E.D. La. 1967) .................. ............. ...................................... 23 Hobson v. Hansen, 269 F. Supp. 401 (D.D. C. 1967) .... 28 International Chem. Workers v. Planters Mfg. Co., 259 F. Supp. 365 (N.D. Miss. 1966) ......................... 33 Johnson v. Rita Associates, Inc., Case C12750-66 ...... 20 Lane v. Wilson, 307 U.S. 268 (1939) ........................ 13,17 Motorola Decision, reprinted 110 Cong. Rec. 9030-9033 (1964) ........................................................................44,45 Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294 (1933) ........................................................... 33 Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Ya. 1968) .................................................. ....4,8,15,16,41 Rosenfeld v. Southern Pacific Co., 59 Lab. Cas. H9172 (S.D. Calif. 1968) ....................................................... 41 Ross v. Dyer, 312 F.2d 191 (5th Cir. 1963) ................. 17 Skidmore v. Swift, 323 U.S. 134 (1944) ........................ 33 State Commission for Human Rights v. Farrell, 43 Misc. 2d 958, 252 N.Y.S. 2d 649 (Sup. Ct. 1964) ...... 17 United States v. American Trucking* Associations, 310 U.S. 534 (1940) ................................. 33 United States v. Dogan, 314 F.2d 767 (5th Cir. 1963) .... 17 IV United States v. Jefferson County Board of Educa tion, 372 F.2d 836 (5th Cir. 1966), aff’d on rehearing en lane, 380 F.2d 385 (1967) ...... ............................ 33 United States v. Local 189, 282 F. Supp. 39 (E.D. La. 1968) ......................................................................8,16,41 Yolger v. McCarty, Inc., 55 Lab. Cas. IT9063 (E.D. La. 1967) ........................................................................... 8,16 S tatutes: .42 U.S.C. §2000e, et seq. Title VII, Civil Rights Act of 1964 Section 701(b), 42 U.S.C. $2000e(b) ..................... 38 Section 703(a)(2), 42 U.S.C. §2000e(a)(2) ....10,13,32 Section 703(h), 42 U.S.C. §2000e-2(h)-4 ....12,40,43, 45 Section 706(e) ......................................................... 3 Section 706(g), 42 U.S.C. §2000e-5(g) ................. 40,46 Otheb A uthobities : 110 Cong. Rec. 8194 (1964) ......................................... 40 110 Cong. Rec. 13724 (1964) ....................................... 44 110 Cong. Rec. 13505 ..................................................... 44 110 Cong. Rec. 13503-04 ................................................ 44 110 Cong. Rec. 13492 (1964) ....................................... 44 110 Cong. Rec. 9024-42 (1964) ..................................... 43 88th Cong., 1st. Sess., 2-3 (1963) H.R. Rep. No. 570 ............ 32 88th Cong., 1st. Sess., 138-41 (1963) H.R. Rep. No. 914 ..................................................... 32 PAGE V 88th Gong., 1st. Sess. (1963) Hearings on Equal Employment Opportunity before the Subcomm. on Employment & Manpower of the Senate Comm, on Labor & Public Welfare .............. 32 88th Cong., 1st. Sess. (1963) Hearings on Equal Employment Opportunity before the General Subcomm. on Labor of the House Comm, on Education & Labor .............................................. 32 BN A, Fair Employment Practices Guide at 451:842 (New Jersey) .............................................................. 35 1 Cronbach, Essentials of Psychological Testing, 86, 105, 119 (2d ed. 1960) ............................................... 29 CCH, Employment Practices Guide, 7121,060 (Colo rado), 7127.295 (Pennsylvania) ....... ............... ......... 35 CCH, Employment Practices Guide, 718048 EEOC Re lease, Nov. 2, 1968 ........ ............................................. 34 Coleman, J. Equality of Educational Opportunity, 219- 220 (1966) ................ 23 1 Davis, Admin. Law Treatise, §5.06 (1959) .............. 33 Decision of EEOC, Dec. 2, 1966, in CCH, Employment Practices Guide, 7117,304.53 .............. 33 Decision of EEOC, Dec. 6, 1966, in CCH, Employment Practices Guide, 7fl7,304.5 .......................................23, 34 EEOC, Guidelines on Employment Testing Proce dures ................................................ 41 Freeman, Theory and Practice of Psychological Test ing, 88 (3rd. ed. 1962) .............................................. 30 Ghiselli and Brown, Personnel and Industrial Psychol ogy, 187-88 (1955) ............. 29,30 Ghiselli, The Generalization of Validity, 12 Personnel Psychology, 397-398 (1959) ....................................... 28 PAGE VI Ghiselli, E., The Validity of Occupational Aptitude Tests, 137 (1966) ............... ..................................10, 26, 27 Goslin, E. D., The Search for Ability, 137-39 (1963) .... 21 Hearings before the United States Equal Employment Commission on Discrimination in White Collar Em ployment, New York City, Jan. 15-18, 1968, at 46-48, 99, 377, 466 ................................................................ 31 Kirkpatrick, J., et ah, Testing and Fair Employment, 5 (1968) ...................................................................... 23 Lawshe and Balma, Principles of Personnel Testing (2nd ed. 1966) ........ ................................. ................. 30 Lopez, Current Problems in Test Performance of Job Applicants: 1, 19 Personnel Psych. 10-18 (1966) .... 28 Lopez, Evaluating the Whole Man, 2 The Long Island University Magazine, 17-21 (1968) ........................ 28 Mitchell, Albright & McMarray, Biracial Validation of Selection Procedures in a Large Southern Plant, in Proceedings of 76th Annual Convention of Ameri can Psychological Association, Sept., 1968 ..........23, 26 Note, Legal Implications of the Use of Standardized Ability Tests in Employment and Education, 69 Colum. L. Rev. 691, 706, 713 (1968) ..................... 40,41 Order on Validation of Employment Tests by Contrac tors and Subcontractors, 33 Fed. Reg. 14302, at §2(b), 10 (Sept. 24, 1968) .......................................... 35 Ruch, Psychology and Life, 67, 456-57 (5th ed. 1958) .... 30 Ruda and Albright, Racial Differences! on Selection Instruments Related to Subsequent Job Performance 21, Personnel Psych. 31-41 (1968) ............................ 28 PAGE Vll PAGE Science Research Assoc., Inc., a subsidiary of IBM, Business and Industrial Education Catalog, 1968-69, at 4 ............................................................................... 25 Siegel, Industrial Psychology, 122 (1962) ...................... 30 State Commission for Human Rights, 1950 Report of Progress, 40-41, 1951 Report of Progress, 35-36 ...... 20 Super & Crites, Appraising Vocational Fitness, 106 (Rev. ed. 1962) ......................................................... 26 The National Advisory Commission on Civil Disorders (the Kerner Commission), p. 416 (Bantam Books ed. 1968) ................................................................. 24 Thorndike, Personnel Selection Tests and Measurement Techniques, 5-6 (1949) .............................................. 30 Tiffin and McCormick, Industrial Psychology 119, 124 (5th ed. 1965) ....... ............................... ..................... 30 U.S. Bureau of the Census, U.S. Census of Population: 1960, Vol. I, Part 35, Table 4 7 .................................. 21 Wonderlic Personnel Test Manual 2 (1961) —.6, 21, 23, 29, 30 I n the (Euxtrt it! A p p a ls F oe the F ourth Circuit No. 13,013 W illie S. Griggs, et al., —v.— Appellants, D uke P ower C o m p a n y , a Corporation, Appellee. APPEAL FROM T H E U N ITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF NORTH CAROLINA GREENSBORO DIVISION BRIEF FOR APPELLANTS Questions Involved 1. Where an employer, before the effective date of Title VII of the Civil Rights Act of 1964, hired only white persons into its more attractive and better paying depart ments without imposing any educational or testing re quirements upon them, while relegating Negroes to its least attractive department, may it subsequent to the effective date of the Act continue to prohibit its Negro employees from transferring to jobs in its better paying departments unless they meet certain educational or testing require ments—while permitting white employees to remain, and receive promotions, in those departments without meeting such requirements? 2. Does Title VII of the Civil Rights Act of 1964 forbid an employer to use educational and testing requirements 2 in situations where the relationship of such requirements to satisfactory job performance is unknown to the employer and the requirements are known to discriminate against Negroes on the basis of racial disadvantages created by centuries of educational and cultural discrimination? 3. Are the interpretations of Title VII of the Civil Rights Act, relating to testing and educational require ments for employment promulgated by the Equal Employ ment Opportunity Commission, the agency entrusted by the statute with its administration and implementation, so clearly wrong that they should be rejected by the courts? Statement of the Case This is an appeal from the October 9, 1968, judgment of the United States District Court for the Middle District of North Carolina, dismissing a complaint on the merits brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. (R. 43a). On March 15, 1966, appellants, Negro employees of ap pellee, Duke Power Company, at its Dan River Steam Sta tion, tiled charges of discrimination with the Equal Em ployment Opportunity Commission alleging that the com pany was discriminating against them on the ground of race in that (a) Negro employees were restricted to the laborer and semi-skilled laborer classifications, (b) the re quirements for promotion for Negro employees were not required of white employees, and (c) locker rooms, show ers, water fountains and toilets were segregated on the basis of race (R. lb). On September 8, 1966, the Commission found reasonable cause to believe that the company was in violation of Title VII of the Civil Rights Act of 1964 in that an investiga 3 tion disclosed that Negro employees were limited to the lowest job classifications; that the highest paid Negro em ployee earned less than the lowest paid white employee; that Negro employees with as many as 20 years of seniority had not been promoted out of the laborer classification; that white employees who did not have a high school edu cation were promoted to higher paying positions whereas Negro employees who did not have a high school education were required to pass a battery of tests in order to be considered for promotions out of the laborer’s category; that white employees were allowed to work overtime whereas Negro employees were not; and that the company maintained segregated facilities (E. 2b-4b). Subsequently, each of the plaintiffs received notice of his right to sue under section 706(e) of the Act (R. 5b) and this suit fol lowed. The complaint filed on October 20, 1966, alleged that the company was pursuing a policy and practice of limiting the employment opportunities of Negro employees because of race in promotions and transfers, wages, overtime and use of facilities (R. 3a-9a). The claim as to segregated facili ties was subsequently abandoned by the appellants. The company challenged the standing of appellants to bring this action as a class action as the class was desig nated in the complaint and amended complaint filed on April 12, 1967. On June 19, 1967, Judge Edwin M. Stanley entered an order allowing appellants to bring this action as a class action. Judge Stanley ruled that the class which appellants could represent consisted of those Negro per sons presently employed as well as those who may be sub sequently employed by the company at Dan River and that plaintiffs could represent all Negro persons who might thereafter seek employment at Dan River provided that plaintiffs could show at least one Negro plaintiff of the 6 At the present time Duke has apparently dropped its formal policy of restricting all Negroes to the Labor De partment. However, the effect of that policy has largely been preserved by a company policy precluding anyone from transferring to any job in the Coal Handling Depart ment or in one of the “inside” departments unless he either (1) has a high school diploma or (2) achieves a particular score on each of two quickie “intelligence” tests—the 12 minute Wonderlic test and the 30 minute Bennett test (sometimes referred to as the “Mechanical AA” in the Record) (R. 20b-22b). These requirements were adopted without study or evaluation. They apply even to several Negro laborers who have worked in the Coal Handling Department for many years and thereby gained experience and familiarity with the operations of the department (R. 106a, 124b). On the other hand, the requirements have no application to anyone already in the Coal Handling Depart ment or an “inside” department either as a requirement of maintaining his present position or as a condition to further promotion within his departmental area (R. 102a). The practical effect of this dual transfer requirement has been to freeze all but two or three Negroes in low paying jobs as laborers. On the other hand, employees in the “inside” departments, all of whom are white, are free to remain there and to receive promotions in the “inside” de partments to the best paying jobs in the plant (from $3.18 to $3.56 per hour) without meeting either of these requirements (R. 72b, 102a). Within the past three years, for example, white employees with as little as seventh grade educations have been promoted to jobs paying $3.49 per hour in “inside” departments (R. 83b, 127b). Likewise, employees in the Coal Handling Department, all of whom are white except for one Negro high school graduate trans ferred there in 1966, are free to remain on their jobs and 7 be promoted to the top job in the department paying $3.41 per hour.2 The first of these transfer requirements (high school diploma) has been in effect for a number of years (R. 20b). The second (passing a test battery) is a new require ment adopted in September, 1965, in response to a request from a number of white non-high school graduates in the Coal Handling Department who wanted an alternative chance for promotion to inside jobs (R. 85a-87a). Both are being challenged by appellants on the grounds that (1) they impose a special burden on Negro employees at Dan River not equally imposed upon white employees, and (2) that they constitute improper and discriminatory require ments for transfer. Summary of Argument This case presents, as a matter of first impression at the Court of Appeals level, a question that is crucial to the efficacy of Title YII of the Civil Rights Act of 1964. Does the Act cover patterns and practices which effectively dis criminate against Negroes when those patterns and prac tices are superficially color-blind! If the Act does not cover such patterns and practices, as the Duke Power Com pany argues, employers will be free to grant gross prefer ences to whites, and the ability of Title VII to provide true equal job opportunity will be largely nullified. This can be 2 The only whites on whom the transfer requirements have any impact are those who work outside the plant in the Coal Handling Department and the watchman job and wish to transfer inside. It was at the request of these employees that the test alternative was introduced. However, since the Coal Handling Department leads to a top pay rate of $3.41, the impact of transfer requirements on these employees is far less harsh than that on Negroes who are frozen in hopelessly low paid jobs. Moreover, only fifteen of eighty- one white employees are in these outside jobs (R. 73b). 8 seen by examining the impaet of Duke’s transfer require ments, which on the surface are non-racial requirements. These transfer requirements produce a racially discrimina tory pattern or practice for two very important reasons. I. The Transfer Requirements Constitute an Unlawful Double Standard Based on Race. No Negro can obtain a job in any of the better depart ments without meeting the transfer requirements. On the other hand, the better departments are populated by many whites who do not meet these requirements and who are free to remain there and be promoted to high paying jobs in those departments. These are whites who entered the departments before the requirements were imposed. No Negro is in this preferred position because Negroes were racially barred from the better departments during the period before the requirements were imposed. This system, which grants a preferred position to in cumbent whites that is denied to all Negroes, preserves and perpetuates the effects of Duke’s past discrimination and will maintain its white employees in a superior promo tional position for years to come. The District Court found this lawful, holding that Title VII does not cover the present effects of past discrimination. This holding is con trary to all authority under Title VII. See Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968); United States v. Local 189, 282 F. Supp. 39 (E.D. La. 1968); Hicks v. Croivn Zellerbach Corp., 58 Lab. Cas. H9145 (E.D. La. 1968); Dobbins v. 1BEW, 58 Lab. Cas. j[ 9158, at p. 6635 (S.D. Ohio 1968); Vogler v. McCarty, Inc., 55 Lab. Cas. ff 9063 (E.D. La. 1967). The District Court was clearly wrong and this ground alone is sufficient to warrant reversal. 