Hammon v. Barry Brief Amici Curiae
Public Court Documents
November 20, 1985
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UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
Nos. 85-5669, 85-5670, 85-5671
MARVIN K. HAMMON, et al ■ .
Plaintiffs-Appellees,
v.
MARION S. BARRY, JR., MAYOR OF THE
DISTRICT OF COLUMBIA, et al. .
Defendant s-Appellees.
KEVIN MICHAEL BYRNE, et al..
Plaintiffs-Appellees,
v.
THEODORE R. COLEMAN, D.C. FIRE CHIEF, et al.,
Defendants-Appel1ees.
UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
DISTRICT OF COLUMBIA, et al..
Defendants-Appellees.
On Appeal from the United States District Court
for the District of Columbia
BRIEF AMICI CURIAE FOR THE LAWYERS' COMMITTEE FOR CIVIL
RIGHTS UNDER LAW, THE WASHINGTON LAWYERS' COMMITTEE
FOR CIVIL RIGHTS UNDER LAW, AND THE NAACP LEGAL DEFENSE
AND EDUCATIONAL FUND, INC.
BARRY L. GOLDSTEIN
NAACP Legal Defense &
Educational Fund
806 Fifteenth St., N.W.
Suite 940
Washington, D.C. 20005
(202) 638-3278
WILLIAM L. ROBINSON
RICHARD T. SEYMOUR
Lawyers' Committee for
Civil Rights Under
Law
Suite 400
Washington, D.C. 20005
(202) 371-1212
(List of Counsel Continued on Inside Cover)
JULIUS LeVONNE CHAMBERS
NAACP Legal Defense & Educational
Fund
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 219-1900
RODERICK V.O. BOGGS
Washington Lawyers'
Committee for Civil
Rights Under Law
1400 'Eye' St., N.W.
Suite 450
Washington, D.C. 20005
(202) 682-5900
Dated: November 20, 1985
INTEREST OF AMICI
Table of Contents
Page
1
COUNTER-■STATEMENT OF THE FACTS 3
A. Introduct ion 3
B. Evidence of Past Discrimination 3
1. Adverse Impact of the 1980
and 1984 Hiring Tests 4
a) Delay in Hire 4
b) The 1980 Hiring Test 6
c) The 1984 Hiring Test 9
d) The Stipulations 11
e) The District Court's Findings 13
2. The Tests' Lack of Validity 14
a) The Hearing Examiner's Findings 14
b) The Stipulations
c) The District Court's Findings
C. The Affirmative Action Plan
SUMMARY OF ARGUMENT
ARGUMENT
17
18
18
21
25
A. An Affirmative Action Plan Designed To Ensure
That Illegal Discrimination Does Not Occur Is
an Appropriate and Well-Accepted Use of
Affirmative Action 25
1. The Limited Purpose and Effect of the
Fire Department's Hiring Affirmative
Action Plan 25
2. The Use of Affirmative Action To
Neutralize the Discriminatory
Consequences of an Invalid Selection
Procedure Has Been Approved by the Courts 26
Page
3. The Use of Affirmative Action to
Neutralize the Discriminatory
Consequences of an Invalid Selection
Procedure is Authorized
by the EEOC's Affirmative Action
Guidelines 34
4. The Use of Affirmative Action to
Neutralize the Discriminatory
Consequences of an Invalid Selection
Procedure is Authorized by the Justice
Department's Own Regulations 37
B. The Sweeping Assertions of the Justice Department
and Local 36 that Affirmative Action Is Illegal
and Unconstitutional Are Without Merit 40
CONCLUSION 48
APPENDICES
Relevant Parts of the Uniform Guidelines
on Employee Selection Procedures,
28 C.F.R. Part 50.14 (1985) la
EEOC Guidelines on Affirmative Action,
29 C.F.R. Part 1608 (1985) 10a
Relevant Parts of Adoption of Questions
and Answers to Clarify and Provide a
Common Interpretation of the Uniform
Guidelines on Employee Selection
Procedures 17a
Table of Authorities
Pages
1• Cases
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)................................. 30
Anderson v. City of Bessemer
53 U.S.L.W. 4314 (1985) .............................. 47
Association Against Discrimination v. City
of Bridgeport, 594 F.2d 306 (2d Cir. 1979)...... . 31
Berkman v. City of New York, 536 F.Supp. 177
(S.D.N.Y. 1982), aff'd, 705 F.2d 584 (2nd Cir.
1983)..................... .......................... 30
- i i -
Pages
Berkman v. City of New York, 705 F.2d 584
(2d Cir. 1983)................................... . .. 33, 34
Britton v. South Bend Community School corpora
tion, Slip Opinion, No. 84-2841 (7th Cir.,
Oct. 21, 1985)......................... ......... . .
Bushey v. N.Y. State Civil Service Comm'n
733 F.2d 220 (2d Cir. 1984), cert, denied,
53 U.S.L.W. 3477 (1985)....... ....................
Commonwealth of Pennsylvania v. Local 542,
Operating Enqineers, F.2nd
38 FEP Cases 673 (3rd Cir. 1985)................. . . 44
Commonwealth of Pennsylvania v. Rizzo, 13 FEP Cases
1475 (E.D.Pa. 1975)...... ........................ . . 33
Devereaux v. Geary, 596 F.Supp. 1481 (D.Mass. 1984).. . 46
Devereaux v. Geary, 765 F.2d 268 (1st Cir. 2985)___ _ . 44
Diaz v. American Telephone & Telegraph,
752 F.2d 1356 (9th Cir. 1985)..................... . 45
EEOC v. Local 638, Sheet Metal Workers,753 F.2d
1172 (2d Cir. 1985), cert, granted, No. 84-1656,
54 U.S.L.W. 3223 (Oct. 7, 1985)................. . . 44
Ensley Branch, NAACP v. Seibels, 14 FEP Cases 670
(N.D. Ala. 1977), aff’d, 616 F.2d 812 (5th Cir.),
cert, denied, 449 U.S. 1061 (1980)................ . 33
Ensley Branch, NAACP v. Seibels, 616 F.2d 812
(5th Cir.), cert, denied, 449 U.S. 1061 (1980).... . 30
Firefighters Institute for Racial Equality v.
City of St. Louis, 588 F.2d 235 (8th Cir. 1978),
cert, denied, 443 U.S. 904 (1979)................. . 33
Firefighters Institute for Racial Equality v.
City of St. Louis, 616 F.2d 350 (8th Cir. 1980),
cert, denied, 452 U.S. 938 (1981)................. . 30
Firefighters Local Union No. 1784 v. Stotts,
104 S.Ct. 2576 (1984)..................... . 44, 45
Fullilove v. Klutznick, 448 U.S. 448 (1980).... . 42
Grann v. City of Madison, 738 F.2d 786
(7th Cir. 1984).....
- iii -
. 45
Griggs v. Duke Power Co., 401 U.S. 424 (1971)......... 25
Guardians Ass'n of New York City v. Civil
Service Comm'n, 630 F.2d 79 (2d Cir. 1980),
aff'd on other grounds, 463 U.S. 582 (1983)....... 32
Kirkland v. New York State Dept, of correctional
Services, 628 F.2d 796 (2d Cir. 1980),
cert, denied, 450 U.S. 980 (1981).................. 26 , 31, 34
Kirkland v. N.Y. State Dept, of Correctional
Services, 711 F.2d 1117 (2d Cir. 1983)............. 31
Kromnick v. School District of Philadelphia,
739 F.2d 894 (2d Cir. 1984), cert, denied,
53 U.S.L.W. 7483 (1985)............................. 45
Local 53, Asbestos Workers v. Vogler,
407 F . 2d 1047 (5th Cir. 1969)................... . 33
Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981)...... 27
McDaniel v. Barresi, 402 U.S. 39 (1971)............... 42
NAACP v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972),
aff'd, 493 F. 2d 614 (5th Cir. 1974)................ 27
North Carolina Bd. of Education v. Swann,
402 U.S. 43 (1971).................................. 42
Oburn v. Shapp, 393 F.Supp. 561 (E.D.Pa. 1975),
aff'd, 521 F . 2d 142 (3d Cir. 1975)................. 33, 34
Paradise v. Prescott, 767 F.2d 1514 (5th Cir.1985).... .............. ............................. 45
Pullman-Standard Co. v. Swint, 456 U.S. 273 (1982)___ 47
Regents of the University of California v. Bakke,
438 U.S. 265 (1978)................................ 42, 45,
46 *
Reynolds v. Sheet Metal Workers Local 102,
498 F.Supp. 952 (D.D.C. 1980), affd,
226 U.S. App. D.C. 242, 702 F.2d 221 (1981)..... . 30
Segar v. Smith, 238 U.S. App. D.C. 103,
738 F.2d 1249 (1984), cert, denied,
53 U.S.L.W. 3824 (1985).............................25f 41
Pages
iv
Pages
Sims v. Local 65, Sheet Metal Workers,
353 F.Supp. 22 (N.D. Ohio 1972), aff'd in
pertinent part, 489 F.2d 1023 (6th Cir. 1973)..... 31
Stanley Works v. Federal Trade Comm'n,
469 F. 2d 498 (2nd Cir. 1972)........................ 23
Swann v. Charlotte-Mecklenburg Bd. of Education,
402 U.S. 1 (1971).................................... 42
Turner v. Orr, 759 F.2d 817 (11th Cir. 1985).......... 45
United Jewish Organizations of Williamsburgh
v. Carey, 430 U.S. 144 (1977)................... . 42
United States v. City of Buffalo, 609 F.Supp.
