Griggs v. Duke Power Company Brief for Appellants

    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.