9 II. Even I f the High School and Test Requirements Were Imposed Equally on All Employees, These Require ments Would Be Unlawful Because They Are Unjusti fiably Based on Racial Characteristics. These requirements bar Negroes from better jobs, not because of inability to do the jobs, but because of racial characteristics flowing from cultural and social patterns produced by centuries of discrimination. A. The General Principle Regarding Tests and Educational Requirements. Racial discrimination arises not only when employment decisions are openly based on race, but also when they are based on racial characteristics which prefer whites over Negroes. A long history of open discrimination against Negroes in education and economic opportunity has pro duced a situation where educational requirements or tests related to education (such as those at Duke) operate to prefer whites over Negroes by three or more to one. These racial characteristics may appropriately be used to deny job opportunity to Negroes where necessary to satisfy an employer’s business needs. We do not even wish to suggest that Title VII may require an employer to hire unqualified Negroes. But where these characteristics are relied upon to exclude Negroes to an extent not required by business needs, it is a form of racial discrimination which can and must be barred if Title VII is to be effective. In assessing this crucial question of business need, it should be clear that a test or educational requirement cannot be viewed as a business necessity simply because the employer asserts that he believes it is. Such an unsubstan tiated assertion could, and probably would, be made in every case. Sound business practice requires study and 10 evaluation of job requirements and needed skills and selec tion of procedures to appraise those skills on the basis of rational judgment and careful evaluation. It has been re peatedly demonstrated in hundreds of studies that, when adopted without proper study, tests “do not well predict success on the actual jobs.” 3 The same is true of a high school diploma requirement. For this reason, no test or education requirement grossly preferring whites over Ne groes can fairly be assumed to be a business necessity absent adequate evidence from the employer in question that the requirement is supported by appropriate study and evaluation. B. The Legal Authorities Regarding Tests and Educational Requirements. An examination of Title VII leaves no doubt that racial discrimination accomplished through the subtlety of un necessary educational or test requirements was to be barred. The statute prohibits any limitation or classifica tion of employees which “tends to deprive” or “otherwise adversely affect” status because of race. Section 703(a) (2), 42 U.S.C. §2000e-2(a)(2). In light of the racial character istics on which they are based, an unnecessary educational or test requirement which screens out Negroes at three or more times the rate of whites clearly violates this provi sion. The Equal Employment Opportunity Commission, the agency charged with administration and implementa tion of Title VII, has so ruled, as has the one Federal Court (other than the District Court below) to consider the question. Dobbins v. IBEW, 58 Lab. Cas. U 9158 (S.D. Ohio 1968). The Office of Federal Contract Compliance (enforcer of the President’s Executive Order against dis 8 See E. Ghiselli, The Validation of Occupational Aptitude Tests 51 (1966). 11 crimination by government contractors) has adopted a sim ilar policy. C. The Evidence Showing a Lack of Business Need for Duke’s Discriminatory Transfer Requirements. The crucial issue is the business need for the require ments adopted by Duke. The evidence in this case shows that Duke’s educational and test requirements are no| based on business need and were adopted without proper study and evaluation. A lack of need is clearly demon strated by Duke’s readiness to permit present white em ployees in better departments to stay and be promoted without meeting these requirements. However, even if this irrefutable evidence of lack of need were not present, it would be clear that the requirements are not demanded by business needs. 1. The High School Diploma Requirement—Company officials testified that this requirement was adopted with out study or evaluation and without any particular evi dence that it would serve the employment needs of the com pany. It was adopted on the basis of what can be charitably described as a blind hope. Any company in the world could advance a similar basis for use of a high school diploma requirement or some other educational requirement which similarly preferred whites over Negroes, by three to one. 2. The Test Requirement — This requirement was adopted in an attempt to protect a group of white em ployees in Coal Handling from the burdens of the high school diploma requirement. As in the case of the high school requirement it was adopted without study, evalua tion or validation. Attempts at relating test scoring to job success have been unsuccessful. Its only justification is as a substitute for the high school requirement and if that falls the test requirement must also fall. 12 III. Duke’s Discriminatory Practices Derive No Protection From Section 703(h) of Title VII. Section 703(h) provides that an employer may rely upon a “professionally developed ability test” which is “not de signed, intended, or used to discriminate.” This section of course has no relevance to the high school diploma require ment which clearly violates Title VII for the reasons set out above. While section 703(h) could have relevance to the test requirement, it does not apply because Duke’s tests are not “professionally developed” within the meaning of the statute, are “intended” to discriminate, and are being “used” to discriminate even if not so intended. IV. The Case Should Be Remanded With Directions to the District Court to Fashion an Appropriate Remedy. Because the fashioning of a remedy will require the care ful evaluation of certain employment records, a remand with directions to the District Court is the appropriate relief in this case. 13 ARGUMENT I. The Transfer Requirements Constitute an Unlawful Double Standard Based on Race. It is elemental in the enforcement of fair employment that an employer cannot establish two unequal standards and demand that Negroes meet the higher one while per mitting white to qualify under the lower one. The law for bids not only a categorical refusal to promote a Neg*ro, but also any limitation or classification which would “tend to deprive” him of employment opportunity because of race. See section 703(a)(2), 42 U.S.C. §2000e-2(a)(2). If Duke had openly declared that wdiites and only whites were exempted from its high school and test requirements there would have been no doubt that these requirements would have been an unlawful double standard. Duke has not made such an open declaration. But an examination of the im pact of the transfer requirements shows that the same thing has been done without an open declaration. These transfer requirements are nothing more than the time worn “grand father clause” approach to segregation wearing a modern industrial cloak. Cf. Guinn v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939). The “inside” departments and Coal Handling all lead to well paid jobs on which a satisfying career can be built. The Labor Department is low paid and unpromising for a decent career. Since Duke’s earlier open discrimination had relegated every Negro to the Labor Department prior to the time that the transfer requirements were imposed, every Negro must now meet the requirements to obtain a decent job. Whites, on the other hand, who were in better depart ments prior to imposition of the requirements, are now free 14 to stay on their jobs and to be promoted to the highest pay ing jobs in the plant even if they do not meet the require ments, as a large percentage of whites, in fact, do not (B, 127b). In many situations where a middle or upper level job in one of the better departments is open, a Negro from the Labor Department may be eligible to compete directly against a white for the job.4 The Negro must pass the high school or test requirements. The white normally need not. Thus this case presents a situation where a burden is placed on incumbent Negro employees from which incum bent whites are effectively exempted. Whites are exempted because they have a status that Negroes never had a chance to get due to Duke’s past overt discrimination. The impos ing of this additional burden on Negroes preserves and perpetuates the effects of Duke’s past discrimination by maintaining its white employees in a superior position. The company was appropriately solieitious of the career aspira tions of its white employees who did not meet high school and test requirements. By extending an exemption on a departmental basis they have effectively protected those whites while freezing Negroes in a situation with no career opportunity. We ask only that Negroes be entitled to the same solicitude as whites. The District Court found Duke’s preferential practice lawful, holding that Title VII does not cover the present effects of past discrimination (B. 36a). If this meant only that the Act does not retroactively apply to pre-1965 dis crimination, it would be clearly correct. But to the extent that it means, as the District Court seems to have intended, that an employer who put his Negro employees in an in ferior position before 1965 may freely penalize them now 4 Transferring employees at Dan River are potentially eligible to move into another department above the entry level (R. 38a-40a). 15 as a result of this status, it is in direct conflict with the other authoritative decisions on this question, most im portantly Judge Butzner’s decision in Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Ya. 1968). The key issue in Quarles, as in the present case, was the legality of a department promotional system which con tinued the effect of prior segregation. In Quarles, promo tions were made on the basis of seniority within a depart ment under a longstanding practice. Since the better de partment in the plant had been foreclosed to Negroes until the mid-1960’s, many whites had accumulated substantial departmental seniority in this department while Negroes had little or none. The court in Quarles pointed out the disadvantages suffered under this system by a Negro who had worked for the company for ten years but had been relegated to a less attractive department because of his race, as compared with a white employee who had been with the company for a shorter period but had been allowed to start work in the desirable department. Although the allocation of these employees to their respective depart ments had occurred before the effective date of the Act, con tinued promotions on the basis of departmental seniority after the effective date of the Act caused the Negro to suffer continuing disabilities as to job opportunities in the desirable department. Since operation of the company’s business on departmental lines served “many legitimate management functions” the departmental structure itself could not be found unlawful. 279 F. Supp. at 513. But the use of a departmental seniority system could be unlawful insofar as it perpetuated the effects of past discrimination. The crucial question, as stated by Judge Butzner, was: “Are present consequences of past discrimination cov ered by the act [Title VII] V’ 279 F. Supp. at 510. The answer, after an extensive analysis of the legislative history, was affirmative. The court ordered the company to 16 establish a new promotional system that would not penalize Negroes for lacking the seniority they had been discrimina- torily denied. 279 F. Supp. at 519-21. The situation at Duke’s Dan River Station is virtually indistinguishable from that in Quarles. In both situations the company’s promotional standards appear to be non- racial. However, Negroes have been put at a promotional disadvantage relative to their white counterparts because of past discrimination. In Quarles the promotional dis advantage was lesser seniority. At Duke the disadvantage is even worse—an absolute promotional bar to nonqualify ing Negroes from which whites are effectively exempted. In both cases the question is whether the employer can continue to rely on the discriminatorily created disadvan tage after the effective date of Title VII. We submit that the conclusion reached in Quarles is the only sound one. To hold otherwise, as did the District Court in the present case, would, in Judge Butzner’s words, tend to “freeze an entire generation of Negro employees into discriminatory patterns that existed before the act” in violation of con gressional intent. Quarles v. Philip Morris, Inc., 279 F. Supp. at 516. The decision in Quarles was expressly followed in United States v. Local 189, 282 F. Supp. 39 (E.D. La. 1968), where Judge Heebe held that a job seniority system (similar in effect to the departmental seniority in Quarles) is unlawful under Title VII because it “perpetuates the consequences of past discrimination.” Accord, Hicks v. Crown Zeller- bach Corp., 58 Lab. Cas. U9145 (E.D. La. 1968); Dobbins v. IBEW , 58 Lab. Cas. H9158, at p. 6635 (S.D. Ohio 1968). To the same effect is Vogler v. McCarty, Inc., 55 Lab. Cas. H9063 (E.D. La. 1967) where Judge Christenberry struck down a union requirement that new members be related to old members. This requirement was non-racial on its face, but, as in the Quarles and Duke Power Co. situations, a 17 past practice of Negro exclusion from the union made this requirement unlawfully discriminatory.6 The approach taken by the Duke Power Company—fol lowing a “non-racial” rule which perpetuates the effects of its past discrimination—has obvious parallels in other civil rights contexts. A recent example of this tactic in the vot ing rights area was described in United States v. Bogan, 314 F.2d 767 (5th Cir. 1963). The defendant, a sheriff, is sued instructions that any person coming in to pay a poll tax for the first time, “black or white” be required to see him personally. The rule was reasonable on its face and non-racial. However, the court found that substantially all of the eligible whites had previously been permitted to pay the poll tax and that not one of the eligible Negroes had done so, and drew this conclusion: “Obviously a blanket requirement that all persons who have never paid the poll tax before, that being a rela tively small percentage of white people and all Negroes, who now desire to pay their poll taxes for the first time must see the Sheriff personally operates unequally and discriminatorily against the Negroes.” 314 F.2d at 772. This same principle has been recognized in many other situ ations. See Lane v. Wilson, 307 U.S. 268 (1939) (voting rights); Guinn v. United States, 238 TT.S. 347 (1915) (voting rights); Ross v. Dyer, 312 F.2d 191 (5th Cir. 1963) (school desegregation). The point is clear. Title VII is violated if an employer gives preference in future promotions on the basis of a status discriminatorily denied Negroes prior to the effective date of Title VII. 6 Cf. State Commission for Human Bights v. Farrell, 43 Misc. 2d 958, 965-966, 252 N.Y.S. 2d 649 (Sup. Ct. 1964) (family prefer ence for union membership struck down under New York fair em ployment law). 18 This principle will have only slight consequences on an employer’s promotional arrangements. I t will not limit at all the requirements he may set for promotion, but rather will demand that those requirements be applied equally to all employees without regard to discriminatorily denied status. In the context of this case, the principle means that since Duke has chosen to give white employees in the bet ter departments an exemption from educational and test requirements, and has over the past few years frequently upgraded white employees not meeting the requirements, that same treatment must be extended to Negroes who were discriminatorily excluded from the better departments. That is, the high school and test requirements must be waived with regard to Negroes subjected to this discrimina tory exclusion. It cannot be contended that the appellants are seeking to apply Title YII retroactively or to redress discrimina tion which occurred before the effective date of Title YII. We are not asking that white employees who received jobs or promotions in the attractive departments because of racial discrimination now be made to give them up. All that we seek is that as future opportunities for positions in these departments open up, Negro employees already working at the plant not be subjected to further, additional, future disadvantage because of discrimination in the past. This relief need apply only to Duke’s present Negro em ployees, and only to those who were hired at a time when Negroes were barred from the better departments. These constitute the appellant class in this case. For the future, Duke will presumably not be denying its new Negro em ployees any status because of race. The principle upon which relief is being extended to present employees—that they are victims of past discrimination which is being per petuated—will not apply to these new employees. 