1252 (W.D.N.Y. 1985), appeal pending............ 25
United States v. City of Chicago, 631 F.2d 469
(7th Cir., 1980).... ........ ..................... . 30
United States v. City of Chicago, 663 F.2d 1354
(7th Cir. 1981)(en banc)............................ 28, 33
United States v. Nassau County, C.A. Nos.
77-C-1881 and 77-C-1869 (W.D.N.Y., March 1982).___ 28
United States v. New York, 21 FEP Cases 1286
(N.D.N. Y. 1979)........ . .......... ................. 27
Van Aken v. Young, 750 F.2d 43 (6th Cir. 1984)....... 45
Vanguardsv. City of Cleveland, 753 F.2d 479
(6th Cir. 1985), cert, granted, No. 84-1999,
54 U.S.L.W. 3223 (Oct. 7, 1985).................... 45
Vulcan Society of Westchester County, Inc.
v. Fire Dept, of City of White Plains,
505 F.Supp. 955 (S.D.N.Y. 1981)........ ........... 30 , 31
Williams v. City of New Orleans,
729 F. 2d 1554 (5th Cir. 1984) (en banc)............. 41
Wygant v. Jackson Bd. of Education, 746 F.2d 1152
(6th Cir. 1984), cert, granted, No. 84-1340,
53 U.S.L.W. 3739 (April 15, 1985)............... 45
v
2. Statutes, Regulations, and Other Authorities
Pages
Title ViI of the Civil Rights Act of 1964
(as amended), 42 U.S.C. §§ 2000e et seq............passim
P.L.. 92-261, 86 Stat. 103 (Equal Employment
Opportunity Act of 1972)...... ..................... 36
Reorganization Plan Number 1 of 1978,
43 Fed,Reg. 19807.................................... 35, 36
Executive Order 11246 (September 24, 1965,
last amended by Executive Order 12086,
effective October 8 , 1978).......................... 43
Executive Order 12067 (June 30, 1978)................. 38
Adoption of Questions and Answers to Clarify and
Provide a Common Interpretation of the Uniform
Guidelines on Employee Selection Procedures,
43 Fed.Reg. 11996 (1979)............................ 38
Affirmative Action Guidelines, Equal Employment
Opportunity Commission, 29 CFR Part 1608............ 35, 36 ,
10a
Policy Statement on Affirmative Action Programs
for State and Local Government Agencies,
41 Fed.Reg. 38,814 (Sept. 13 , 1976)................. 37 , 7a
Uniform Guidelines on Employee Selection
Procedures, 28 CFR Part 50 .14........................ 29 , 37 ,
la
- vi
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
Nos. 85-5669, 85-5670, 85-5671
MARVIN K. HAMMON, et al . .
Plaintiffs-Appellees,
v.
MARION S. BARRY, JR., MAYOR OF THE
DISTRICT OF COLUMBIA, et al . ,
Defendants-Appellees.
KEVIN MICHAEL BYRNE, et al..
Piainti ffs-Appellees,
v.
THEODORE R. COLEMAN, D.C. FIRE CHIEF, et aJL*.,
Defendants-Appellees.
UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
DISTRICT OF COLUMBIA, et al . .
Defendants-Appellees.
On Appeal from the United States District Court
for the District of Columbia
BRIEF AMICI CURIAE FOR THE LAWYERS' COMMITTEE FOR CIVIL
RIGHTS UNDER LAW, THE WASHINGTON LAWYERS' COMMITTEE
FOR CIVIL RIGHTS UNDER LAW, AND THE NAACP LEGAL DEFENSE
AND EDUCATIONAL FUND, INC.
INTEREST OF AMICI
The Lawyers' Committee is a nationwide civil rights
organization, with local offices in Washington, Philadelphia,
Boston, Chicago, Jackson, Denver, Los Angeles, and San Fran
cisco. It was formed by leaders of the American Bar in 1963,
at the request of President Kennedy, to provide legal represen
tation to blacks who were being deprived of their civil rights.
Over the years, the national office of the Lawyers' Committee and
its local offices have represented the interests of blacks,
Hispanics, and women in many hundreds of class actions in the
fields of employment discrimination, voting rights, equalization
of municipal services, and school desegregation. Well over a
thousand members of the private bar, including former Attorneys
General, former presidents of the American Bar Association^ and
other leading lawyers, have assisted it in these efforts.
The Washington Lawyers' Committee for Civil Rights
Under Law has represented the plaintiffs in scores of employment
discrimination class actions in the Washington area.
The NAACP Legal Defense and Educational Fund, Inc., is
a nonprofit corporation whose principal purpose is to secure the
civil and constitutional rights of minorities through litigation
and education. For more than 40 years, its attorneys have
represented plaintiffs in thousands of civil rights cases,
including many significant cases before the Supreme Court and
this Court.
Many of the employment discrimination cases brought by
amici are against employers which could have cured their problems
without judicial intervention if they had developed and implemen
ted reasonable affirmative action plans such as the plan at issue
in the case at bar. Employers will not develop or implement such
plans if the plans will then be subject to the type of attack
- 2 -
made by the Attorney General in the case at bar. Amici and their
clients have a direct interest in securing a rule of law encour
aging employers to address and resolve their own problems, so
that the filing of enforcement lawsuits will be unnecessary.
Amici were granted leave to appear as amici below, and
at the invitation of the district court participated in the
briefing and argument on many of the key issues below.
COUNTER-STATEMENT OF THE FACTS
A. Introduction
Amici offer this counter-statement of the facts because
the descriptions of the record contained in the briefs of the
United States and of Local 36 are both inaccurate and highly
misleading. In offering this counter-statement, we have in
several places set out the contrasting descriptions of the record
offered by the plaintiff and its amicus.
B • Evidence of Past Discrimination
In October 1980, Jon F. Sheffield and Theodore
0. Holmes filed administrative complaints of discrimination by
the District of Columbia Fire Department in hiring, promotions,
and other aspects of employment. The complaints were filed with
the District of Columbia Office of Human Rights, and alleged
violations of Title VII of the Civil Rights Act of 1964, and
District of Columbia laws.-*- The 50 days of evidentiary hearings 1
1 Hearing Examiner's Report [hereinafter, "Report"] dated
September 20, 1983 at 1-2, Defendants' Appendix [hereinafter,
"D.App."] at 26-27. The Report is Exhibit 12 to the March
14, 1985 Statement of Stipulated Material Facts [hereinafter,
"Stipulation"]. Stipulation 1f 49, D.App. 21.
3
on these charges began on December 10, 1981 and ended on April 6 ,
1982.2
Much of the record bearing on the question of past
hiring discrimination by the District of Columbia Fire Department
stems from the findings on hiring issues of Patrick E. Kelly, a
Hearing Examiner for the District of Columbia's Office of Human
Rights. Neither the United States nor Local 36 challenged
the accuracy of any of the Hearing Examiner's findings on the
hiring issues when the case was before the district court,
although they attempt to make such challenges for the first time
in this Court.
1• Adverse Impact of the 1980
and 1984 Hiring Tests
a) Delay in Hire
The history of the hiring tests for the D.C. Fire
Department was set forth in Finding 29 of the Hearing Examiner's
Report [hereinafter, "Report"] at 21-22, D.App. 46-47:
29. Prior to January 1, 1980, the responsi
bility for the testing of District of Columbia
Firefighters was vested with the Office of
Personnel Management. The Office of Personnel
Management utilized Test 21 which is essentially a
multiple choice test, and applicants were placed
on the register in rank order according to their
score. This meant that Whites who tended to score
well as a group were constantly being inserted on
the registers over Blacks, who tended to cluster
near the passing score of 70. (Tr. vol. 28, Pages
55-57). At the request of the Respondent (DCFD)
the process was changed in the early 1970['s], and
subsequently every register was exhausted before a
new examination could be administered. (Ibid).
2 Report at 12, D.App. 37 (noting the obvious typographic
error in the ending date); Stipulation 1f 47, D.App. 47.
4
The Respondent (DCFD) contends that this change
was sought as a means of improving its minority
work force.
Neither the United States nor Local 36 contested this finding
below.
Because of the policy of exhausting one register before
another register is certified, there can be adverse impact in
passing rates, but if the policy is actually followed and there
is no falloff in applicants' interest because of long delays in
hire, there would not usually be any adverse impact in the hire
rates of those who passed the test. If 50% of the persons
passing the test were black, barring unforeseen complications 50%
of the hires will be black. In these circumstances, adverse
impact as to the persons passing the test occurs in terms of how
long applicants are forced to wait before they are hired.^ The
The^ United States and Local 36 argue that there has
been no prior hiring discrimination by the Fire Department. The U.S. brief states at 35:
... the Department since 1981 has been hiring blacks
at a rate that equals or exceeds their representation
in the District labor force and any effects of the
allegedly unlawful 1981 [sic] examination have been
fully cured by the 1983 OHR Order and 1984 consent decree __ .
(Emphasis supplied). Local 36 states in its brief at 4:
Rather, on this record ... there has been no discrim
ination in hiring during the 22-year period for which
the record contains data.
(Emphasis in original). However, neither brief discusses
or considers the plight of black applicants forced to wait years
longer than white applicants before they can be reached for hire
on the rank-ordered list. Nor does either the United States or
its amicus choose to discuss the significant adverse impact in
hiring rates from the 1980 examination, or the significant
- 5 -
68. When a cutoff score is used at chance
level and hiring continues over a period of time,
the major concern is the loss and harm suffered by
those hired later, or not hired at all, compare[d]
to the benefit received by those hired first. The
difference in benefit is considerable and under
the general principle that Title VII says you
shall not discriminate in conditions of employ
ment, that is certainly true in these cases where
a firefighter['s ] eligibility to sit for promo
tional examinations is regulated by his or her
date of entry of employment with D.C.F.D. . . .
b) The 1980 Hiring Test
Hearing Examiner directly addressed this situation:4
On
administered
["FST"]. The
of the 1,362
screening, al
November 22, 1980, the D.C. Office of Personnel
the 1980 Entry Level Firefighters Selection Test
initial screening for the 1980 test disqualified 388
applicants. Of those who survived the initial
1 but 15 passed the test. Blacks were 75.11% of the
original 1,362 applicants, and 74.35% of the 959 applicants who
passed the test.5 The applicants passing the test were ranked in
the order of their scores, and hires were made in accordance with
rank order. The first twenty-three vacancies were filled on April
27, 1981; only two blacks were among this group of hires.®
Paragraph 9 of the Stipulation, D.App. 9, sets forth * 4 * *
adverse impact in passing rates from the 1984 examination. See
infra at 7-10.
4 Report at 31, D.App. 56.
® Findings 4, 5 and 26 at pp. 14 and 20 of the Report,
D.App. 39 , 45; Stipulation 1Mf 18-19, D.App. 11.
® Findings 7, 9 at p. 15 of the Report, D.App. 40.
- 6 -
the hiring statistics for the 1980 examination:7 8 *
Year Total Hires White Hires Black Hires % Black
1981 23 21 2 8.7%
1982 114 34 77 67.5%
1983 77 15 62 80.5%
1984 14 3 11 78.6%
At the oral argument in the district court, amici pointed out
that 29% of the white hires were hired in 1981, within roughly a
year after they took the test. Only 1% of the black hires
were hired within a year after they took the test. The appli
cants hired in 1983 and 1984 were forced to wait two or three
years before they were hired. Only 25% of the white hires had to
wait this long, but 48% of the black hires had to endure this
wait before they were hired.®
Moreover, only 228 applicants were hired from the
November 1980 examination, although 959 applicants passed. 73
whites were hired, constituting 35.6% of the 205 whites who
passed the test and 35.3% of the 207 whites who took the test.
152 blacks were hired, constituting 21.3% of the 713 blacks who
passed the test and 21.0% of the 724 black applicants who took
the test.® The racial disparity in hiring rates was statisti
7 The three Hispanic hires in 1982 are not shown here,
although their hires are included in the total and reflected in
the percentages shown.
8 March 23, 1985 Hearing Tr. at 103-04.
Q The racial breakdown of test-takers is set forth in
Stipulation if 19, D.App. 11. The racial breakdown of test-
passers is set forth at Finding 5 of the Report, D.App. 39.
- 7 -
cally significant; the difference between the expected rate of
hire and the actual rate of hire is 2.67 standard deviations,
corresponding to a finding of statistical significance at less
than the .008 level (less than eight chances in a thousand of
this racial disparity, or a larger racial disparity, occurring by
chance). Amici presented the standard-deviation analysis to the
Court below, were asked to set forth the calculations in writing,
and did so.-10 11
The developer of the 1980 FST "admits that if selec
tions were made from the top scoring applicants it could be
expected that the FST would show adverse impact against Blacks
(Respondents Exhibit M, Page Vii; Pages 57-61).1,11 The District
of Columbia Office of Personnel "was aware of the possible
adverse impact that would be caused if the FST was used oper
ationally, but decided to use the test operationally as a rank
ordering selection procedure. (Tr. Vol. XIV, Page 116)."12 The
District of Columbia arranged for the Personnel Decisions
Research Institute to review the validation study for the test,
and the Institute reported that, if the test were used in ranking
applicants, "it would increase the adverse impact." The Hearing
March 23, 1985 Hearing Tr. at 101, 103. The calculations
were set forth in the Affidavit of Richard T. Seymour, attached
to amicj|s March 25, 1985 Submission of Materials Pursuant to the
Instruction of the Court. The equivalence figure for 2.67
standard deviations was provided to amici by a statistician using
standard reference works.
11 Finding 32 of the Report, D.App. 48.
12 Finding 34 of the Report, D.App. 49.
- 8 -
Examiner continued:13
Therefore it can be concluded that Respondent
(DCOP) was specifically aware of the predicted
adverse impact of the FST as early as February 5,
1981.
The District of Columbia's Director of Personnel had set up a
special task force in the D.C. Office of Personnel, and was
informed in June 1981 that the 1980 FST had adverse impact
against blacks.1 ̂ The Chief of the Recruitment and Examination
Division of the Office of Personnel admitted in testimony that
"the manner in which the FST was used resulted in an adverse
impact on protected groups. (Ibid; Vol. 16, Page 18). "15
c) The 1984 Hiring Test
The parties stipulated below that:1®
16. Components of the 1984 test were substan
tially the same as the corresponding compenents of
the 1980 test; but one component, following oral
directions, was revised and substantially
modified.
In addition to the likelihood that two substantially
similar tests will have similar degrees of adverse impact against
blacks, the parties also stipulated to racially disparate passing
rates on the 1984 test:17
13 Finding 36, D. App. 49.
14 Finding 72, D. App. 56-57.
15 Finding 75, D. App. 57.
16 Stipulation,, E>. App . 11.
17 Stipulation 1f 24, D.App.
- 9 -
Race Test-Take rs Test-Passers Percent Who Passed
White 492 486
Black 1,050 830
These differences are also statistically significant; the
difference between the expected number of blacks passing the test
and the actual number is 3.6 standard deviations. This is
statistically significant at less than the .0004 level, meaning
that there are less than four chances in ten thousand that this
racial disparity, or a larger racial disparity, could have
occurred by chance.
In addition, the parties stipulated that,, although 79%
of the applicants passing the 1984 test were black, blacks
constituted only 12% of the first 100 persons on a rank-ordered
certificate, only 26% of the second 100 persons on such a
certificate, only 37% of the third 100 persons on a rank-ordered 18
98.8%
79.0%
18 Calculation of counsel, performed in the same manner
which is set forth in the Affidavit of Richard T. Seymour
submitted to the district court on March 25, 1985. The figures are:
Percent of Test-Takers Who Were Black: 64.6%
Percent of Test-Takers Who Were Not Black: 35.4%
Number of Test-Passers: 1,384
Expected Number of Blacks Passing the
Test (.644 times 1,384) 894
Actual Number of Blacks Passing the Test 830
Observed Difference Between Expected and
Actual Numbers (Shortfall) 64
Standard Deviation (square root of the
product of .644 and .354 and 1,384) 17.8
Number of Standard Deviations Between
Expected and Actual Values 3.6
The equivalence figure in text was obtained by counsel from a
statistician who consulted standard reference texts.
- 10
certificate, and only 41% of the fourth 100 persons on a rank-
ordered certificate.19 Blacks would constitute only 25% of the
first 300 names on a rank-ordered certificate, and if the 228
hires from the 1980 list are a guide, most hires from the 1984
list are likely to be drawn from the top 300 names.20 This
result is closely similar to the results from the 1980 test, in
which blacks constituted 20.8% of the first 300 names on the
list.21
d) The Stipulations
Regardless of the positions being taken in this Court
by the United States and by Local 36, there can be no reasonable
question that all parties below-- expressly including appellant
and its amicus---stipulated to the adverse impact of both the
1980 and 1984 tests:22
17. Both the 1980 test and the 1984 test had
an adverse impact upon Black applicants as more
fully described below.
* * *
20. The hearing examiner's finding of
adverse impact [as to the 1980 test] is based upon
Stipulation If If 25, 27, D.App. 12-14.
2 0 It is not possible to predict with certainty how far down
the list the Fire Department will have to go in meeting its need
for new hires. Some applicants may no longer be available by the
time they are reached, particularly if they are not reached until
years after they took the test. Other applicants may still be
available, but may not be able to meet the medical and physical
requirements of the Fire Department. Their rejection then
requires the Fire Department to continue down the list.
21 Stipulation 1f 21, D.App. 12.
22 Stipulation, D.App. 11, 13, 15.
- 1 1
the rank order use of the examination, because
such use resulted in a substantially different
rate of selection of Black and White applicants.
* * *
26. The basis of establishing the pass point
[for the 1984 test] was to eliminate the adverse
impact of the examination and to meet the 80% rule
of thumb for determining adverse impact discussed
in the Uniform Guidelines on Employee Selection
Procedures.
* * *
30. The AAP requires the use of multiple
certificates to select firefighters and is
designed solely to eliminate the racial and sexual
disparity which would exist if the examination
results were used in rank order.
e) The District Court's Findings
The district court recited the findings of the hearing
examiner as to the adverse impact of the 1980 test, App. 36-37,
and in reliance on the above-described record and stipulations
stated:
None of the parties herein dispute that for
many years the District of Columbia Fire Depart
ment discriminated against blacks.
App. 8 . The court then addressed the 1984 hiring test, and
stated:
Like the 1980 test which Hearing Examiner
Kelly found not to be valid or job-related, the
1984 entry level examination had an adverse impact
on blacks if selections were made on the basis of
rank order. Indeed, the 1984 test was substan
tially the same as the 1980 test. . . .
The adverse impact of the 1984 test becomes
apparent if selections were to be made on the
basis of rank order. ...
Because rank order use results in this
adverse racial impact, the AAP mandates a proce
12
dure for proportional appointment to the Depart
ment of test passers based on race, sex, and
national origin. These procedures are designed
solely to eliminate the racial, sexual, and ethnic
disparity which would exist if the candidates were
selected in rank order of examination results.
App. 44-45.