19 II. Even If the High School and Test Requirements Were Imposed Equally on All Employees, These Re quirements Would Be Unlawful Because They Are Un justifiably Based on Racial Characteristics. The argument in Section I has demonstrated that the application of educational and test requirements at the Dan River Steam Station is an unlawful reliance on status created by past discrimination to deprive Negroes of future promotional opportunity. However, even if applied equally to whites and Negroes, i.e., with no departmental exemp tions, these particular requirements would create unlawful racial discrimination. These requirements are not justified by Duke’s business needs. Yet the use of these requirements greatly prefers whites over Negroes on the basis of racial characteristics flowing from cultural and social patterns produced by centuries of discrimination. This is a form of racial discrimination which is, and must necessarily he, forbidden by Title VII. If it were not forbidden, any em ployer would be free to grant arbitrary gross preferences to whites and drastically undercut Negro employment op portunity. A. T he General Principles Regarding Test and Educational R equirem ents— T he Need fo r Proper S tudy and Evalua tion. If this were a world with no backlog of racial discrimina tion, it might be possible to effectively enforce a fair em ployment law simply by barring future discrimination that is openly grounded on race. However, this narrow approach will not suffice in the United States where the accumulated impact of centuries of discrimination has created racially derived cultural and social patterns which lead to discrimi nation from seemingly neutral requirements. For example, 20 housing discrimination has produced a pattern of racial ghettos in most cities. Discrimination flowing from a char acteristic of that racial housing pattern (for example, a refusal to hire persons coming from a designated area of the city which approximated the Negro ghetto) would he superficially color blind, but would nonetheless be a form of racial discrimination. This discrimination would be un lawful notwithstanding the fact that, because of the impos sibility of precision in drawing geographical lines and the possibility of future population shifts, it might also exclude some whites and might allow some Negroes to slip through. This was made clear in Gomillion v. Lightfoot, 364 U.S. 339 (1960) where, in striking down gerrymandering tied to racial housing patterns, Mr. Justice Frankfurter pointed out: “It is difficult to appreciate what stands in the way of adjudging a statute having this effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, howsoever spe ciously defined, obviously discriminate against colored citizens.” 364 U.S. at 342.6 Duke has not chosen to base its discrimination on hous ing patterns. Instead it has used educational and cultural patterns which are also directly traceable to race. The ap pellants, who were born black, received a different educa 6 This same principle has been recognized repeatedly in the en forcement of the New York State fair employment law. Employers have been forbidden from insisting on Yiddish-speaking employees (.Donahue v. Evy Footwear, Inc., Case C1867-48 (unlawful pref erence to Jews)) ; from requiring that employees have attended an “out-of-town college” (State Commission for Human Rights, 1950 Report of Progress 40-41, 1951 Report of Progress 35-36 (unlawful national origin discrimination against recent immigrants as well as racial discrimination)) ; and from requiring that employees have prior experience working in an East Side hotel (Johnson v. Bita Associates, Inc., Case C12750-66 (discrimination against Negroes, few of whom have such experience)). 21 tion in segregated schools and grew up in a different cul tural environment than they would have had they been born white. They were forced to drop out of school earlier be cause of economic necessity produced by discrimination and because discrimination led them to conclude that they could not make use of further education. These facts are largely true even for the Negro child born today. They are over whelmingly true for appellants, many of whom finished their schooling before the 1954 Brown decision began the erosion of pervasive practices of segregation and discrimi nation. The resulting inferior education and a tendency to earlier dropping out of school are racial characteristics of appellants just as clearly as is living in a ghetto. Because it is based on these racial characteristics, the high school diploma requirement tends to deny promotion to all but a few Negroes while keeping jobs open for a large proportion of whites. As of the last census, only 12% of North Carolina Negro males had completed high school, as compared to 34% of North Carolina white males.7 At the time of the 1950 census, when the school doors had closed for many of the appellants, the disparity was even worse— 8% for Negroes and 27% for whites.8 The statistics on performance on the tests used by Duke are not much different from these high school diploma figures. Performance on these tests is closely related to educational and cultural background.9 The Wonderlic test is a mixture of questions on vocabulary, mathematics, and other subjects, with a heavy emphasis on vocabulary and reading ability.10 A testee is expected to answer questions such as: 7 U.8. Bureau of the Census, U.S. Census of Population: 1960, Yol. I, P art 35, at Table 47, p. 167. 8 Ibid. 9 See, e.g., D. Goslin, The Search for Ability 137-39 (1963). 10 A copy of the test is reprinted at R. 101b-103b. 22 “No. 11. A dopt A dept—Do these words have 1. Similar meanings, 2. Contradictory, 3. Mean neither same nor opposite?” # * # “No. 19. R eflect R eflex—Do these words have 1. Similar meanings, 2. Contradictory, 3. Mean neither same nor opposite?” * # * “No. 24. The hours of daylight and darkness in S eptember are nearest equal to the hours of daylight in 1. June 2. March 3. May 4. November” The ability to answer such questions is obviously related to formal schooling and cultural background. The vocabu lary questions call for an appreciation of subtle differences in word meanings and parts of speech;11 the question of hours of daylight cannot be answered reliably without knowledge of the vernal equinoxes.11 12 The questions on the Bennett test are not so obviously academic, but they none theless involve an understanding of physical principles 11 We cannot resist comment on the irony of asking about such verbal subleties in a question with such poor grammar. The answer to No. 19 is particularly obscure and indicates the level of difficulty of the exam. “Reflect,” a verb (“to bend or throw back” says Webster) and “reflex,” as an adjective (“turned, bent or reflected back” says Webster) have similar meanings in one sense. But in the sense that it is inaccurate to equate meanings of different parts of speech, they mean neither same nor opposite. 12 The correct answer to No. 24 is March. That is the month of the vernal equinox and has approximately the same daylight as September, the month of the autumnal equinox. Without this scientific knowledge, one might easily guess May or June (begin ning of summer as compared to September as end of summer) or November (closest available month to September). 23 which are taught in school. As a consequence of the educa tional and cultural orientation in these tests, it is univer sally recognized that the average Negro score is much lower than the average white score, particularly in areas such as the South where the disparity in educational op portunity is greatest.13 The Equal Employment Opportu nity Commission has reported one typical case where a requirement of the Wonderlic test plus one of several others, including the Bennett, resulted in 58% of whites passing the tests but only 6% of Negroes.14 These statistics make one very salient point. If require ments such as a high school diploma or passage of “intelli gence” tests could freely be imposed by any employer, every employer in North Carolina and throughout the South could create a promotional preference of three or more to one in favor of whites. The free use of such re quirements, which the District Court’s ruling would permit, would effectively hold Negro employment opportunity to a bare minimum. Title VII boldly proclaims itself an “Equal Employment Opportunity Act.” The free use of requirements based on educational and cultural patterns mocks this title. Negroes are never going to have equal employment opportunity if employers may freely give gross preferences to whites by capitalizing on well established racial patterns. 13 See, e.g., J. Kirkpatrick, et al., Testing and Fair Employment 5 (1968) ; J. Coleman, Equality of Educational Opportunity, 219- 220 (1966). 14 Decision of EEOC, Dec. 2, 1966, in CCH Employment Prac tices Guide 1(17,304.53, reprinted in Appendix hereto at pp. 51-52. See Mitchell, Albright & McMurry, Biraeial Validation of Selection Procedures in A Large Southern Plant, in Proceedings of 76th Annual Convention of American Psychological Association, Sept., 1968, reprinted in Appendix hereto at pp. 56-57 (twice as many whites as Negroes pass Wonderlic) ; Plaintiffs Exhibit No. 25, Hicks v. Crown Zellerbach Cory., C.A. 16638 (E.D. La. 1967) (Study showing that four times as many whites as Negroes pass Wonderlic and Bennett tests). 24 An employer is, of course, permitted to set educational or test requirements that fulfill genuine business needs. For example, an employer may require a fair typing test of applicants for secretarial positions. It may well be that, because of long-standing inequality in educational and cultural opportunities available to Negroes, proportionately fewer Negro applicants than white can pass such a test. But where business need can be shown, as it can where typ ing ability is necessary for performance as a secretary, the fact that the test tends to exclude more Negroes than whites does not make it discriminatory. We do not wish even to suggest that employers are required by law to compensate for centuries of discrimination by hiring Negro applicants who are incapable of doing the job. But when a test or educational requirement is not shown to be based on busi ness need, as in the instant case, it measures not ability to do a job but rather the extent to which persons have ac quired educational and cultural background which has been denied to Negroes. In such a situation, these requirements discriminate against Negroes just as surely as a practice of overt discrimination. The National Advisory Commis sion on Civil Disorders (the Kerner Commission) recog nized this: “Racial discrimination and unrealistic and unnecessarily high minimum qualifications for employment or promo tion often have the same prejudicial effect.” 15 The crucial question, then, is the business need for the requirements in question. In assessing business need, it should be clear that a requirement cannot be viewed as a business necessity simply because the employer asserts that he believes it is. If so, Title VII would be largely nullified because such an unsubstantiated assertion could, and prob- 16 16 Commission Report at 416 (Bantam Books ed. 1968). 25 ably would, be made in every case. Sound business practice, as outlined in the testimony of appellants’ expert witness, Dr. Richard Barrett, calls for an employer to make a care ful analysis of the exact tasks involved in his jobs and to determine precisely what, skills and abilities are needed to carry out those tasks. After such an analysis, the em ployer can select, on the basis of informed judgment, pro cedures which will rationally and fairly appraise those skills. He should then try out those procedures to make certain they are appropriate to the population and jobs at his plant, a process known as validating the procedures (R. 125a-129a).16 Unless this careful procedure is followed, an employer is simply speculating in the dark when he imposes a re quirement. The thing that makes educational and test re quirements so appealing is that they have a superficially plausible relationship to business need. But study has shown that this relationship is nothing more than superfi cial. This has been proven time and again in careful studies by industrial psychologists investigating the “validity” of standard tests such as the Wonderlic and the Bennett in predicting an individual’s ability to perform industrial jobs. This job performance ability is of course the best measure of how well the individual satisfies business needs. It has been demonstrated in hundreds of studies that there * 1 16 Even those in the business of selling tests, who might be ex pected to ease the way for their use, concede the need for such study. See Science Research Assoc., Inc., a subsidiary of IBM, Business and Industrial Education Catalog 1968-69, at 4: “A sound testing program is based on four critical steps: 1. Careful job analysis. 2. An analysis and assessment of essential job character istics. 3. Selection of the test or tests. 4. Testing the tests.” 26 is commonly little or no relationship between test scores and job performance. An eminent industrial psychologist, Dr. Edwin Ghiselli of the University of California, re cently reviewed all the available data on the predictive power of standardized aptitude tests in an attempt to de velop better testing practices. Dr. Ghiselli is a strong sup porter of tests. Yet he was forced to conclude that in trades and crafts aptitude tests “do not well predict suc cess on the actual jobs,” 17 and that in industrial occupa tions “the general picture is one of quite limited predictive power.” 18 In many situations there is actually a negative relationship between test scores and job success.19 What does this mean in practical terms? An example, which is by no means unusual, is contained in a report of a study performed in a large Southern aluminum plant.20 The study showed that scores on the Wonderlic test had no re lation whatsoever to job performance. Negroes were scor ing only half as well as whites on the test, but there was no difference between races in job performance ability. If the test had been blindly used, Negroes would have been grossly screened out without business need and contrary to the interests of the employer. Other studies have shown, for example, that the Wonderlic test is of no significant value in predicting performance of ordnance factory workers or radio assembly workers,21 and that there is a negative rela- 17 E. Ghiselli, The Validity of Occupational Aptitude Tests 51 (1966). 18 Id. at 57. 19 E.g., id. at 46. 20 Mitchell, Albright & McMurry, Biracial Validation of Selec tion Procedures in a Large Southern Plant, in Proceedings of 76th Annual Convention of the American Psychological Association, Sept., 1968, reprinted in Appendix hereto at pp. 56-57. 21 Super & Crites, Appraising Vocational Fitness 106 (Rev. ed. 1962). 27 tionship between test scores and job performance (i . e low scorers on the test do better on the job) for workers in the printing and publishing industry22 and for workers in the manufacture of finished lumber products and transporta tion equipment.23 As to the Bennett, studies have shown, for example, that test scores can be negatively related to job success in occupations such as textile weaving24 * and jobs in the manufacture of electrical equipment.26 These results should not be surprising. Aptitude tests may be expected to predict future academic performance rather well because academic grades are measured by per formance on more tests. But industrial job performance involves a range of skills and abilities entirely divorced from a pristine test room setting. There is an understand ably low correlation between test taking skills and job per formance skills. This is particularly true when the test is being given to a mixed racial group. One of the basic assumptions under lying tests is what might be called the “equal exposure” assumption. A test measures how well a person has learned various skills and information. To the extent an entire group tested has had equal opportunity to learn those skills and information, test scores may sometimes make a reasonably useful prediction of performance on the job. But when this equal exposure assumption is false—as it surely is in the case of comparisons between Southern Negroes and whites—the already shaky basis for test pre 22 B. Ghiselli, The Validity of Occupational Aptitude Tests 137 (1966). 23 Id. at 135, 148. 24 Id. at 132. 26 Id. at 147. 28 dictions is drastically undercut.26 For this reason, as Dr. Barrett testified he found in his Ford Foundation study, a test may predict differently for one racial group than it does for another (R. 140a). Several other recent studies have confirmed Dr. Barrett’s conclusions.27 Of course, tests are not always so poor at predicting. In some cases tests may be reasonably useful. The point is that predicting job performance on the basis of tests or on other measures of educational background is a highly precarious endeavor dependent on a myriad of factors.28 26 This point was made verv clearly by the court in Hobson v. Hansen, 269 F. Supp. 401, 484-485 (D. D. C. 1967) : “A crucial assumption [in evaluating aptitude test scores] . . . is that the individual is fairly comparable with the norming group in terms of environmental background and psycho logical make-up; to the extent the individual is not com parable, the test score may reflect those differences rather than innate differences . . . “. . . For this reason, standard aptitude tests are most precise and accurate in their measurements of innate ability when given to white middle class students. “When standard aptitude tests are given to low-income Negro children, or disadvantaged children, however, the tests are less precise and less accurate—so much so that test scores become practically meaningless. Because of the impoverished circum stances that characterize the disadvantaged child, it is virtually impossible to tell whether the test score reflects lack of ability —or simply lack of opportunity. . . .” (Emphasis added). 