The district court expressly found that the applicant-
flow data for the 1980 and 1984 examinations were the most
approrpiate measure of the availability of blacks in the labor
market. App. 53. The district court rejected the D.C. govern
ment's contention that the availability of blacks should be
measured by labor market statistics for the District of Columbia,
and rejected Local 36's arguments in favor of using unweighted
labor force data from the entire Washington, D.C. Standard
Metropolitan Statistical Area. App. 51-53.
Local 36 urges this Court to reject the district
court's finding, on the wholly speculative theory that a recruit
ing effort undertaken in 1980 and/or enactment in 1980 of a
requirement that successful applicants move into the District
within 180 days after hire, resulted in a large increase in
applications filed by blacks. Local 36 brief at 13-14. The union
did not produce an iota of proof in the district court to support
any of the legs on which its arguments before this Court depend:
■-- that there was any meaningful difference
between the recruiting efforts undertaken in
1980 and those undertaken earlier;
---that there was any recruiting effort in 1984
comparable to that in 1980;
- 13
---that there was any change in 1980 in the
proportion of applicants who were black, over
the proportion which had existed earlier; or
-- that there were any special factors whatso
ever artificially inflating the black
applicant flow in 1984 and making the 64.6%
black applicant-flow figure unreliable as an
indicator of what the applicant flow would
have been in prior years.
Such matters are usually required to be proven, rather than
surmised. In any event, Local 36 has raised this contention
solely to help make its point that there is in its view no
adequate basis for the district court to have concluded that
there was substantial underrepresentation of blacks in the ranks
of the D.C. Fire Department over the past decades. Local 36 has
raised no express claim that any speculative increase in the
percentage of applicants who were black in 1980 and 1984 produced
a disproportionately large number of unqualified black appli
cants, so as to evade the thrust of the adverse-impact evidence,
stipulations, and findings as to the 1980 and 1984 hiring tests.
2. The Tests' Lack of Validity
a) The Hearing Examiner's Findings
The hearing examiner heard expert testimony from the
U.S. Office of Personnel Management, which developed the test,
and from Dr. Richard S. Barrett, who was retained by the District
of Columbia's Office of Corporation Counsel to conduct the second
- 14 -
independent review of OPM's validation study. As had the first
independent reviewer, Dr. Barrett found the validation study
inadequate. J
The hearing examiner found that the validation study
for the 1980 test was dependent on the adequacy of the job
analysis performed by OPM,* 24 and then found that the job analysis
was "insufficient under the Uniform Guidelines."25 * 27 28 Although OPM
had agreed that the physical activities of the job of Firefighter
were the most important aspects of the jobs, the 1980 test was
not designed to test physical ability. Although OPM had agreed
that skill in communications was the second most important aspect
of the job, and that cognitive abilities were only the third most
important aspect of the job,2® OPM's test was simply a test of
"general cognitive abilities".22.
The hearing examiner recited one of the basic ground
rules in test validation:2®
40. A test is not of any value to an
employer, nor valid under the [g]uidelines, if it
cannot predict the actual job performance [t]hat
it was designed to do; or if its predictions are
not based upon criterion measures that measure a
substantial number of critical work behaviors for
the job being tested for.
22 Findings 36-77 of the Report, D.App. 49-58.
24 Finding 33 of the Report, D.App. 48.
25 Finding 45, D.App. 51.
Findings 46 and 48 of the Report, D.App. 51-52.
27 Stipulation 1f 15, D.App. 10.
28 Report, D.App. 50.
15
Instead of developing an actual measure of job performance to
fulfill this important task, OPM used paper-and-penci1 tests for
most of its measures of job "performance". The hearing examiner
found:^9
50. No measure of actual job performance was
included in the content measures for the FST.
(Intervenor Exhibit 7, p. 2).
51. All of the criterion measures of the FST
were based on performance in training and all but
one of them are based on cognitive test[s].
(Intervenor exhibit 7, Page 2).
The hearing examiner explained the significance of this
problem:* 30 31
47. The work of a firefighter (Task) is
essentially physical and when performance is
confounded by reactions to danger, heat, physical
and emotional stress, correlations with cognitive
measures are inconvincing as demonstrations of job
relatedness. (Intervenors Exhibit 7, Page 5).
* * *
55. The job of a Firefighter does not
involve filling out multiple choice test[s], but
putting out fires. The job consist[s] of doing
things not writing them down. It is a matter of
being tested for making a response in a way which
is not called for by the situation. (Ibid;
Tr. Vol.XXIV, Page 127).
The hearing examiner then found that the 1980 test
could not validly be used for rank-ordering applicants, because
there was no adequate showing that a higher-scoring applicant
would perform better on the job than a lower-scoring applicant.3-̂-
Report, D.App. 52.
30 Report, D.App. 51, 53.
31 Findings 63-66 of the Report, D.App. 54-55.
- 16 -
The hearing examiner's findings also relied upon
testimony from responsible personnel officials in the District of
Columbia Government. The special task force established by the
Director of the D.C. Office of personnel recommended that the
District of Columbia hire in a manner which eliminated the
adverse impact of the examination, and that the D.C. government
not attempt to defend the job relatedness of the test.22
The Chief of the Recruitment and Examination Division of the
D.C. Office of Personnel, Mr. Dressier, "specifically testified
in the hearing that the FST use of ranking could not be vali
dated."22 Mr. Dressier agreed with Dr. Barrett that the use of
training school grades as a measure of job performance, to
validate the hiring test, "should be suspect."24
b) The Stipulations
Three paragraphs of the Stipulation bear directly on
the validity of the 1980 and 1984 hiring tests:22
22. The District of Columbia accepted these
and other findings of the Hearing Examiner
concerning adverse impact and job relatedness [of
the 1980 test], and does not now contend that the
written examination either had no adverse impact
or is valid and job related.
* "k -k
28. The District of Columbia does not
contend that the pass point [for the 1984 hiring 32
32 Findings 72-73 of the Report, D.App. 56-57.
O'! Finding 74 of the Report, D.App. 57.
24 Finding 77, D.App. 57-58.
25 D.App. 12, 14-15.
- 17 -
test] was based on the needs of the job or was
otherwise linked to a measure of successful job
performance,
29. The District of Columbia has agreed to
validate the examination in accordance with the
May 23, 1984 consent decree in the Hammon case
but, to date, has not done so. In particular,
neither the District of Columbia nor any other
party to these consolidated cases has developed
validity evidence meeting the standards of the
psychological profession showing that those who
score higher on the test are more likely to
perform better on the job than those who score
lower.
c) The District Court's Findings
The district court described the hearing examiner's
findings that the 1980 hiring test was not valid or job-related,
App. 36, 44, and then found that the 1984 hiring test also had
not been shown to be valid:
The examination has not been validated, and there
is no evidence demonstrating that those who score
higher on the examination are more likely to
perform better on the job than those who score
lower on the test. (Joint Stipulation 11 29) .
This is consistent with the findings of Hearing
Examiner Kelly.
App. 44-45.
C. The Affirmative Action Plan
The January 3, 1985 affirmative action plan
[hereinafter, "AAP"] in question is 228 pages long. It analyzes
employment patterns for uniformed positions in the Fire Depart
ment, exhaustively analyzes the question of underutilization of
women and minorities in various ranks and jobs, describes special
problems in filling positions in various ranks, analyzes
deficiencies in what the Fire Department has done in the person
- 18 -
nel area, defines problem areas, and proposes solutions. It
recommends programs in recruitment, upward mobility, career
development, and the women's program. Most of the AAP is not
controversial.
The provision of the AAP at issue here is its system of
certificates of applicants for hire, each consisting of 100
names. Each certificate must include a group of applicants, 6 o%
of whom are black, 2.4% of whom are Hispanic, 35.1% of whom are
white, 2.6% of whom belong to other groups. 93% of the persons
certified on each certificate are to be male and 7% are to be
f e m a l e . S e l e c t i o n s are to be made in a manner which ensures
that each entering academy class be 60% black and 5% female.37
Each group is rank-ordered by a combination of test score and
veterans' preference points.38 The AAP expires in October 1986
by its own terms. App. 56.
The bulk of the AAP was developed, at least in part, to
satisfy the requirements of local legislation requiring
D.C. government agencies to analyze their own employment patterns
and develop AAP's. This appears from the face of the AAP itself,
and was also stated in Stipulation 1f 53, D.App. 21, which reads
in its entirety: "The AAP was intended to achieve compliance with
D. C. Law § 1-63." This does not mean that every provision of
the plan is based upon this legislation. Indeed, Stipulation 11
36 Stipulation 1f 32, D.App. 15.
37 Stipulation 1f 34, D.App. 17.
38 Stipulation 1f 31, D.App. 15.
- 19 -
54 states:29
54. The reasons for the AAP's adoption of the
short-term goals for Sergeants, Lieutenants and
Captains are stated in the AAP.
Local 36 argues that the hiring-certificate provisions
of the AAP were not designed to provide a remedy for past
discrimination. "The AAP at issue here has no such purpose."
Local 36 brief at 3-4. Instead, urges Local 36, the hiring-
certificate provisions were "adopted to comply with D.C. Law 1-
63". Id. This representation is unfounded. Local 36, and all
other parties below, expressly stipulated to the contrary:39 40
30. The AAP requires the use of multiple
certificates to select firefighters and is
designed solely to eliminate the racial and sexual
disparity which would exist if the examination
results were used in rank order.