27 See, e.g., Lopez, Current Problems in Test Performance of Job Applicants: 1, 19 Presonnel Pysch. 10-18 (1966) ; Lopez, Evaluat ing the Whole Man, 2 The Long Island University Magazine 17-21 (1968) ; Ruda and Albright, Racial Differences on Selection In struments Related to Subsequent Job Performance, 21 Personnel Psych. 31-41 (1968). 28 See Ghiselli, The Generalization of Validity, 12 Personnel Psychology 397-398, 400 (1959) : “A confirmed pessimist at best, even I was surprised at the variation in findings concerning a particular test applied to workers on a particular job. We certainly never expect the repetition of an investigation to give the same results as the 29 Because of the frequency with which test scores show little or no relation to job performance, it cannot be assumed in any particular case that a test is making a useful predic tion without comprehensive supporting evidence based on the employer’s own jobs and population. All standard tests on test use insist on such evidence, known as a validity study, as a prerequisite to using any particular test to deny promotions or jobs.* 29 Even the manual for the Wonderlic Test, upon which Duke relies, unequivocally states: original. But we never anticipated them to be worlds apart. Yet this appears to be the situation with test validities. . . .” “. . . We start off by making the best guesses we ean as to which tests are most likely to predict success and are not at all sur prised when we are completely wrong.” 29 “Some adequate measure of validity is absolutely necessary be fore the value of a test can really be known and before the scores on the test can be said to have any meaning as predictors of job success. . . . The use of unverified tests, whether through innocence or intent, cannot be condoned. . . . For example, if a test is known to measure some psychological ability, such as ability to work with mechanical relations, and certain me chanical performances are required in the performance of the job, the test still cannot be considered valid until the scores have been checked against some index of job success.” Ghiselli and Brown, Personnel and Industrial Psychology 187-88 (1955); “Tests must always be selected for the. particular purpose for which they are to be used; even in similar situations, the same test may not be appropriate . . . Tests which select super visors well in one plant prove valueless in another. No list of recommended tests can eliminate the necessity for carefully choosing tests to suit each situation . . . No matter how com plete the test author’s research, the person who is developing a selection or classification program must, in the end, confirm for himself the validity of the test in his particular situation. . . . In most predictive uses of tests, the published validity coefficient is no more than a hint as to whether the test is relevant to the tester’s decision. He must validate the test in his own school or factory . . . ” 1 Cronbach, Essentials of Psychological Testing 86, 105, 119 (2d ed. 1960) ; “It is of utmost importance that any tests that are used, for employment purposes or otherwise be validated. . . . I t is only 30' “the examination is not valuable unless it is carefully used, and norms are established for each situation in which it is to be applied. (Emphasis added).30 Insofar as a high school diploma requirement is used to measure job performance abilities it is no better than a test and probably much worse. There is so much variation in the quality of high schools, the nature of the courses taken, the grades in the courses and many other factors that a high school diploma is a highly unreliable indicator. While high school diploma requirements have not been given the same extensive scientific study as tests, it should be obvious that if a consistent and highly reliable measure of educational background (such as a test) cannot well measure job performance potential, an inconsistent and unreliable measure of the same thing (such as a high school diploma requirement) cannot do so.31 Many companies when a test has been demonstrated to have an acceptable de gree of validity that it can be used safely with reasonable as surance that it will serve its intended purpose.” ̂ ̂ ̂ ^ “The point to be emphasized throughout this discussion is that no one—whether he is an employment manager, a psychologist, or anyone else—can predict with certainty which tests will be desirable tests for placement on any particular job.” Tiffin and McCormick, Industrial Psychology 119, 124 (5th ed. 1965) . See also e.g., Ghiselli and Brown, supra, at 210; Ruch, Psy chology and Life 67, 456-57 (5th ed. 1958) ; Siegel, Industrial Psychology 122 (1962) ; Thorndike, Personnel Selection Tests and Measurement Techniques 5-6 (1949) ; Freeman, Theory and Practice of Psychological Testing 88 (3rd ed. 1962) ; Lawshe and Balma, Principles of Personnel Testing (2nd ed. 1966) . 30 Wonderlic Personnel Test Manual 2 (1961). 31 A witness for Duke, Dr. Dannie Moffie, explained the signifi cance of a high school diploma in measuring job performance abil ities : “Q. Would the High School education by itself tell you [whether 31 honestly interested in fair employment have decided, after investigating the matter, that a high school diploma re quirement is not worthwhile and should be dropped. This group includes the First National City Bank, Metropolitan Life Insurance Company, American Broadcasting Company and the Chemical Bank New York Trust Company.32 It is sometimes suggested that a high school diploma requirement is useful as a measure of motivation and per severance rather than as a measure of learning. This may he true in some situations involving the selection of new employees and may sometimes justify use of the require ment in such situations (assuming the discrimination in herent in this measure of perseverance is adequately dealt with). In this case, however, Duke has made it clear that the requirement is being used as a measure of learning, not motivation (R. 102a, 188a). This is necessarily so be cause it would be foolish to attempt to use a high school diploma requirement to assess the motivation and perse verance of employees whose work habits have been ob served for several years. This direct in-plant observation enables a far better assessment than any externally based standard. an employee has the ability or trainability for a job at a higher level] ? A. [by Dr. Moffie] A High School education would merely tell you that you have the necessary abilities as defined by a High School education, and if the company feels that this is required in these jobs, that’s all it would tell you.” (R. 188a). In other words, a high school education is a valid measure of job potential only insofar as it can be shown that the abilities “defined by a High School education” are required on the em ployer’s jobs. This cannot be known without examining both the jobs and the nature of a high school education in light of skills needed on those jobs. 32 Hearings before the United States Equal Employment Oppor tunity Commission on Discrimination in White Collar Employment, New York City, Jan. 15-18, 1968, at 46-48, 99, 377, 466. 32 In view of the low validity and reliability of test and education requirements in assessing job performance abili ties, no such requirement that grossly prefers whites over Negroes can be assumed to be based on business need unless supported by proper study and evaluation. Absent such study and evaluation, the use of these requirements con stitutes an unjustified exclusion of Negroes in violation of Title VII. B. T he Legal Authorities Regarding Tests and Educational R equirem ents. An examination of Title VII leaves no doubt that racial discrimination resulting from unnecessary educational or test requirements was to be barred. The statute prohibits any limitation or classification of employees: “which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such indi vidual’s race.” Section 703(a)(2), 42 U.S.C. §2000e-2 (a)(2) (emphasis added). In light of the racial characteristics on which they are based, an unnecessary educational or test requirement which screens out Negroes at three or more times the rate of whites clearly tends to deprive or otherwise adversely affect a Negro’s status. The legislative history of the Act solidly reinforces this conclusion. Title VII was motivated by a serious concern for the waste of human potential resulting from the shock ing conditions of high unemployment and low income among Negroes.33 Congress realized this waste of an im 33 See, e.g., H.R. Rep. No. 570, 88th Cong., 1st Sess. 2-3 (1963); H.R. Rep. No. 914, 88th Cong., 1st Sess. 138-41 (1963) (Concur ring report of Congressman McCulloch and others); Hearings on Equal Employment Opportunity before the General Subcomm. on 33 portant national asset was an economic wound damaging the productivity of the United States, and that it was a social wound producing festering slums and children des tined to misery. Title VII was squarely aimed at ending this waste of human potential by assuring that qualified men could not be denied jobs for racial reasons. This goal could not be accomplished if unnecessarily high job qualifi cations related to race, such as those at Duke, wTere not out lawed ; and Title VII therefore outlawed them. Title VII has been so interpreted by the Equal Employ ment Opportunity Commission. As the agency charged with administration and implementation of the Act, the in terpretations of the EEOC are entitled to the highest re spect, especially when made shortly after passage of the Act.34 The agency has the greatest familiarity with the background and purpose of the law and can best appreciate the overall impact of any interpretation. The EEOC has consistently ruled that tests (including, specifically, the Wonderlic test and the Bennett test) are unlawful, “in the absence of evidence that the tests are properly related to the jobs and have been properly vali dated . . .” Decision of EEOC, Dec, 2, 1966, in CCH, Employment Practices Guide, fT 17,304.53, reprinted in Appendix hereto at pp. 51-52. Labor of the House Comm, on Education & Labor, 88th Cong., 1st Sess. passim (1963); Hearings on Equal Employment Opportunity before the Subcomm. on Employment & Manpower of the Senate Comm, on Labor & Public Welfare, 88th Cong., 1st Sess. passim (1963). 34 See International Chem. Workers v. Planters Mfg. Co., 259 F. Supp. 365, 366-67 (N.D. Miss. 1966); Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315 (1933); Skidmore v. Swift, 323 U.S. 134, 137, 139-40 (1944) ; United States v. American Trucking Associations, 310 U.S. 534 (1940); United States v. Jef ferson County Board of Education, 372 F.2d 836 (5th Cir. 1966), aff’d on rehearing en banc, 380 F.2d 385 (1967); 1 Davis, Admin. Law Treatise, §5.06 and cases cited (1959). 34 This policy has been amplified in the EEOC’s fully devel oped “Guidelines on Employment Testing Procedures” which clearly call for tests to be validated against job per formance.35 The EEOC has ruled the same with regard to educational requirements, i.e., that they must be related to job performance. Decision of EEOC, Dec. 6 ,1966, in CCH, Employment Practices Guide, If 17,304.55,36 reprinted in Appendix hereto at pp. 53-55. The EEOC’s position in this regard is supported by the one Federal court (other than the District Court below) to consider the question. In Dobbins v. IBEW, 58 Lab. Cas. ff 9158 (S.D. Ohio 1968), Judge Hogan was confronted with two tests, one given for entry into a union and the other for entry into an apprenticeship program. He found both tests to be “objectively fair” and “fairly graded.” However, the union entry test was ruled unlawful because not adequately related to job performance needs. Id. at pp. 6624-25. The apprenticeship entry test was upheld be cause it was designed by an expert consultant to fulfill the precise needs of the program. Id. at p. 6629. This interpretation is in accord with that of the Office of Federal Contract Compliance (enforcer of the Presi dent’s Executive Order prohibiting discrimination by gov ernment contractors). The OFCC has recently promul gated an order requiring an employer to produce empirical data showing that tests and educational standards that dis- * 86 35 These guidelines are set out at R. 129b-136b. Duke has made some point of the fact that these are “guidelines” and not manda tory requirements. But this precatory status is only a reflection of the EEOC’s lack of positive enforcement power, i.e., the EEOC can do nothing more than issue “guidelines.” Its position on this issue is firm. 86 See, in addition to the decisions cited in text, EEOC Release, Nov. 2, 1968, in CHH Employment Practices Guide, If 8048. 35 proportionately screen out Negroes are correlated with job performance at the employer’s plant. See Order on Valida tion of Employment Tests by Contractors and Subcon tractors, 33 Fed. Eeg. 14302, at §2(b), 10 (Sept. 24, 1968), reprinted in Appendix hereto at pp. 58-61. Similar policies have also been adopted by state fair employment agencies in Colorado, Pennsylvania and New Jersey.37 C. T he E vidence Shelving a Lack o f Business Need fo r D uke’s D iscrim inatory Transfer R equirem ents. The crucial issue in this case is thus the business need for the test and educational requirements used by Duke to deny promotions at Dan River. The best, and well nigh irrefutable, evidence of a lack of business need for these requirements is Duke’s readiness to permit present white employees to stay and be promoted without meeting them (R. 102a-103a). This double standard belies any claim that business necessity required Duke to deny transfers to any of the fourteen appellants because of a failure to meet the requirements. However, even if this irrefutable evidence of lack of need were not present, the record contains ample additional evidence showing that the requirements are not demanded by business need. 1. The High School Diploma Requirement—The basis on which this requirement is claimed to have been adopted is set out in the testimony of A. C. Theis, Vice-President of Production and Operation for the Duke Power Com pany. Mr. Theis said that the company found that some of its employees had insufficient ability to be promoted to top level jobs. He then explained: 37 See CCH, Employment Practice Guide, 1(21,060 (Colorado), ft 27,295 (Pennsylvania) ; BNA, Fair Employment Practices Guide at 451:842 (New Jersey). 36 “This was why we embraced the High School education as a requirement. There is nothing magic about it, and it doesn’t work all the time, because you can have a man who graduated from High School, who is cer tainly incompetent to go on up, but we felt this was a reasonable requirement . . (R. 93a). “I am perfectly willing to admit to you that there are people without a High School education, who are in the Operating jobs, for instance, at Dan River, who have done a satisfactory job. I ’m not denying that at all. I can’t deny that because we certainly have them there who have done this job, who have been there for over ten years. I don’t think there is anything magic about a High School education . . .” (R. 103a-104a). What, in summary, did Mr. Theis say? (1) That his company found some people incompetent and therefore decided to embrace a high school diploma requirement. (2) That this requirement did not necessarily divide the competent from the incompetent since the com pany finds that many non-high school graduates do quite well and that high school graduates some times turn out incompetent. This explanation could be repeated by any company in the world. It shows nothing more than a whim, a blind hope without any study, evaluation or analysis. The company made no formal job evaluation study, and prepared no sum maries of duties required on jobs or analysis of the qual ifications needed to do those jobs (R. 19b, 57b-71b). It had not undertaken to assess whether Negroes now frozen in 37 the Labor Department have the ability to move up despite their lack of formal education (R. 104a).88 Perhaps we should give Mr. Theis the benefit of the doubt and assume that he meant to say that he thought high school graduates would be better performers than non graduates. But even so, the company apparently made no particular attempt to determine whether high school grad uates were in fact generally performing better than non graduates and, as we have seen, this cannot be blithly as sumed to be the case. If Duke were permitted to adopt a high school diploma requirement on this flimsy basis, any employer in the country would also be absolutely free to adopt such a requirement or some other educational re quirement which would have the same effect of grossly preferring whites over Negroes. A court should rightly be reluctant to interfere in an employer’s business. But, as pointed out earlier, scientific study has shown that measures of education are commonly of little or no value in predicting job performance abilities in an industrial context. When an employer adopts such a requirement without any study or particular evidence that it is relevant to his needs, he is violating good business practice and informed commonsense. He is grossly discrim inating against Negroes on the basis of a whim. It is in tolerable that this should be permitted in a nation claiming 38 38 Mr. Theis also alleged that the company was planning to open nuclear generating plants and was therefore looking for more qualified employees. (R. 93a). I t is grabbing at straws to suggest that this is any excuse for refusing to promote incumbent em ployees such as appellants. There is no evidence that any employee from Dan River has ever been or need be transferred to a nuclear plant or that some jobs of the same complexity as some of those at Dan River will not exist there. Mr. Theis conceded that the job content at the Dan River plant had not changed in complexity over the years. (R. 95a). 