(Emphasis supplied). Local 36 has not urged that its assent to
this stipulation was procured by fraud or duress, and has not
presented any other reason why it should be relieved of its
stipulation. The district court adopted this stipulation, as it
was entitled to do:
Because rank order use results in this
adverse racial impact, the AAP mandates a proce
dure for proportional appointment to the Depart
ment of test passers based on race. These
procedures are designed solely to eliminate the
racial, sexual, and ethnic disparity which would
exist if the candidates were selected in rank
order of examination results.
App. 45. Amici respectfully submit that the stipulation and its
39 D.App. 22.
40 D. App. 15.
- 20 -
adoption by the Court conclude the point.
There is no evidence of record to indicate what the
District of Columbia intends to do, with respect to Fire Depart
ment hiring, after October 1986.
SUMMARY OF ARCHMDNT
The hiring provisions of the Fire Department’s Affirma
tive Action Plan are limited in purpose and effect to the partial
neutralization of the racially discriminatory consequences of the
1984 test's passing rate and rank-ordered use of scores.
This purpose and effect are both constitutional and
lawful. They are expressly authorized by the Department of
Justice's own regulations, regulations which the Department has
chosen not to discuss either in the court below or in this
Court. Indeed, the Department of Justice has successfully
argued, in innumerable cases across the country, for the judicial
imposition of remedies which are indistinguishable from those
voluntarily adopted by the D.C. Fire Department in the case at
ba r.
The arguments of the Justice Department and its amicus,
that affirmative action is unlawful and/or unconstitutional,
result from a strained and implausible reading of caselaw and
legislative history. Every court of appeals in the country to
which such arguments have been put has rejected them.
While both the Justice Department and its amicus assert
factual propositions which cannot be supported in the record and
which contradict the necessary meaning and implications of their
- 21 -
own stipulations, neither has shown any reason to be relieved of
their stipulations, and neither has shown that the district
court's findings from an undisputed record were clearly er
roneous .
Put simply, the government of the United States has in
this lawsuit ignored the actual stipulated discrimination visited
upon black applicants for the D.C. Fire Department under the 1980
and 1984 tests, and has instead chosen to sue the D.C. Fire
Department for the temerity of following the Justice Department's
own regulations. Its challenge to the hiring provisions of the
AAP was properly denied below, and the grant of summary judgment
against the United States on the hiring issues should be affirmed
by this Court.
ARGUMENT
THE LIMITED PURPOSE AND EFFECT OF THE FIRE DEPARTMENT'S
HIRING AFFIRMATIVE ACTION PLAN---THE PARTIAL NEUTRALIZATION
OF THE RACIALLY DISCRIMINATORY CONSEQUENCES OF THE RANK-
ORDERED HIRING PROCEDURES-- ARE LAWFUL AND CONSTITUTIONAL
A. An Affirmative Action Plan Designed To Ensure
That Illegal Discrimination Does Not Occur Is an
AppxQPriate_and Wei 1-Accepted Use of AffirmativeAction
1• The Limited Purpose and Effect of the Fire
Department's Hiring Affirmative Action Plan
The "procedures [of the hiring affirmative action plan]
are designed solely to eliminate the racial, sexual, and ethnic
disparity which would exist if the candidates were selected in
rank order of examination results." (Emphasis supplied).
Opinion, App. 45. The Court's finding was based upon a Stipula-
22 -
tion agreed to by all parties. Supra at 20.41 Moreover,
the plan before the Court is limited in duration: "The Fire
Department's plan will end on October 1, 1986 .... " Op. at
App. 56.
Current hiring is done pursuant to the 1984 hiring
test. The parties stipulated and the Court found that the 1984
hiring test disproportionately excludes black applicants. Supra
at 12. The Court emphasized the "apparent" discriminatory effect
Local 36 disregards its Stipulation and the Court's
express finding regarding the purpose and extent of the affirma
tive action plan. Local 36 invents a plan which was not pre
sented by the District of Columbia, or reviewed by the lower
court, and which is not before this Court. See supra at 18-21.
Judge Kaufman has written eloquently of the importance of
giving binding effect to stipulations:
No amount of statistical legerdemain justifies
disregarding the binding stipulation that controls
this case, ... . The parties conceded those
facts, the Examiner acted upon those facts, and
the Commission based its decision on those facts.
There may have been strategic litigation trade
offs that led to the adoption of the stipulation;
but we shall never know. Nor can we guess what
posture this case would have assumed had there
been no stipulation, what constellation of facts
might have emerged, but for the stipulation, is
wholly a matter of surmise, in which we may not
permit ourselves to engage. Having agreed on a
set of facts, the parties, and this Court, must
be bound by them; we are not free to pick and choose at will.
Stanley Works v. Federal Trade C.omm'n- Cir. 1972). 469 F .2d 498, 506 (2nd
It is difficult to tell which is more surprising in the
case at bar: the fact that Local 36 has chosen to disregard the
parts of the Stipulation it now does not like, or the fact that
it has done so in the pursuit of hiring issues which it did not
consider to be worth even taking a position on when the case was
before the district court. See Local 36 brief at 3.
23
of the 1984 hiring test by illustrating the racial consequences
which would result if the test were used as a rank-ordering
device to select 400 applicants. Op. at App. 45. If the test
were used without any affirmative action modification and if 400
persons were hired, then 116 black applicants would be hired,
comprising only 29% of the persons hired. App. 45.42 Since
blacks comprised 64.6% of the test-takers in 1984, Op. at
App. 44, a test without a disproportionate racial effect would
instead yield 258 black hires out of 400 persons hired. The
racially discriminatory consequences of the test would thus
result in the denial of jobs to 142 black applicants if there
were no modifications to reduce the degree of adverse impact.
"Because rank order use results in this adverse racial impact,
the AAP mandates a procedure for proportional appointment to the
Department of test passers based on race, sex and national
origin." Op. at App. 45.
The 1984 hiring test, which would have a harsh discrim
inatory consequence if used as a rank-ordering device, "has not
been validated, and there is no evidence demonstrating that those
who score higher on the examination are more likely to perform
better on the job than those who score lower on the test."
Op. at App. 45; see also the discussion supra at 18-22. "If an
employment practice which operates to exclude Negroes cannot be
42 Approximately 5% of the applicants were Hispanic or
unidentified by race or ethnic origin. Id.
If 300 applicants were hired by rank order, then only
25% of those hires would have been black. Supra at 11.
- 24
shown to be related to job performance, the practice is prohi
bited." Griggs v. Duke Power Co.. 401 U.S. 424, 431 (1971).
Where an employment practice, such as the Fire Department's 1984
hiring test, has a statistically significant racial disparity,
the employer cannot continue to hire or promote employees using
that practice unless the employer can prove that the practice is
a valid predictor of actual job performance.
It is clear that if the Fire Department used the 1984
test as a rank-order selection procedure then the Fire Department
would have violated Title VII. The black applicants denied hire
by the use of the practice would have been "identified victims"
entitled to "make whole" relief including monetary awards and a
right to preferential hire with constructive seniority.
The hiring affirmative action plan has the purpose and
effect of preventing a violation of Title VII and the creation of
a class of victims. In effect, the blacks who benefit from the
affirmative action plan are the individuals who would otherwise
likely be the actual victims of illegal use of the 1984 test.
The modification in the order in which those who passed the
test are selected for employment does not discriminate against
better-qualified whites because the test is not related to job
performance.^ jn the absence of a valid test, the original 43 44
43 See e.g,, Segar v. Smith. 738 F.2d 1249, 1282-83
(D.C.Cir. 1984), cert, denied. 53 U.S.L.W. 3824 (1985).
44 Cf. United States v. City of Buffalo. 609 F.Supp. 1252,
1254 (W.D.N.Y., 1985), appeal pending:
Since the selection procedures used by the
25
rankings have no more significance than numbers drawn by lot, and
the affirmative action plan merely eliminates the racial bias
built into the lottery. Seg. Kirkland v. New York State Dept, of
Correctional Services. 628 F.2d 796, 798 (2d Cir. 1980), ce rt.
denied. 450 U.S. 980 (1981).45
2. The Use of Affirmative Action To Neutralize the
Di.scxlm,,in.a.tQry , Consequences ,o,f an. Inyalld_..sejec
tion.Procgdure,,, Hag Bepn A.EgiLQ.y..e.d. by t h e Cour t s
The District of Columbia Fire Department, as have other
employers, found itself in a difficult situation: the Department
has a public safety need to hire firefighters but it has a
selection procedure which has a racially discriminatory effect
and which could not be shown to be job related as required by
Title VII. Moreover, the Fire Department, as with most public
employers, has a long tradition of following rank-ordered
selection procedures and the expectations of its personnel may be
built around the continuance of this tradition, regardless of the
merits of rank-ordering the results of a particular selection
City have not yet been shown to be accurate
predictors of job performance, it is, at this
juncture, somewhat presumptuous to say that an
injustice is done every time a candidate is
selected out of rank order.
4 5 In Kirkland, the Second Circuit approved the addition of
250 points to the test score of each minority in order to remove
the racially adverse impact caused by the test. Non-minority
test-takers challenged the procedure as "tantamount to a quota."
The claim was rejected because "the differential was necessary to
prevent future discrimination___ since [without the 250-point
adjustment the test] would not serve as a race-neutral predictor
of on-the-job performance." 628 F.2d at 798. The court further
observed that " [t]his program does not bump white candidates but
rather re-ranks their [estimated] predicted performance...." Id.
- 26
dev ice.
The development and implementation of a new selection
procedure which will be job-related is frequently a difficult,
costly, and time-consuming task. NAACP v. Allen. 340
F.supp. 703, 706 (M.D.Ala. 1972), aff'd. 493 F.2d 614 (5th
Cir. 1974) (Judge Johnson ordered the Alabama State Highway
Patrol to hire according to a race-conscious plan rather than
order new testing procedures because, in part, "it would in all
likelihood take several years to implement the selection pro
cedure--- "); see, e.g. , United States v. New York. 21 FEP Cases
1286, 1345 (N.D.N.Y. 1979) (The development of a job related
selection procedure for state police officers "will be no easy
task.... It should also be noted that operating under a state
civil service merit system [creates] greater obstacles [to]
performing this task than [face] private sector employers").
It is particularly surprising that the Justice Depart
ment has criticized the D.C. Fire Department for the failure to
devise in the past few years a job related hiring examination
rather than relying upon a procedure for the neutralization of
racially discriminatory consequences. U.S. Brief at 37-40. The
Justice Department negotiated and approved a 1981 consent decree
using a form of affirmative action comparable to the one used by
the Fire Department; the consent decree covered the selection
procedures for entry-level jobs for 118 professional and admini
strative occupations in the Federal service. Luevano v.
Campbell, 93 F.R.D. 68 (D.D.C. 1981). The decree provided that
- 27
the entry-level test, the PACE, would be phased out over a period
of three years and that, during the period when the PACE was
phased out and, in most instances, for a period of five years
after the entry of the Decree, the Federal agencies would be
obligated to use "all practicable efforts" to eliminate any
adverse impact on blacks or Hispanics caused by the entry-level
selection procedures. 93 F.R.D. at 79-80.
As a practical matter, it was necessary to incorporate
this neutralization of discriminatory consequences plan rather
than relying upon the development of a valid selection procedure:
To develop alternative examining procedures for
these PACE occupations which would be consistent
with the professional and legal requirements
imposed upon all Federal hiring examinations would
require a substantial period of time. Each
replacement examination must undergo a careful
technical development process which will require
extensive professional staff, time and expense.
93 F.R.D. at 79. Similarly, the Justice Department has argued
successfully for the use of race-conscious plans to remove the
adverse impact of selection procedures used by local govern
ments. See, e. g. , United States v, City of Chicago. 663 F.2d
1354, 1361-62 (7th Cir. 1981) (en banc);4® United States
A C "[W]e conclude that the 25% [promotion quota] figure
proposed in the joint motion is fully warranted by present
conditions. The 25% figure will in time establish parity at a
level that corresponds closely to the rate of minority hiring
currently produced by nondiscriminatory selection procedures.
Whether fortuitously or otherwise, the 25% figure also corrects
for the disparate impact of the 1979 sergeant examination:
minority applicants for promotion, who constitute approximately
25% of the applicants taking the 1979 sergeant examination, are
assured of receiving 25% of the promotions under the modified decree."
- 28
v. Nassau County. C.A. Nos. 77-C-1881 and 77-C-1869 (W.D.N.Y. ,
March 1982).47
Since the Fire Department uses the selection procedure
on a rank-order basis, it is even more difficult, expensive, and
time consuming for the District to establish that the selection
procedure as used is job related and lawful:
[I]f a user decides to use a selection procedure
on a ranking basis, and that method of use has a
greater adverse impact than use on an appropriate
pass/fail basis..., the user should have suf
ficient evidence of validity and utility to
support the use on a ranking basis, see sections
38, 14B(5) and (6), and 14C(8) and (9).
Section 5G, Uniform Guidelines on Employee Selection Procedures,
28 CFR Section 50.14(5G).* 4® Courts have found the use of
47 paragraph 11 of the Consent Decree states:
... [X]n order to meet its needs for Police
Officers, Nassau County may make up to two hundred
(200) appointments from amongst those persons who
took the written examination (No. 66-681) adminis
tered by the County on October 17, 1977, it being
understood that any such interim appointments
shall be without adverse impact upon blacks,
Hispanics and female applicants ... .
An unsigned copy of the Consent Decree executed and filed in that
case has been lodged with the Clerk. The Justice Department
attorney in that case has assured the undersigned counsel that
the uinsigned copy is a true copy of the executed original,
except for the signatures.
4 8 The Guidelines were promulgated by the Equal Employment
Opportunity Commission, the Civil Service Commission (now the
Office of Personnel Management), the Department of Labor, and the
Department of Justice. The purpose of the Guidelines is to
"incorporate a single set of principles which are designed to
assist employers ... to comply with requirements of Federal law
prohibiting employment practices which discriminate on grounds of
race.... They are designed to provide a framework for determin
ing the proper use of tests and other selection procedures."
Section IB. The Guidelines are codified in the Department of
29
arbitrary cut-off scores and unjustified rank-ordering illegal
even where the courts otherwise found the selection procedures
valid and lawful. See, e .g., United States v. City of Chicago,
631 F .2d 469, 476 (7th Cir. 1980); Firefighters Institute for
Racial Equality v. City of St. Louis. 616 F .2d 350, 357-60 (8th
Cir. 1980), ce rt. denied. 452 U.S. 938 (1981); Ensley Branch,
NAACP v. Seibels, 616 F.2d 812, 822 (5th Cir.), ce rt. denied, 449
U.S. 1061 (1980).
After a selection device has been determined invalid it
is often necessary, as here, for the employer to continue to hire
or promote. See e .a.. Berkman v, City of New York, 536 F.Supp.
177, 216 (S.D.N.Y. 1982) ("[T]o freeze all appointments [to the
Fire Department] may present a hazardous situation to the
citizens of the community"), aff1d. 705 F.2d 584 (2d Cir. 1983).
A variety of techniques, identical to or similar to the one used
by the Fire Department, have been devised by employers or the
courts to deal with this problem.^ * 49
Justice regulations at 28 CFR Part 50.14. The Supreme Court
determined that the predecessors to the Uniform Guidelines, the
EEOC Guidelines, were "entitled to great deference." Albemarl e
Paper Company v. Moody, 422 U.S. 405, 431 (1975); see, Reynolds
v. Sheet Metal Workers Local 102. 498 F.Supp. 952, 966
(D.D.C. 1980), aff'd, 702 F.2d 221 (D.C. Cir. 1981).
A copy of the relevant provisions of the Uniform Guide
lines is set forth at pp. la-9a below.
49 White applicants who score well on the invalid test, for
obvious reasons, may prefer a remedy which permits continued use
of these results even in a modified form. See e . cr. , Vulcan
Society of Westchester County, Inc, v. Fire Dept, of the City of
White Plains. 505 F.Supp. 955, 967 (S.D.N.Y. 1981). Under a
settlement, the City was permitted to use an invalidated written
test which had a racially discriminatory effect "only because the
30
Courts or employers have added points to the scores of
blacks in order to remove adverse impact, see e .a . . Ki rkland
V-«-.New York State Dept, of Correctional Services. 628 F.2d at
798; Bushey v. n .Y. State Civil Service Comm'n. 733 F.2d 220,
223, 227-29 (2d Cir. 1984), cert, denied. 53 U.S.L.W. 3477
(1985). In other instances the use of the selection procedure
has been modified in order to remove the rank-order process.
See, e.a., Kirkland v. N.Y. State Deot. of Correctional Services.
711 F.2d 1117, 1133-34 (2d Cir. 1983) (use of "zones" of scores
rather than rank-ordering); Vulcan Society of Westchester Countv.
Inc, v. Fire Dept, of City of White Plains. 505 F.Supp. at 959,
964 (settlement altered the use of a rank-order exam and made it
a general qualifying exam). Some courts or employers have used a
random selection method or indicated the propriety of selecting
in a random manner applicants who possessed basic qualifications.
e .u.> Association Against Discrimination v. City of Bridae-
P^rt, 594 F.2d 306, 313 n.19 (2d Cir. 1979) (adverse impact
"could be eliminated by random selection of appointees from the
group of passing candidates, rather than use of rankings"); Sims
v. Local 65. Sheet Metal Workers. 353 F.Supp. 22, 29 (N.D. Ohio
1972) (apprentices "shall be indentured from the eligible pool by
lottery"), aff'd in pertinent part. 489 F.2d 1023 (6th Cir.
City has undertaken to undo any resulting discriminatory impact
by hiring a sufficient ratio of minority applicants to achieve
the hiring goals." The intervenors, predominantly white fire
fighters unions, objected to the remedy which they regarded as "a
ratio or quota" but thought that that remedy was "preferable to
what they perceive as the dilution of hiring and promotion standa rds."
- 31
1973) .
The majority of courts and employers used the method
adopted by the Fire Department: a goal for the selection of
minorities was established which, if met, would eliminate the
adverse racial impact of the selection practice and prevent a
violation of Title VII. Of course, in effect, these methods are
all closely related as the Second Circuit has indicated:
Since interim hiring provisions, where needed to
satisfy immediate personnel requirements, are to
be used prior to the development and approval of a
valid selection procedure, such provisions cannot
meet Title VII standards by demonstrated job
relatedness. Therefore, one appropriate way to
assure Title VII compliance on an interim basis is
to avoid a disparate racial impact. This means
selecting from among adequately qualified either
on a random basis or according to some appro
priately noncompensatory ratio normally reflecting
the minority ratio of the applicant pool or the
relevant work force.
(Citations omitted), Guardians Ass'n of New York City v. Civil
Service Commission. 630 F.2d 79, 108-09 (2d Cir. 1980), aff1d on
Other grounds. 463 U.S. 582 (1983).
In general, courts and employers, like the Fire
Department, have preferred to use a specific ratio rather than
resort to a lottery. It is likely that others have preferred the
direct approach of establishing a ratio for reasons similar to
those described by the lower court: it provides an incentive and
reward to perform well on the test, provokes less opposition from
governmental bodies supervising selection for civil service
systems, "and presents a more feasible solution to the problem."