38 to have equal employment opportunity. Any court would do the employer, as well as the Negroes, a service in forcing him to take more care in fixing his employment require ments. 2. The Test Requirement—The situation regarding the tests is even less justifiable than that regarding the high school diploma requirement. The claimed basis for this was also set out by Mr. Theis, On July 2, 1965, the effective date of Title VII39 the company had introduced the Won- derlic and Bennett tests as a hurdle which all new em ployees were required to pass.40 For some time, white em ployees in the Coal Handling Department who were not high school graduates had been seeking an alternative means of transferring to an “inside” job (R. 85a-86a). Mr. Theis explained: “I seized on these tests as being a possible way that I could free up these men who were blocked off . . . ” (R. 86a). “In fact, that’s what made me select these 2 tests—to offer them an opportunity to be qualified, because the white employees that happened to be in Coal Handling at the time, were requesting some way that they could get from Coal Handling into the Plant jobs . . .” (R. 199a-200a). 39 The Court below mistakenly asserted that the defendant num bered only 90 to 95 employees and that the Act therefore did not become effective as to it until July 2, 1966. (R. 31a, n, 3). These figures reflected employment at the Dan River plant alone, how ever; the total employment of the defendant was, and is, in ex cess of 6,000 (R. 35b) and the Act became effective as to it on July 2, 1965. Section 701(b), 42 U. S. C. §2000e(b). 40 The legality of this requirement for new employees is not in issue in this case. However, the timing of the adoption of the test requirement and its well known discriminatory impact on Negroes raise a good deal of suspicion. 39 Here again there was no job evaluation or other study or analysis. No attempt to validate the tests was made. (E. 115b). The tests were simply “seized” as a convenient way of helping out a group of whites. This is not because Duke is unfamiliar with the need for validation. They have retained an industrial psychologist to do a validation study of tests throughout Duke’s system (E. 115b-116b). However, he has been unable to validate the tests so far even though he has completed at least one study on 100 to 200 people (E. 179a). He is having the common experience of being unable to produce a correla tion between test scores and job performance abilities. Because it is so clearly the case, Duke apparently con cedes that its tests do not necessarily predict job perform ance. Eather, Duke seems to take the position that the test is used in place of the high school diploma and is valid as a substitute therefor (E. 180a-182a). Since the need for a high school diploma is based on no study or evidence, and is therefore unlawful, a test which measures the same thing and admittedly has not been related to job performance can hardly stand. Because neither the high school diploma requirement nor the test requirement is supported by any study, evaluation or validation which shows that it is justified by Duke’s job performance needs, the gross discriminatory impact on Negro incumbents cannot be ignored. The use of either requirement tends to deprive Negroes of promotional op portunity in violation of Title VII. 40 III. Duke’s Discriminatory Practices Derive No Protec tion From Section 7 0 3 (h ) of Title VII. The educational and test requirements at Dan River con stitute an unlawful racial discrimination as explained at length above. Since these requirements constitute a racial double standard in the Dan River context; and also tend to prefer whites over Negroes, by three to one, it is discrim ination with a vengeance. Duke nonetheless attempts to ob tain some protection for this discrimination under section 703(h), 42 U.S.C. §2000e-2(h). This defense has no merit. Section 703(h) provides that an employer is free: “to give and to act upon the results of any professionally developed ability test provided that such test, its ad ministration or action upon the results is not designed, intended or used to discriminate because of race . . .” (Emphasis added). This provision obviously has no relevance whatsoever to the high school diploma requirement, which would be un lawful even if section 703 (h) were not satisfied.41 41 The only provision in Title VII mentioning “intent” which could possibly have relevance to the high school diploma require ment is section 706(g), 42 U.S.C. §2000e-5(g). This provision seems to limit injunctive relief (presumably as distinguished from a mere declaratory judgment which must be granted irrespective of this provision) to cases where an unlawful practice has been “intentionally engaged in.” This is not a requirement that there be intent to discriminate, which would suggest a subjective evalua tion of Duke’s specific motives, but only that the act be engaged in “intentionally, or purposely, as distinguished from an accidental act.” See 110 Cong. Rec. 8194 (1964) ; Note, Legal Implications of the Use of Standardized Ability Tests in Employment and Education, 68 Colum. L. Rev. 691, 713 (1968). This requirement is clearly met by any action, such as Duke’s in adopting transfer 41 The section conld have some relevance to Duke’s test re quirement. However, Duke’s test use fails to meet all the requirements of this provision and therefore derives no protection from it.42 First, Duke’s test use is not “professionally developed” because professional standards require, as a prerequisite to test use, study, evaluation and validation which Duke did not undertake. See note 29, supra. Duke would ap parently read the term “professionally developed” to mean that any test developed by professionals at its inception could be administered in any employment situation. This would permit, for example, use of a typing test to select ditchdiggers or the use of the College Boards to select janitors. The EEOC, in its Guidelines on Employment Testing Procedures, has ruled more reasonably that: “The Commission accordingly interprets ‘professionally developed ability test’ to mean a test which fairly measure the knowledge or skills required by the par ticular job or class of jobs which the applicant seeks, rules, which is undertaken deliberately and purposely no matter what the motives underlying the act. The courts under Title VII have consistently held employers liable for purposive actions which result in discrimination, without any showing of specific discrimi natory intent. E.g., Bosenfeld v. Southern Pacific Co., 59 Lab. Cas. Tf 9172 (S.D. Calif. 1968) (action taken to comply with state law ); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Ya. 1968) ; United States v. Local 189, 282 F. Supp. 59 (E.D. La. 1968). In other words, Duke is responsible under Title VII for the natural consequences of its actions. Banks v. Lockheed-Georgia Co., 58 Lab. Cas. % 9131 (N.D. Ga. 1968). This is nothing more than what its responsibility would be under common law, Dtmlap v. United States, 70 F.2d 35, 37 (7th Cir. 1934), or under analogous provisions of the National Labor Relations Act, Erie Resistor Co. v. N.L.R.B., 373 U.S. 221, 229 (1963). 42 For a general discussion of this provision see Note, Legal Im plications of the Use of Standardized Employment Tests in Em ployment and Education, 68 Colum. L. Rev. 691, 706-13 (1968). 42 or which fairly affords the employer a chance to mea sure the applicant’s ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII.” Dube’s test use fails to meet these standards. Second, it can be inferred from the timing of Duke’s de cision to install tests and the lack of study that went into it, that an intent to screen out Negroes was at least a part of Duke’s intention in adopting its tests. In 1965, shortly after Federal law first required Duke to drop its overt racial discrimination, the high school diploma requirement was modified in response to pressure from whites in the Coal Handling Department who wanted to transfer and who could not meet it. Instead of lowering the requirement or waiving it for long-time employees, which would have permitted many Negroes to qualify for transfer, the com pany seized on the alternative of a test that continues to relate to educational and cultural background. The com pany knew that the burden of its requirements fell pri marily on Negroes in the Labor Department. In March of 1966, these Negroes expressly complained to company of ficials about the unfair impact of the test (R. 120b). The company was surely aware of the notoriously poorer per formance of Negroes on these tests. Yet the company made no attempt to equate the situation of Negroes in the Labor Department with that of whites in the better departments who were being exempted from the high school and test requirements. It did not make any study or investigation to determine whether the tests were job related, i.e., whether they fulfilled genuine business needs. The company has con ceded that it really has no definite information about the 43 efficacy or validity of the tests (R. 179a). The only thing that Duke could have known for certain about its tests was that they had a highly adverse impact on Negroes. Taking- account of Duke’s long history of segregation and discrim ination, and its failure to this day to promote a Negro to an “inside” job, the conclusion is inescapable that the dis criminatory impact of the tests was in the minds of Duke’s managers and formed at least part of Duke’s intent in 1965. Third, whatever Duke’s intent, there is no question that the tests are in fact used to discriminate against Negroes. Such is the clear result of using tests to apply primarily to Negroes in the plant while exempting most whites, and it is the clear result of using tests to measure educational at tainment when such is not relevant to business needs. To the extent that any one of these three points is cor rect, Duke’s test use is outside the protective scope of sec tion 703 (h). It should not be at all surprising that section 703 (h) does not protect a test use such as that at Dan River. If section 703 (h) were read as Duke proposes it would give virtually carte blanche to any employer to use tests to effectively create gross preferences in favor of whites. The legislative history demonstrates that it was not intended to have any such significance. The test clause in section 703 (h) was introduced by Senator John Tower as an express response to a decision of a hearing examiner under the Illinois Fair Employment Practices Act in a case involving the Motorola Corporation. 110 Cong. Rec. 9024-42 (1964). This decision, handed down while Title VII was on its way through Congress, indi cated that the use of an ability test might be unlawful per se because Negroes as a group scored more poorly on it than did whites as a group. Decision and Order of FEPC 44 Hearing Examiner, reprinted in 110 Cong. Rec. 9030-9033 (1964). This is obviously not the theory being advanced by plaintiffs before this court because it ignored the ques tion of business need. As Senator Tower correctly pointed out, this ruling established a “double standard” and might require the hiring of Negroes who were unqualified for a job. He therefore introduced an extensive amendment to Title VII which he explained as “not an effort to weaken the bill” but rather to protect the right of an employer to assess an applicant’s “job qualifications.” 110 Cong. Rec. 13492 (1964). Senator Tower made it clear that his amend ment “would not legalize discriminatory tests.” Id. at 13504. The sponsors of Title VII were of the view that the bill as it stood already protected employers against a deci sion such as Motorola because of differences between Title VII and the Illinois law. Moreover, they objected to Sen ator Tower’s amendment because it gave an employer an absolute right to use a professionally designed test even if it operated discriminatorily. Remarks of Senators Case and Humphrey, Id. at 13503-04. For these reasons, Sen ator Tower’s extensive amendment was rejected by the Senate. Id. at 13505. Subsequently, Senator Tower in troduced a much abbreviated and watered-down version of his amendment. This version had been cleared with “the Attorney General, the leadership, and the proponents of the bill.” 110 Cong. Rec. 13724 (1964). Senator Humphrey, a sponsor of the bill, said that: “Senators on both sides of the aisle who were deeply interested in Title VII have examined the text of this amendment and have found it to be in accord with the intent and purpose of that title.” Id. (Emphasis added.) 45 The amendment passed on voice vote without debate and is now included in section 703(h). This legislative history shows quite clearly that the pur pose of the Tower amendment was not to exempt ability tests from the Act’s broad prohibition of discriminatory practices, but rather only as insurance that the extreme implications of the Motorola decision did not creep into the interpretation of Title VII. The Tower amendment was approved only when everyone was assured that it was con sistent with the “intent and purpose” of Title VII. It must therefore be construed consistently with that intent and purpose. This purpose was surely not to allow testing programs which give gross preferences to whites without adequate business justification. 46 IV. The Case Should Be Remanded With Directions to the District Court to Fashion an Appropriate Remedy. Section 706 (g) of Title VII permits a court, upon finding unlawful employment practices such as those at Dan River, to enjoin the practices and “order such affirmative action as may be appropriate.” In this case, the remedy should: (1) enjoin Duke from denying promotions to incum bent Negroes on the basis of status which was dis- criminatorily denied to them. In particular, Duke should be ordered to exempt incumbent Negroes, who were the subject of prior discrimination, from educa tional and test requirements to the same extent that incumbent whites have been so exempted. (2) enjoin Duke from denying transfers or promotions on the basis of educational or test requirements which have a discriminatory impact on Negroes unless such requirements can be shown to be based on business need after proper study and evaluation. (3) require Duke to take the action necessary to re store appellants to the position where they would have been had Duke not engaged in discriminatory prac tices subsequent to July 2, 1965, the effective date of Ttile VII. The first two aspects of this relief are clear enough. But the precise remedy apropriate for the third aspect will re quire study and analysis of employment records which can be better undertaken at the District Court level. 47 CONCLUSION Appellants respectfully request that the order and judg- menut of the District Court be reversed for the reasons stated herein, and that the case be remanded for the fashion ing of appropirate relief. Respectfully submitted, Conrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J . L eV onne Chambers Chambers, Stein, Ferguson & Lanning 216 West Tenth Street Charlotte, North Carolina S ammie Chess, J r . 622 East Washington Drive High Point, North Carolina J ack Greenberg J ames M. N abrit, III N orman C. A maker R obert B elton Gabrielle A. K irk 10 Columbus Circle New York, New York Attorneys for Appellants George Cooper 435 West 116th Street New York, New York A lbert J . R osenthal 435 West 116th Street New York, New York Of Counsel APPENDIX 49 Extracts From Title VII Section 703 (a) It shall be unlawful employment prac tice for an employer— # # * # * (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or other wise adversely affect his status as an employee, be cause of such individual’s race, color, religion, sex, or national origin. Section 703. (h ): (h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of com pensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system, . . . nor shall it be an unlawful employ ment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. . . . # # # * # Section 706. (g ): (g) If the court finds that the respondent has in tentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the com plaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and 50 Extracts From, Title VII order such affirmative action as may be appropriate, which may include reinstatement or hiring of em ployees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful em ployment practice). . . . Decision of EEOC, December 2, 1966, reprinted CCH, Employment Practice Guide, 1117,304.53 Number 38-4 9 Deels»@*is ®n# R u lin gs 7 4 1 3 - 2 7 3-9-47r [ft 17,304.53] Discriminatory testing procedures. Decision of Equal Employment Opportunity Commission, December 2, 1966. Reasonable cause existed to support conclusion that employer’s testing procedures discriminated on the basis of race where the criteria used were not related to the successful performance of jobs for which the tests were given and only one of 17 Negroes taking the tests for advancement from “dead-end” jobs to “line of progression” jobs passed. In plants with a history of discrimination, testing procedures will be carefully scrutinized, and the burden is on the employer to show that tests are not used to exclude Negroes from job opportunities. Back references.—ft 1209, 16,904. 51 On August 24, 1966, the Commission adopted Guidelines on Em ployment Testing Procedures [ft 16,904]. In light of the Guide lines, the Commission concludes that reasonable cause exists to believe that Respondent’s testing procedures are in violation of Title VII of the Act. The following facts are undisputed. Re spondent employs approximately 2,465 per sons in its Paper Mill and Converter Plants. . . . While Negroes constitute approxi mately 40% of [the local] population, they constitute 6% of Respondent’s work force. Commencing in 1958 Respondent has ad ministered various tests to applicants for employment. From the beginning of 1957 through April 1964 Respondent hired 386 whites and 12 Negroes; of the Converter plant employees hired since then, between April 1964 and November 1965, 75 are white and 4 are Negro. Most of the jobs at Respondent’s plant are in lines of progression, which means that an employee moves up from a lower paying job on the bottom to a higher pay ing job on the top in accordance with seniority, if able to perform the work. Most of the remaining jobs, which involve less skilled and more menial work, are lower paying “dead end” jobs with no prospect of advancement. Of the white employees in the Converter operation, 797 (82% ) are in line of progression jobs while 177 (18%) are in dead end jobs. Of the Negro em ployees in the Converter operation, 8 (8%) are in line of progression jobs while 89 (92%) are in dead end jobs. In 1964 Re spondent commenced administering tests to employees desiring to move from dead end jobs to line of progression jobs or from one line of progression to another. Employees who were in line of progression jobs were not required to take the tests to keep their jobs or to be promoted within lines of progression. Since 1964, 94 white employees and 17 Negro employees have taken the transfer tests. Of these, 58 whites (58%) and one Negro (6%) passed. The one Negro who passed was outbid for the job lie was seeking by a higher seniority white. Employment Practices It is significant that until 1963, shortly before the transfer tests were instituted, Re spondent maintained segregated jobs and lines of progression, so that Negroes were categorically excluded on the basis of their race from the more skilled and better pay ing jobs which were reserved for “whites only.” While the bars are no longer ex pressly in terms of race, it is plain that Re spondent’s testing procedures have had the effect of continuing the restriction on the entrance of Negro employees into “white” line of progression jobs. We stated in our Guidelines: “If the facts indicate that an employer has discriminated in the past on the basis of race . . . the use of tests in such circumstances will be scrutinized carefully by the Commission.” Accordingly, where, as here, the employer has a history of excluding Negroes from employment and from the better jobs be cause of their race, and where, as here, the employer now utilizes employment tests which function to exclude Negroes from employment opportunities, it is incumbent upon the employer to show affirmatively that the tests themselves and the method of their application are non-discriminatory within the meaning of Title VII. Title VII permits employers to use ability tests which are “professionally developed” and which are not “designed, intended or used” to discriminate. As we have stated in our Guidelines, to be considered as “pro fessionally developed,” not only must the tests in question he devised by a person or firm in the business or profession of de veloping employment tests, but in addition, the tests must be developed and applied in accordance with the accepted standards of the testing profession. Relevant here are the requirements that the tests used be structured in terms of the skills required on the specific jobs in question and that the tests be validated for those specific jobs. In other words, before basing per sonnel actions on test results, it must have been determined that those who pass the tests have a greater chance for success on the particular jobs in question than those fl i f * 3 M eS3 52 7 4 13*: 15fS©€?> who fail. Moreover, where the work force, or potential work force, is multiracial, the tests should he validated accordingly. In the instant case, all prospective Con verter Plant employees are required to pass the Otis Employment Test 1A or IB. Ap plicants for jobs “requiring mechanical ability” are also required to pass the Ben nett Test of Mechanical Comprehension Form AA and PTI Numerical Test A or B. For transfer, employees are required to pass or have passed one or more of the above tests plus the Wonderlic Personnel Tests Form A. The Otis and Wonderlic tests measure “general intelligence,” with par ticular loading on verbal facility; the PTI test measures skill in arithmetic; the Ben nett test measures knowledge of physical principles. There is nothing in the volumi nous materials submitted by Respondent to indicate that the traits measured by these tests are traits which are necessary for the successful performance of the specific jobs available at Respondent’s plant. Nor does 3-9-67 it appear that any of the tests have been validated properly in terms of the specific jobs available at Respondent’s plant, or in : crins of the racial c mpos I ion o f 3 tespc i cut’s work force.1 In the absence of evi dence that the tests are properly related to the jobs and have been properly validated, Respondent has no rational basis for be lieving that employees and applicants who pass the tests will make more successful employees than those who fail; conversely, Respondent has no rational basis for believing that em ployees and applicants who fail the tests would not make successful employees. Re spondent's testing procedures, therefore, are not “professionally developed.” Accordingly, since Respondent’s testing procedures serve to perpetuate the same pattern of racial dis crimination which respondent maintained overtly for many years before it began test ing, we conclude that there is reasonable cause to believe that Respondent, thereby, has violated and continues to violate Title VII of the Civil Rights Act of 1964. [ft 17,304.54] Failure to advance Negro employees to higher rated jobs on basis of seniority. Decision of Equal Employment Opportunity Commission, Case Nos. 5-11-2650, 6-3-2703—6-3-2723, November 18, 1966. Reasonable cause exists to believe that a steel corporation has violated Title VII by maintaining an exclusively Negro job classification within the maintenance-of-way depart ment, by transferring whites from other departments to fill higher-rated jobs within the department, and by refusing to provide a training program which would enable Negroes to advance to higher-rated jobs within the department. Back reference.—ft 1217. Reasonable cause does not exist to believe that a union violated Title V3I by refusing to process the grievance of a Negro member. Investigation revealed that the grievance was processed orally, that it was denied, that the union member was notified of the denial, and that lie failed to appeal within ten days as required by the collective bargaining agreement. Back reference.—1} 1217. Sum m ary o f Charges The Charging Parties allege discrimina tion on the basis of race (Negro) as follows: (a) Charging Parties work in the Rail Transportation Division, Maintenance of Way Department, of the United States Steel Corporation. There is little or no opportunity for advancement for Negroes in their current seniority unit. In addition, several white men with less seniority were brought into the Department to fill higher rated jobs. Respondent litres men from 1 A cco rd in g to S ta n d a r d s f o r E d u c a t io n a l a n d P s y c h o lo g ic a l T e s t s a n d M a n u a ls pu th e A m erican P sy c h o lo g ic a l A sso c ia tio n <1966>. te s t s s h o u ld b e re v a lid a te d a t le a s t e v e ry 15 1 1 7 .3 0 4 .5 4 other departments rather than letting the Negroes exercise their seniority rights with in the Department. (b) Of the charge, Charging Party Speed includes Local Union 1733 of United Steel workers of America as Respondent with re spect to the above matter, in that the Union failed to process the grievance. Sum m ary o f Investigation (a) The investigation substantiates the allegations of the Charging Parties that y e a rs . T h e O tis te s ts w e re d ev ised in 1922, th e B e n n e tt in 1940, th e W o n d e rlic in 1942 a n d th e P T I in 1950. © 1967, Commerce Clearing House, Inc, D ecision of EEOC, D ecem ber 6, 1966, rep rin ted CCH, Em ploym ent P ractice G uide, ^ 1 7 ,3 0 4 .5 5 Number39—si D ec is io n s a n d R u lin g s 7 4 1 3 - 2 1 3-24-67 the Respondent is discriminating against the Charging Parties by continuing to maintain a job classification which is exclusively Negro. The Maintenance of Way Department (hereinafter referred to as MOW) is a portion of the bargaining unit represented by Local 1733 of the United Steelworkers of America. This same local represents most of the employees in the Mechanical Shops Department. MOW is a seniority unit with approximately 130 job opportuni ties. Only 18 of these job opportunities are above JC-4 and in a Line of Promotion. The Charging Parties are classified as Track Laborers. Historically and currently, this is an all-Negro classification. This classification contains 112 of the 130 job opportunities in MOW. Since 1950, there has been but one addition to the Track Laborer Seniority Roster, and this was a Negro, a Mr. William Mathews, who was added in September of 1965. Prior to April of 1966, personnel actions within MOW were virtually static: (1) In 1959-1960 three (3) men (white) were brought into the Department to work at unskilled jobs that senior Negroes could have qualified for. (2) In April of 1966, an expert welder (white) was brought into the Department from the Regional Pool to work as a Track Welder. (3) In May of 1966, another Tin Mill employee (white) was drawn from the Regional Pool, this time for the job of Signal Repairman. The Track Laborer job classification pro vides no training opportunities. Fourteen of the 18 job opportunities above the Track Laborer job have special training require ments. At best, you have approximately 100 men vying for four job opportunities. The Charging Parties can not aspire to anything other than a JC-4 Track Laborer position. The low ratio of higher graded jobs to the JC-4 job, and the low level of personnel turnovers in MOW contribute to the persistence of the Charging Parties’ predicament. (b) The investigation does not substan tiate the allegations that were filed against Union Local 1733 by Charging Party Eugene Speed. Mr. Speed alleged failure of the union to process a grievance he filed. After investi gation, it was determined that Mr, Speed’s grievance was processed verbally (griev ances are not reduced to writing until the third step), that it was denied and dropped at a lower step, and that Mr. Speed was notified of this fact and failed to appeal the action within 10 days as stipulated by con tract. His grievance, therefore, was not processed further. Decision (a) Reasonable cause exists to believe that the Respondent company is violating Title VII of the Civil Rights Act of 1964 as alleged. (b) Reasonable cause does not exist to believe that Local 1733 of the United Steel workers of America is violating Title VII of the Civil Rights Act of 1964 as alleged. [ff 17,304.55] Employment tests found to be unrelated to job content are deemed discriminatory. Decision of Equal Employment Opportunity Commission, December 6, 1966. Reasonable cause exists to believe that a food processing plant has violated Title VII by administering an intelligence test which is not related to job requirements in order to restrict the number of Negro employees and by refusing to hire Negro job applicants solely because they were unable to pass the discriminatory test. Back references.—IT 1209, 1217. Sum m ary o f Charges The Charging Parties allege discrimina tion because of race, as follows: After Negro applicants had qualified for employ ment by passing a dexterity test (GATB). they have subsequently been systematically excluded by the Respondent through the use of an intelligence test (Wonderlic). Negroes who have been able to pass the intelligence test have sometimes not been Employment Practices employed, and white applicants have been hired either without testing or when they have applied at later dates than qualified Negro applicants. The change in standards for employment works to the disadvantage of Negroes in the community because of low educational attainment. In addition, the Respondent’s use of the local state employ ment service office for initial screening of applicants results in disadvantage due to u S 7 s3 0 4 eS S 7 4 1 3' - 3 0 54 traditional discriminatory practices by that facility—where Negro applicants may not sit, where they encounter rudeness and offers of domestic work instead of indus trial work, and where they suffer delayed referrals or are refused referrals to indus trial employment. Charging Parties and the local CORE chapter (on behalf of Negro citizens) con tend that Respondent utilizes certain meth ods to avoid hiring substantial numbers of Negroes. Furthermore, they allege that the company and the local power structure have agreed to limit the number of Negro women to be hired, to avoid disturbing the domestic work force. Sum m ary o f Investigation 1. The Respondent’s facility for process ing poultry for frozen and canned food products received widespread publicity prior to opening in June, 1966. As early as the summer of 1965 applicants at the state em ployment office requested referrals to the company; screening tests began in the win ter of 1965. As of October 6, 1966, Re spondent had hired 1,011 persons, including 176 Negroes, classified as follows: 124 un skilled and 19 semiskilled workers, 18 serv ice workers, 8 skilled workers, 5 technicians, and 2 clerical workers. Several hundred job opportunities are expected to materialize and be filled within the next few months as the plant operation achieves full produc tion. The majority of jobs available fall into the category of unskilled work involved in dressing, cooking, and packaging poultry. 