Op. at App. 58.
- 32
Accordingly, the courts have regularly approved the use
of ratios which remove adverse impact and preclude the operation
of a discriminatory practice until the implementation of a lawful
selection procedure. Se£, e. q. . Berkman v. City of._Ne.w__Yor.k, 705
F. 2d 584, 595-98 (2d Cir. 1983), affirming 536 F.Supp. 177, 216-
18 (E.D.N.Y. 1982); United States v. City of Chicago, 663 F.2d at
1361-62; Firefighters Institute v. City of St. Louis, 588 F.2d
235, 242 (8th Cir. 1978), cert, denied. 443 U.S. 904 (1979) ("We,
therefore, direct the District Court, on remand, to enter
an injunctive decree which requires that assignments to acting
fire captain positions reflect a fifty percent black ratio as far
as is practicable, pending the development of a valid examina
tion"); Commonwealth of Pennsylvania v. Rizzo. 13 FEP Cases 1475,
1481 (E.D.Pa. 1975); Oburn v. Shaop. 393 F.Supp. 561, 574-75
(E.D.Pa. 1975), aff1d. 521 F.2d 142 (3d Cir. 1975); Enslev
Branch. NAACP v. Seibels. 14 FEP Cases 670, 686-87
(N.D.Ala. 1977), aff1d. 616 F.2d 812 (5th Cir.), cert, deni ed.
449 U.S. 1061 (1980); see also. Local 53, Asbestos Workers
v. Vogler, 407 F.2d 1047, 1055 (5th Cir. 1969).
This particular use of affirmative action has occa
sioned little dispute because this use is merely a device to end
the discriminatory impact of an otherwise unlawful test, and
without the use of this form of affirmative action there could
often be no hiring for a considerable period of time. See
Op. at App. 64. This form of affirmative action implemented by
the Fire Department "only prevents additional discrimination,"
- 33
Oburn v. Shapp, 393 F.Supp. at 575, and "does not go beyond the
simple elimination of the disparate impact of the practice found
to be discriminatory and is properly regarded as compliance
relief," Be.rkman v, City of New York. 705 F.2d at 595.
Since the selection procedure is not job related, no
one can "seriously contend that [the affirmative action plan]
gives preference to some applicants over better qualified
applicants," Oburn v. shapp. 393 F.Supp. at 575; see also
Kirkland y. New York State Dept, of Correctional Services. 628
F.2d at 798. Moreover, "[n]o person has a vested interest in any
specific position on an eligibility list based upon a
discriminatory promotion examination; if a person appears in a
certain position on an eligibility list prepared in violation of
the law, his right to remain in that certain rank must give way
to the lawful requirement to avoid discriminatory promotions."
Commonwealth of Pennsylvania v. Rizzo. 13 FEP Cases at 1481.
Furthermore, "white applicants have little expectation of being
hired merely because they passed the entry level test." Op. at
App. 64.
3. The Use of Affirmative Action to Neutralize
the Discriminatory Consequences of an Invalid
Selection Procedure is Authorized by the EEOC's
Affirmative Action Guidelines
The hiring affirmative action plan is consistent with
administrative agency guidelines. In 1979 the EEOC issued
Guidelines setting forth the standards for appropriate affirma
- 34 -
The EEOC enacted these Guide-tive action, 29 CFR Part 1608.50
lines to define lawful affirmative action because "[m]any
decisions taken pursuant to affirmative action plans or programs
have been race, sex, or national origin conscious in order to
achieve the Congressional purpose of providing equal employment
opportunity" and "[a]ny uncertainty as to the meaning and
application of Title VII [with respect to affirmative action]
threatens the accomplishment of the clear congressional intent to
encourage voluntary affirmative action," 29 C.F.R. § 1608.1(a).
The EEOC determined that "reasonable [affirmative] action may
include goals and timetables or other appropriate employment
tools which recognize the race, sex, or national origin of
applicants or employees." 29 C.F.R. § 1608.4(c). The EEOC
stressed that "voluntary affirmative action cannot be measured by
Pursuant to Executive Order 12067 (June 30, 1978), which
was issued to implement Reorganization Plan Number 1 of 1978, 43
Fed.Reg. 19807, the EEOC was designated as the lead federal
agency for the formulation of employment policy. In particular,
the Executive Order provides as follows:
The Equal Employment Opportunity Commission shall
provide leadership and coordination to the efforts
of Federal departments and agencies to enforce all
Federal statutes, Executive orders, regulations,
and policies which require equal employment
opportunity....
The EEOC is charged with "develop[ing] uniform standards,
guidelines, and policies defining the nature of employment
discrimination" and all Federal departments are directed to
"cooperate with and assist the Equal Employment Opportunity
Commission in the performance of its functions under this orde r...." £d.
The text of the Affirmative Action Guidelines is set out below at 10a-16a.
35
the standard of whether it would have been required had there
been litigation, for this standard would undermine the legisla
tive purpose of first encouraging voluntary action without
litigation." 29 C.F.R. § 1608.1(c).
In particular, the Guidelines direct employers to
engage in a "self analysis" in order to determine inte.r alia>
whether there is a "reasonable basis" for concluding that its
employment practices "[hjave or tend to have an adverse effect on
employment opportunities of ... groups whose employment ... op
portunities have been artificially limited...." 29 C.F.R.
§ 1608.4(b). If there is a "reasonable basis" for so concluding,
as there is with respect to the use of the hiring procedure for
the Fire Department, the employer may take reasonable action
"including] goals and timetables.... [and] the adoption of
practices which will eliminate the actual or potential adverse
impact...." 29 C.F.R. § 1608.4(c).
The EEOC Affirmative Action Guidelines sanction the
Fire Department's affirmative action plan. Furthermore, the
Equal Employment Opportunity Coordinating Council,5-1- issued a * 42
C 1 The Equal Employment Opportunity Coordinating Council was
created by P.L. No. 92-261, effective March 24, 1972, which
amended Title VII. As amended, Section 715 of Title VII,
42 U.S.C. § 2000e-14, provided that the Council would have the
responsibility to coordinate the Federal Government's enforcement
of the fair employment laws. The Council was composed of the
Secretary of Labor, the Chairman of the Equal Employment Oppor
tunity Commission, the Attorney General, the Chairman of the
United States Civil Service Commission, and the Chairman of the
United States Civil Rights Commission or their respective
delegates. The Council was abolished, effective July 1, 1978,
pursuant to Reorganization Plan No. 1 of 1978, Sec. 6 , 43
Fed.Reg. 19807, 92 Stat. 3781; Executive Order 12067, June 30,
36
"Policy Statement on Affirmative Action Programs for State and
Local Government Agencies," 41 Fed.Reg. 38,814 (Sept. 13, 1976).
This Statement issued by the Justice Department and the other
federal government agencies responsible for the enforcement of
the fair employment laws approves the type of affirmative action
plan developed for the District of Columbia's Fire Department.
This Policy Statement was adopted and reissued by the govern
mental agencies, including the Justice Department, which signed
the Uniform Guidelines on Employee Selection Procedures. See
28 CFR § 50.14(17), set forth at 7a-9a below.
The Policy Statement expressly approves " [t]he estab
lishment of a long-term goal, and short-range, interim goals and
timetables...." and for "[rjevamping selection instruments or
procedures which have not yet been validated in order to reduce
or eliminate exclusionary effects on particular groups in
particular job classifications...." § 50.14(17(3) (a)) , -(d). It
is an ironic and an inappropriate, if not illegal, form of
federal bureaucratic mismanagement for the Department of Justice
to maintain that a local government violates the Constitution and
federal law when it follows Guidelines and a Policy Statement
signed by the Justice Department and other federal agencies.
4. The Use of Affirmative Action to Neutralize
the Discriminatory Consequences of an
Invalid Selection Procedure is Authorized
by the Justice Department's Own Regulations
Section 6A of the Uniform Guidelines, codified in the
1978, 43 Fed.Reg. 28967.
37
Justice Department's regulations at 28 C.F.R. § 50.14(6A), states
in its entirety:
Sec. 6 . Use of selection procedures which
have not been validated.---A. Use of alternate
selection procedures to eliminate adverse impact.
A user may choose to utilize alternative selection
procedures in order to eliminate adverse impact or
as part of an affirmative action program. See
section 13 below. Such alternative procedures
should eliminate the adverse impact in the total
selection process, should be lawful and should be
as job related as possible.
The Justice Department joined with the Equal Employment
Opportunity Commission, the Office of Personnel Management, the
Department of Labor, and the Department of the Treasury, in the
March 2, 1979 joint Adoption of Questions and Answers to Clarify
and Provide a Common Interpretation of the Uniform Guidelines on
Employee Selection Procedures, 43 Fed.Reg. 11996.52 The Ques
tions and Answers make clear that the Fire Department's plan is
expressly authorized, and that the Attorney General has, in
essence, sued the Fire Department for having the temerity to rely
on the Justice Department's own regulations.
Question and Answer 30, 43 Fed. Reg. 12001, for
example, state in pertinent part:
30. Q. When may a user be race, sex or ethnic
conscious?
A. ... A user may justifiably be race, sex
or ethnic conscious in circumstances
where it has reason to believe that
qualified persons of specified race, sex
of ethnicity have been or may be subject
to the exclusionary effects of its
52 The text of the pertinent Questions and Answers is set
forth below at 17a-20a.
- 38
selection procedures ... in its work
force or particular jobs therein. In
establishing long and short range goals, the employer may use the race, sex or
ethnic classification as the basis for
such goals. ...