2. Investigation disclosed that selection processes used by Respondent have lent themselves to discriminatory practices. a. Application Evaluation: Initial screen ing of more than 6,000 applications elim inated immediately those with less than eight years’ school, erratic or inappropriate work histories, over 50 years of age, and incomplete applications; in addition, pref erence v/as given those with industrial work experience. All criteria were not rigidly adhered to, in that some past 50 and a few with less than eight years’ school were em ployed. About 1,500 applications were re jected; nearly three-quarters of these were from Negro applicants, with schooling a major factor. Negroes comprise nearly one-half of the population in the county, and more than half in neighboring counties, but of those over 25 years of age who did not complete eight years of school in Sum ter, 62 per cent are Negro. Eight years of schooling is no more valid an indicator of 1 1 7 .3 M .ii H um ber 35—-5‘2 3-24-6? job qualifications than is a passing score on the intelligence test such as the Won- derlic. b. Physical Exam ination: No detailed ex amination was made of medical records. However, investigation disclosed that there may be a slight disadvantage for Negro ap plicants because of the large proportion of rejections for medical reasons. c. Reference Checks: Reference checks, which are not required in writing, are a major stumbling block, and often barrier, to many Negro applicants inasmuch as some employers (especially private households and farmers) are reluctant to lose this source of low-paid labor. Of those Negroes already hired, at least one-half were for merly domestics, paid at the rate of $3.50 per day. d. Manual D exterity Testing: At least 40 percent of the females referred by the state employment office were Negroes who had passed the GATB finger and manual dex terity testing. One technical irregularity in the use of this test was noted, in that one critical score of the GATR B-238 se ries (validated for poultry laborers) was not being used. Section TV of the Manual for the USES General Aptitude Test Bat tery, published by the Department of Labor (1966), sets forth finger dexterity (F) and manual dexterity (M) factors as important aptitudes in the selection of poultry-dress ing workers (D. O. T. Code 525.887). An earlier (1962) version of Section III of the Guide to the Use o f the G A T E also refers to aptitudes F and M. The correlation be tween these aptitudes and supervisory rat ings of current employees was 0.53. This validity coefficient is moderately high and is quite adequate for the prediction of ap plicants’ subsequent performance on the job. Neither the Dictionary o f Occupational T i tles (D. O. T.) nor the GATB Manual con tain any information to substantiate the notion that general intelligence, verbal abil ity, numerical ability, or spatial ability are required for the performance of this kind of unskilled work. Since the Wonderlic Personnel Test is heavily loaded with the verbal, numerical, and abstract reasoning components of “general intelligence’’, its content is irrelevant to job content and em ployee performance among poultry-dressing workers. e. Intelligence Testing: One month after hiring began, Respondent introduced the Wonderlic test. A trial with the Wonderlic had been conducted during the spring; Ne gro and white personnel who failed to (c) 1967, Commerce Clearing House, Inc, 5o 1 4 1 1 - S Iu d R u lin gsH um ber 42’*—45 5-5-67 achieve qualifying scores in this early test ing were hired despite the results and have proved to be satisfactory employees. Re spondent personnel who administer ■ the Wonderlic have no training for or expe rience with testing; they use for guidance a small booklet accompanying the test. They have arbitrarily subtracted more than one point from the score designated by pub lishers of the test as the national norm for persons completing eight years of school. A certain number of irregularities in test administration and scoring were noted, in that a number of records revealed question able scoring and improper grading, as well as alterations on test papers. Respondent contends these were clerical errors. 3. Seldom will there be independent evi dence. that Respondent intended its educa tional and testing requirements to eliminate a disproportionate number of Negro job applicants, but it is elementary that a per son must be held to intend the normal and foreseeable consequences of his actions. If Respondent did not anticipate the results of its screening procedures, it is certainly aware of them now. This is not to suggest that in all circumstances it is improper for an employer to utilize selection devices which may incidentally reject a dispropor tionate number of Negro applicants, but where, as here, the educational and testing criteria have the effect o f discriminating and are not related to job performance, there is reasonable cause to believe that Respondent, by utilizing such deznees, thereby violates Title V II. 4. Nine of the 30 Charging Parties are included among 2,000 applicants awaiting consideration since June 1966; when hiring is done, the Respondent states that appli cations are selected from the file in a “ran dom” fashion and with no attempt to hire in the sequence in which people had ap plied. This does not explain why only 17 per cent of the current employees are Negro, whereas 40 per cent of the appli cants referred by the Employment Security Commission as being qualified are Negro. Negroes account for nearly one-half the population in the county where the plant is located, and more than 60 per cent in counties to the South and East and 66 per cent in the county to the North. Despite this, a pattern of rigid segregation persists in the area. 5. The majority of the jobs to be filled require no special skills. Those classified as skilled maintenance jobs do require that the applicant read and write. The Respondent is using job descriptions developed for operations in similar plants at other loca tions until such can be written for this facility. 6. Inspection of the plant revealed that Negro employees were not segregated within working areas, and there were no signs of differential treatment with respect to any plant facilities. Some jobs appear to be dominated by one sex, but this does not appear to result from any claim for a bona fide occupational qualification. Fe male employees were observed to operate forklift trucks, a non-traditional assign ment. However, male and female employees are assigned separate series of clock num bers, and personnel records are segregated by sex. Decision Reasonable cause exists to believe the Re spondent has violated Sections 703(a)(1) and (2) of the Civil Rights Act of 1964, as follows: 1. It has failed to hire charging parties and others similarly situated, because of race, by arbitrarily and discriminatorily setting educational standards that are not justified for the jobs sought, as a means of restricting the number of its Negro employees; and 2. It has limited the selection of its em ployees in a way that tends to deprive the charging parties and others of employment opportunities, because of race, by the dis criminatory use of testing procedures which are not exempted by Section 703(h). 58 Mitchell and Albright (Kaiser Aluminum & Chemical Corp.), and McMraary (Management & Personal Services, In®.), Biracia! Validation of Section IVocedtares in a Lairg® Plant, a® Proceedings of 76th Annual Convention at the Ameracsss Psychological As®9b, Septem ber 196#. This study, conducted at a large Southern industrial plant, is one phase o f a multiplant investigation o f personnel selection practices within the corporation. The major aim o f this particular study was to determine whether tests and other objective selection procedures in use are culturally fair and valid for predicting job success. Other aspects of the overall project will be devoted to a general review o f the quality and sequencing o f all phases o f the selection process, including employment interviews, physical exam inations. and reference inquiries. In addition, procedures for upgrading or promotion o f present employees will be scrutinized and revised if necessary to assure equal oppor tunities for all qualified employees. METHOD Subjects. In the study to be reported here, data from the personnel records o f nearly 1 .MX) male hourly workers and 3 ,200 applicants at a New Orleans, Louisiana, plant were examined. The majority o f these men were semi skilled workers, cither employed or applying for positions in one large department of the plant engaged in processing powdered alumina into molten metal. Working conditions arc difficult because o f the high temperatures required for the production process. Consequently, turnover is high. Of the 1,594 employed .Vs. 361 had terminated, most within 2 mo. o f employment. The remainder o f the 5s had been employed from * mo. to 8 yr. or more. Criteria. The 361 terminecs were compared with selected samples o f llie present employees with ai least 3 mo. o f service to ascertain whether the turnover-prone individuals could have been identified at the time o f hiring, in addition to turnover, overall job performance evaluations by supervisors ol the present employees were utilized as a criterion in the study, for work groups o f 5 men or more, the alternation ranking method was employed, with at least 2 supervisors ranking each man. St.mine ratings were used ioj groups smaller than 5. Ratings and rankings were converted to T scores with a mean o f 30 and a standard deviation o f !l). To assure uniformity and understanding o f rating instructions, meetings were held with all supervisors so that the procedures could be explained and demonstrated. The evaluations were made by the supervisors individually during these meetings and were collet ted a1 the men left the mom. Predictors. 1'he predictor data consisted o f the Wonder- iic Personnel Test and biographical items extracted from the company's application form. Ii. aii. 24 variables were analyzed including age. amount o f education, race, marital status, number o f dependents, etc. Procedure. Sep.a.mc, but similar, analyses were con ducted for the pi itormitnee and tenure enter,.!. The biographical items were analyzed using the Lawsi,e-baker procedure < 1*»SU) against both ciiteria'. Subsamples o f the available .Vs were use.; to develop the item weights, with the remaining 5s h«ld out for cross-validation. A scoring hey o f 12 items was developed for the tenure criterion using validation samples o f 200 terminated and 132 Ss who had remained 3 mo. or more and were still employed. An item analysis against the performance ratings was not sufficiently promising to warrant cross-validation. Intercorrelations o f the Wonderlic scores, biographical items, and criteria were computed, as weH as stepwise multiple regression equations against the performance rating criterion (the dichotomous nature o f the tenure criterion precluded this latter analysis). Any suspected nonlinear relationships were plotted graphically and in spected (none were found). Where appropriate, separate analyses were performed for Negroes and whites. RESULTS Negro-white comparisons. Data for 3,200 applicants, gathered from October 1966 to October 1967, indicated that the proportion o f Negro applicants who failed to meet the minimum score o f 12 on the Wonderlic was precisely twice that o f the white applicants (705/1312 or 54% o f Negro applicants compared to 520/1X99 or 27% o f white applicants). Subsequent analyses for the employed workers showed that for neither whites nor Negroes was the Wonderlic valid against either performance (r = -.01 for 830 whites and -.02 for 194 Negroes) or tenure (r not computed but inspection o f the scores revealed no essential difference). As would bo expected, the em ployed whites had a significantly higher mean Wonderlic score than the Negroes (20 .0 vs. 16.4, / = 5.77, p < .01). Interestingly enough, there was no significant dif ference in the performance ratings for the two groups (M for whites = 50.6, SD = 8.1; for Negroes Af = 49 .4 , SD = 7.1 , t not significant), thereby easing concern that a group o f predominantly Southern white supervisors might be biased in their evaluation o f Negro workers. There was some tendency, in addition, foi Negroes to stay longer on the job (39% stayed 3 mu. or longer vs. 33% o f the whites) although the difference was not significant. Interrutcr agreement. As noted previously, 2 super visors ranked or rated each em ployee whenever possible. Kendall's coeff icient o f concordance was computed on the multiple rankings for a random sample o f 66 employees and found to he .77. significant at the .01 level; this finding would seem to support the inference that a careful rating job was done. Prediction o f performance. Despite their reliability, the performance ratings were not significantly related to the biographical .tents or to the Wonderlic for whites or Negroes or for whites and Negroes combined. Prediction o f tenure. Alt.tough the Wonderlic was not found to !e predictive o f turnover, a scoring key o f 12 mograpiuca. .terns was developed and cross-validated. These items included race, keyed in favor o f Negroes; age, keyed 575 37 in favor o f older applicants; marital status, favoring married applicants, etc. The scoring key composed o f these 12 items was cior-s-vulidated with the results shown in 'fable I . A phi coefficient computed from these data was .30, xJ “ 22.50, significant beyond the .01 level. T A B L E 1 Cross* Validation of Tenure Scores for Tirmlnstsd Still Employed Groups Score T erm in a te d S t ill employed Total No. % No. % No. % Lass than 12 99 53 13 18 112 44 12 15 43 23 27 38 70 27 16 or Mora 44 24 31 44 75 29 Total 186 100 71 100 257 100 DISCUSSION With the lack o f positive results in predicting perform ance and the finding that the Wonderlic had been screening out a disproportionate number o f Negroes, it was decided to revise the entire selection process. The changes are as follows: !. The Wonderlic has been dropped and the SRA Pictorial Reasoning Test has been introduced into the prehire process, on an experimental basis only. No selec tion decisions will be made on the basis o f this test until it has been validated. 2. A biographical inventory has been introduced into the selection process on an experimental basis. Hopefully, it can provide further aid in reducing turnover and in future performance studies. 3 . The selection process has been altered to include an interview and a more comprehensive orientation session, The changes follow a long period o f almost total reliance on test scores to select em ployees from a large group o f applicants. 4 . The “tenure key” developed in the study will be used in the selection process for hourly em ployees until experimental data can provide an improved version. These changes in one plant's selection process are typi cal o f those which will probably be necessary for a number o f other plants. Hopefully, they will contribute to a fairer and more valid set o f procedures for all applicants. To the extent that the situations and findings o f this study may be representative o f the “state o f the art” o f personnel selection, the investigators would urge other employers to scrutinize their selection practices in light o f the current requirements to provide equal opportunity for all appli cants. REFERENCE Lawsho, C. H., & Baker, P. C. Three aids in the evaluation of the significance of the difference between percentages. Educational and Psychological Measurement, 1950, 10, 263-270. 58 FEDERAL REGISTER V O L U M E 33 * N U M B E R 186 Tuesday, September 24, 1968 ® Washington, D.C. PART II DEPARTMENT OF LABOR - Office of the Secretary Validation of Employment Tests by Contractors and Sub contractors Subject to the Provisions of Executive No. 18C—P t.I I---- 1 59 14392 DEPARTMENT IF LABOR Office of th® Secretory EMPLOYMENT TESTS BY CONTRAC TORS AND SUBCONTRACTORS Validation Validation of employment tests by contractors and subcontractors subject to the provisions of Executive Order 11246. 1. G e n e r a l , (a) The following order regarding the use of employment tests by contractors subject to the provisions of Executive Order 11246 Is being issued in response to numerous requests for policy guidance by Government agencies and by contractors. (b) Two matters regarding selection procedures are of foremost concern to the Government: (1) Recognizing the importance of proper procedures in the utilization and conservation of human resources generally, and (2) pointing out the possible adverse effects of improper procedures on the utilization of minority group personnel. (c) The order is founded on the belief th at properly validated and standardized tests, by virtue of their relative objec tivity and freedom from the biases that are apt to characterize more subjective evaluation techniques, can contribute substantially to the implementation of equitable and nondiscriminatory person nel policies. Moreover, professionally developed tests, carefully used in con junction with other tools of personnel assessment and complemented by sound programs of training and job design, can significantly aid in the development and maintenance of an efficient work force. <d) An examination by the Office of Federal Contract Compliance of com pliance reviews of contractors has affirmed the increasing reliance on tests in the conduct of personnel activities. In many cases contractors have come to rely almost exclusively on tests as the basis for making employment and pro motion decisions, with candidates some times selected or rejected on the basis of a single test score. The examination also disclosed that where employment tests are so used, minority candidates frequently experience disproportionately high rates of rejection through failing to attain score levels that have been estab lished as minimum standards for qualification. (e)The examination further suggests that there has been a decided increase since 1963 in total test usage and a particularly notable increase in the in cidence of doubtful testing practices which, experience indicates, tend to have racially discriminatory effects. These findings are particularly evident in test ing programs related to blue-collar and clerical job categories. if) It has become clear that in many instances contractors are using tests to determine qualification for hire, transfer, or promotion without evidence that they are valid indices of performance poten tial. Where evidence in support of pre sumed relationships between test per- NOTICES formance and job behavior is lacking, the possibility of discrimination in the ap plication of test results must be recog nized. A test lacking validity (i.e., having no significant relationship to job be havior) and yielding lower scares for minority candidates may resultantly re ject many who have probabilities of suc cessful work performance equal to those of nonminority candidates. (g) The order that follows, dealing with basic issues of validity and fairness in those selection programs in which blue-collar and clerical job categories are primarily involved, was developed only after extensive discussions of the many complex problems and technical consid erations with test experts and personnel management specialists from both aca demia and industry. The provisions of the order are designed to serve as a work able set of criteria for agencies and con tractors in determining whether or not selection practices are in compliance with Executive Order 11246. It is recognized that the tests used by the State Employment Agencies should be similarly validated, and it is expected th at the U.S. Employment Service will expand, as necessary, its test validation program for State Agencies. I t is also recognized that test usage, as well as test validity, must be reviewed to determine its effect on the employ ment of minorities. For example, a test may be suspect when it is given in a lan guage in which a significant number of minority applicants are not proficient and where language proficiency itself is not a bona fide requirement for the job. Similarly, a test or other qualification standard should not be used in a situa tion involving the transfer or promotion of minority employees when such em ployees would already have occupied the positions involved without such qualifica tions were it not for past discriminatory practices. Specific directives concerning test usage will be issued by the Office of Fed eral Contract Compliance within a short time. 2. E v id e n c e o f v a l id i t y , (a) I t is di rected that each agency require each contractor regularly using tests to select from among candidates for hire, transfer or promotion to jobs other than profes sional. technical and managerial occu pations (defined as occupational groups "O" and “1” in the “Dictionary of Oc cupational Titles,” Third Ed.) to have available for inspection, within a rea sonable time, evidence that the tests are valid for their intended purposes. Such evidence shall be examined in compliance reviews for indications of possible dis crimination, such as instances of higher rejection rates for minority candidates than nonminority candidates. (b) Evidence of a test's validity should consist of empirical data demonstrating that the test is predictive of or signifi cantly correlated with important ele ments of work behavior comprising or relevant to the job<s> for which candi dates are being evaluated. 11 ) if job progression structures and seniority provisions are so established that a new employee will probably, within a reasonable period of time and In a great majority of cases, progress to a higher level, it may be considered that candidates are being evaluated for jobs a t that higher level. However, where job progression is not so nearly automatic, or the time span is such th at higher level jobs may be expected to change in sig nificant ways, it shall be considered that candidates are being evaluated for a job a t or near the entry level. In the latter case, it would 1- appropriate for a contractor to institute performance or other tests as a condition of promotion provided such tests also have been vali dated pursuant to the provisions of this order. (2) Where a test is to be used in dif ferent units of a multiunit organization and no significant differences exist be tween units, jobs, and applicant popula tions, evidence obtained in one unit may also suffice for the other. Similarly, where the validation process requires the collection of data throughout a multi- unit organization, evidence of validity specific to each unit may not be required. 3. M i n i m u m s t a n d a r d s f o r v a l id a t io n . For the purpose of satisfying this order, empirical evidence in support of a test's validity must be based on studies em ploying generally accepted procedures for determining criterion-related validity, such as those described in the American Psychological Association’s “Standards for Education and Psychological Tests and Manuals.” (Evidence of content or construct validity may also be appropri ate where criterion-related validity is not technically feasible, but it should be ac companied by sufficient information from job analyses to demonstrate the rele vance of the content in the case of job knowledge or proficiency tests or the construct in the case of trait measures.) Although any appropriate validation strategy may be used to develop such empirical evidence, the following mini mum standards must be met by any ap proach used so far as applicable: (1) Where a predictive validity study is conducted, the sample of subjects must be representative of the normal or typical candidate group for the job(s) in ques tion. Where a concurrent validity study is conducted, the sample should be, so far as technically feasible, representa tive of the minority groups currently in cluded in the candidate population. (2) Tests must be administered and scored under controlled and standardized conditions, with proper safeguards em ployed to .protect the security of test scores and insure that scores do not enter into any judgments of individual ade quacy that are to be used as criterion measures. (3) The work behaviors or other cri teria of employee adequacy which the test is intended to predict or identify must be fully described. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attend ance, and tenure. In view of the possi bility of bias inherent in subjective eval uations, supervisory rating techniques FEDERAL REGISTER, VOL. 33, NO. 186— TUESDAY, SEPTEMBER 24, 1968 60 should be developed carefully and the ratings themselves examined closely for evidence of bias. Whatever criteria are used, however, they should represent major or critical work behaviors as re vealed by careful job analyses. (4) Presentations of the results of a validation study must include graphical and statistical representations of the re lationships between the test and the cri teria, permitting judgments of the test’s utility in making predictions of future work behavior. (5) Data must be generated and re sults reported separately for minority and nonminority groups wherever technically feasible, 4. U .S . e m p l o y m e n t s e r v ic e v a l id a t io n . Compliance with this order shall be the responsibility of the contractor; however, where testing services of a State Employ ment Agency are used, the following rules shall apply: (1) In cases where a contractor uses the testing services of a State Employ ment Service Office, and the tests used by the State Office have been validated pur suant to the requirements of this order, the employer shall have on file the U.S. Employment Service certification of this fact, which shall be accepted as compli ance with this order. (If further tests are required by the contractor, he remains responsible for determination of the va lidity of such further tests.) (2) In cases where a contractor uses the testing services of a State Employ ment Service Office and the tests used by the State Office have not been validated for particular jobs pursuant to the re quirements of this order, the contractor shall, as a condition for future use, co operate with the State Office to effect validation of tests as they relate to job requirements of the contractor. 5. U se o f v a l i d i t y s tu d i e s . In cases where the validity of a test cannot be determined pursuant to section 3 above (e.g., the number of subjects is less than that required for a technically adequate validation study, or an appropriate cri terion measure cannot be developed), evi dence from validity studies conducted in other organizations, such as that reported in test manuals and professional litera ture. may be considered acceptable when: (a) The studies pertain to jobs which are comparable (i.e., have basically the same task elements), and (b) there are no major differences in contextual variables or sample composition which are likely to significantly affect validity. 6. A s s u m p t i o n s o f v a l id i t y , (a) Under no circumstances will the general reputa tion of a test, its author or its publisher, or casual reports of test utility be ac cepted in lieu of evidence of validity. Specifically ruled out are: assumptions of validity based on test names or de scriptive labels, all forms of promotional literature, data bearing on the frequency of a test’s usage, testimonial statements of sellers or users, and other nonempiri- cally based and anecdotal accounts of testing practices or testing outcomes. (b) Although professional supervision of testing activities may help greatly to insure technically sound and nondts- MOTSCSS criminatory test usage, such involvement alone shall not be regarded as constitut ing satisfactory evidence of test validity. I . C o n t in u e d u s e o f t e s t s . Under cer tain conditions, s contractor may be per mitted to continue the use of a test which is not a t the moment fully supported by the required evidence of validity. If, for example, evidence of criterion-related validity tn a specific setting is technically feasible and required but not yet ob tained, the use of the test may continue P r o v id e d : (&> The contractor can cite substantial evidence of validity as de scribed in section 5 above, and (b) he has in progress, validation procedures which are designed to produce, within a reasonable time, the additional data re quired. I t is expected also th at the con tractor will use cut-off scores which yield score ranges broad enough to permit the identification of criterion-relsted validity. 8. A f f i r m a t i v e a c t io n . Nothing in this order shall be interpreted as diminishing a contractor’s obligation to undertake affirmative action to ensure that appli cants and current employees are treated without regard to race, creed, color or national origin. Specifically, the use of tests which have been validated pursu ant to this order does not relieve the contractor of his obligation to take posi tive and affirmative action in affording employment and training to minority group personnel. 9. D e f in i t i o n o f " t e s t . ” For the purpose of this order, "test” is defined as any paper-and-pencil or performance meas ure used to judge qualifications for hire, transfer or promotion. This definition in cludes, but is not restricted to, measures of general intelligence, mental ability, and learning ability; specific intellectual abilities; mechanical, clerical and other aptitudes; knowledge and proficiency; occupational and other interests; and personality or temperament. 10. O t h e r s e l e c t i o n t e c h n iq u e s . Selec tion techniques other than tests may also be improperly used so as to have the effect of discriminating against minority groups. Such techniques include, but are not restricted to, unscored interviews, unscored application forms, and records of educational and work history. Where there are data suggesting that such un fair discrimination exists (e.g., differen tial rates of rejecting applicants from different ethnic groups or disproportion ate representation of some ethnic groups in employment in certain classes of jobs), then the contractor may be called upon to present evidence concerning the validity of his unscored procedures as well as of any tests which may be used, the evi dence of validity being of the same types referred to in sections 2 and 3. If the contractor is unable or unwilling to per form such validation studies, he has the option of adjusting employment proce dures so as to eliminate the conditions suggestive of unfair discrimination. II. C o m p l ia n c e r e v ie w , (a) Contractor practices in the use of employment tests and other selection techniques as qualifi cation standards should be examined carefully for possible noncompliance 14593 with the requirements of Executive Order 11246 when: (1) There is a lack of evidence of test validity, but the contractor continues to use test, scores as a basis for personnel decisions; or, (2) The contractor is unwilling to conduct test validation studies, when such studies are technically feasible, or otherwise provide evidence of validity as a requirement for continued test usage; or, (3) When other selection techniques are used as identified in section 10 above, and there is information suggesting un fair discrimination in employment of minority groups, and the contractor refuses to validate these techniques or to eliminate the conditions suggestive of unfair discrimination, (b) A determination on noneompli- ance pursuant to the provisions of this order shall be grounds for the imposi tion of sanctions under Executive Order 11246. (c) The use by a contractor of to ts or other selection techniques for which there is evidence of unfair discrimina tion or differential validity patterns for minority and nonminority groups, and no adjustment has been made for this finding, shall be grounds for the imposi tion of sanctions under Executive Order 11246. 12. E x e m p t i o n s . (&’) Bequests for ex emptions from this order or any part thereof must be made in writing,'with justification, to the Director, Office of Federal Contract Compliance. Washing ton, D.C., and shall be forwarded through and with the endorsement of the agency head. (b) The provisions set forth above shall not apply to any contract when the head of the contracting agency deter mines th at such contract is essential to the national security. Upon making such a determination, the agency head will notify the Director, in writing, within 30 days. 13. A g e n c y i m p l e m e n t a t i o n p r o g r a m . (a) Each agency shall, within 90 days of the date of this order, submit a pro gram to implement this order. The pro gram shall include the establishment of priorities for enforcement th at meet the following criteria: Reviews of the selec tion programs of— (1) Contractors employing 2,500 or more beginning 6 months from the date of this order; (2) Contractors employing 1,000 or more beginning 1 year from the date of this order; (3) All other contractors beginning 18 months from the date of this order. (b) Notwithstanding subsection (a) of this section, each agency shall iden tify from agency files of compliance re views or complaints those files which indicate a probability of the use of tests and other selection techniques not in accordance with the provisions of this order. <c) The agency shall after such identi fication and consultation with the Office of Federal Contract Compliance, inform the contractor of the possible violation FEDERAL REGISTER, VOL. 33, NO. 186— TUESDAY, SEPTEMBER 24, 1968 61 14394 of the order and ask for a written pro gram to be submitted within 30 days that will conform to the order. <d) Each agency shall assign respon sibility for compliance with this order at Headquarters level and furnish the name of the assigned officer to the Office o f Federal Contrast Compliance. (e) Each contracting and administer ing agency shall issue the following in structions to field personnel concerning procedures to be adopted on investiga tions under this order: (1) The Investigator will make only a determination of facts from the company records and appropriate interviews with (2) He will carefully document the ef fect of the current selection program on minority applicants and . ' . (3) He will inquire as to whether vali dation studies have been completed for answer is affirmative, the investigator will obtain copies of the validation studies to include in the report. NOTICES (4) With respect to other selection techniques as discussed in section 10, if information suggests the existence of un fair discrimination against minority groups, we will inquire as to whether validation studies have been completed for these techniques. If the contractor’s answer is affirmative, the investigator will obtain copies of the validation studies to include in the report. I f the answer Is negative, he will inquire as to whether such validation studies are be ing undertaken or, if not, what the contractor contemplates to eliminate the conditions suggestive of unfair tract compliance review and complaint 14. E f f e c t o f t h i s o r d e r <m o t h e r a n d r e g u la t io n s , (a) All orders, ins . tions, regulations, said memoranda of the of Labor, other officials of the Department of Labor and contracting are superseded to the extent th at they are inconsistent herewith, <b> Nothing in this order shall fee in terpreted to diminish the present eon- 15. A u t h o r i t y , (a) General: Executive Order 11246, dated September 24, 1965, and Secretary’s Order No. 28-85, dated October 5, 1985 (31 FJR. 6931). (b) Specific: (1) Part n , Subpart C, section 205 of Executive Order 11246. (2) Part II, Subpart G, section 206 (a) and <b> of Executive Order 11246. (3) Part HI, section 991 of Executive (4) Part in, section 309 (a) and (b) of Executive Order 11246. <5> Part XV, section 403(b) of Execu tive Order H 24®.. shall fee Signed a t Washington, D.C., this 9th y of September 1868. W irxasB W ikts, S e c r e t a r y o f L a b o r . f iD 'R A l REGISTER VOl. 33, NO. 184— TUESDAY, SEPTEMBER %% !S68 MEILEN PRESS INC. — N. Y. C.