* * *
Even apart from affirmative action
programs a user may be race, sex or
ethnic-conscious in taking appropriate
and lawful measures to eliminate adverse
impact from selection procedures
(Section 6A).
Question and Answer 31, Id.. state in pertinent part:
31. Q. Section 6A authorizes the use of
alternative selection procedures to
eliminate adverse impact, but does not
appear to address the issue of validi
ty. Thus, the use of alternative
selection procedures without adverse
impact seems to be presented as an
option in lieu of validation. Is that
its intent?
A. Yes. ... If a selection procedure has an
adverse impact, therefore, Federal equal
employment opportunity law authorizes
the user to choose lawful alternative
procedures which eliminate the adverse
impact rather than demonstrating the
validity of the original selection
procedures.
* * *
... Federal equal employment oppor
tunity law does not require validity
studies to be conducted unless there is
adverse impact. See Section 2C.
Question and Answer 72, 43 Fed.Reg. 12006, state in pertinent
pa rt:
Q. What options does a user have if a
criterion-related study is appropriate
but is not feasible because there are
not enough persons in the job?
- 39
A. There are a number of options the user
should consider, depending upon the
particular facts and circumstances, such
as:
1. Change the procedure so as
to eliminate adverse impact (see
Section 6A);
* * *
All public and private employers and employment agencies are
entitled to rely on the regulatory guidance provided by the
Justice Department and other Federal agencies with competence in
this field, and this guidance specifically includes the type of
action taken here by the D.C. Fire Department to neutralize part
of the adverse impact of its 1984 hiring test.
It would seem to follow that the Justice Department is
bound by its own regulations, and that it cannot be heard before
this Court to complain that the Fire Department followed the
Justice Department's own regulations.
B- The Sweeping Assertions of the Justice Department
and Local 36 that Affirmative Action Is Illegal
and Unconstitutional Are Without Merit
The Justice Department makes its by now well-known and
frequently rejected position, see infra at 44-45, that the
Constitution and Title VII "allow[ ] the use of racial pref
erences only to compensate actual victims of illegal discrim
ination." (Footnote omitted), Brief at 14, see Brief at 28-29,
40 (Title VII). Local 36 goes almost as far as the Justice
- 40 -
Department.53 The per se attack by the Department of Justice on
the affirmative action plan must be rejected.
Every federal Court of Appeals in this nation has
approved remedial use of goals and timetables
without requiring that each and every potentially
eligible person be shown to have been a victim of
discrimination. Nor can the imposition of quotas
to remedy proven discrimination be said to violate
the Constitution's guarantees of equal protec
tion. whatever the current status of affirmative
action absent a finding of discrimination, the
Supreme Court has made clear that such relief is
not unconstitutional when used to remedy proven
discrimination.
(Footnotes omitted), Seaar v. Smith. 738 F.2d at 1293-94; see
also, Williams v. City of New Orleans. 729 F.2d 1554, 1557 (5th
Cir. 1984) (en banc) ("We cannot accept [the Justice Depart
ment's] per se rule.... 1[A]t this point in the history of the
fight against discrimination, it cannot be seriously argued that
there is any insurmountable barrier to the use of goals or quotas
to eradicate the effects of past discrimination'").
The Supreme Court long ago rejected the notion that
courts, legislators, and administrators must turn a "color blind"
53 In its bald factual assertions Local 36 goes further than
the Justice Department. Local 36 repeatedly asserts that there
hasbeen "no discrimination in hiring in [the Fire Department]
during the 22-year period for which the record contains data."
See Brief at 4. The lower court ruled that "[n]one of the
parties herein dispute that for many years the District of
Columbia Fire Department discriminated against blacks" and that
"[t]he current statistics demonstrate that there still exist some
vestiges of the aforementioned past discrimination." Op. at
App. 40-41. Both the Hearing Examiner, D.App. 46-47, and the
District's affirmative action plan, D.App. 93, set forth a
reasonable basis for concluding that the hiring procedures used
by the Fire Department in the 1970's were discriminatory. The
use of the 1980 hiring test was unlawful. Supra at 3-18. We do
not detail the errors of Local 36 further because the affirmative
action plan at issue is a compliance rather than a remedial plan.
41
eye to devising remedies for racial discrimination or for
ensuring the cessation of discrimination. In 1969 North Carolina
passed a statute which, in effect, codified the Justice Depart
ment's current position. The law forbade race-conscious deci
sions in the assignment of children to schools. The Supreme
Court unanimously struck down this color-blind statute.
The legislation before us flatly forbids assign
ment of any student on account of race or for the
purpose of creating a racial balance or ratio in
the schools. The prohibition is absolute, and it
would inescapably operate to obstruct the remedies
granted by the District Court in the Swann case.
But more important the statute exploits an
apparently neutral form to control school assign
ment plans by directing that they be 'color
blind'; that requirement, against the background
of segregation, would render illusory the promise
of Brown v. Board of Education, 347 U.S. 483
(1954).
Just as the race of students must be considered in
determining whether a constitutional violation has
occurred, so also must race be considered in
formulating a remedy.
North Carolina Bd. of Education v, Swann. 402 U.S. 43, 45-46
(1971). See also. Swann v. Charlotte-Mecklenbura Bd. of Educa
tion, 402 U.S. 1, 18-21 (1971); McDaniel v. Barresi . 402 U.S. 39,
41 (1971); United Jewish Organizations of Wi11iamsburah v. Carey.
430 U.S. 144, 159-62 (1977); Fullilove v. Klutznick. 448 U.S.
448, 482 (1980). in Regents of the University of California
v. Bakke, 438 U.S. 265 (1978), four Justices5 ̂expressly deter
mined that "[t]he Court has declined to adopt a 'colorblind'
Brennan, White, Marshall, and Blackmun, JJ. These
Justices joined with Justice Powell in upholding the right of the
University to consider race as a factor in determining admissions
to the medical school.
- 42
interpretation [to Title VII]." Id^ at 353. Furthermore, the
Justices determined that "[executive, judicial, and congres
sional action subsequent to the passage of Title VII conclusively
established that the Title did not bar the remedial use of
race." (Emphasis added), Id. at 353 n.28. Specifically, the
Justices determined that "a number of Courts of Appeals approved
race-conscious action to remedy the effects of employment
discrimination," that the Attorney General and the executive
interpreted Executive Order 11246 to require "federal contractors
to take affirmative action to remedy the disproportionately low
employment of racial minorities in the construction industry,"
and that "Congress, in enacting the 1972 amendments to Title VII,
explicitly considered and rejected proposals to alter Executive
Order No. 11246 and the prevailing judicial interpretations of
Title VII as permitting, and in some circumstances requiring,
race-conscious action." Id.; see also. 438 U.S. at 340 n.17.
In announcing the Judgment of the Court, Justice Powell
cited with approval decisions of appellate courts upholding race
conscious numerical relief under Title VII and the Executive
Order, and concluded that "[s]uch preferences ... have been
upheld where a legislative or administrative body charged with
the responsibility made determinations of past discrimination by
the industries effected, and fashioned remedies deemed ap
propriate to rectify the discrimination." Id. at 301.
Despite 15 years of appellate court and Supreme Court
jurisprudence to the contrary, the Justice Department and amicus
43
curiae Local 36 still maintain that race conscious action may
only be taken to provide a remedy for identifiable actual
victims. See, Justice Department Brief at 14; Local 36 Brief at
26. There was no showing that the University of California
Medical School at Davis discriminated, and since the school was
established in 1968 the general prior history of discrimination
by medical schools was largely inapplicable; nor, in permitting
the school to consider race in the selection of medical students,
did the Supreme Court require that the admissions office attempt
to identify the "actual victims" of discrimination. Bakke.
supra. In any event, even if the rule was to the contrary and
remedial affirmative action plans could only be directed toward
actual identified victims, the rule would still not preclude an
affirmative action plan, such as the one before this Court, which
ensures compliance with the fair employment laws and prevents the
creation of a new class of identifiable victims, see section A.
The Justice Department argues that the decision in
Firefighters Local Union No. 1784 v. Stotts. 104 S.Ct. 2576
(1984), Justice Department Brief at 40-49, see. Local 36 Brief at
26, requires a rejection of the affirmative action plan. Every
appellate court which has considered these or similar Stotts
arguments has rejected the arguments. Devereaux v. Geary, 765
F.2d 268 (1st Cir. 1985); EEOC v. Local 638. Sheet Metal Workers.
753 F.2d 1172 (2d Cir. 1985), ce rt. granted. Mo. 84-1656, 54
U.S.L.W. 3223 (Oct. 7, 1985); Commonwealth of Pennsylvania
v_i. Local 542, Operating Engineers, ____F.2d____ , 38 FEP Cases 673
44
(3rd Cir., 1985); Kromnick v. School District of Philadelphia,
739 F.2d 894 (3d Cir. 1984), cert. denied, 53 U.S.L.W. 7483
(1985); Wygant v. Jackson Bd. of Education. 746 F.2d 1152 (6th
Cir. 1984), ce rt. granted. Mo. 84-1340, 53 U.S.L.W. 3739 (April
15, 1985); Vanguards v. City of Cleveland. 753 F.2d 479 (6th
Cir. 1985), ce rt. granted. Mo. 84-1999, 54 U.S.L.W. 3223 (Oct. 7,
1985); Van Aken v. Young. 750 F.2d 43 (6th Cir. 1984); Britton
y. South Bend Community School Corporation. Slip Opinion, No. 84-
2841 (7th Cir. Oct. 21, 1985); Grann v. City of Madison, 738 F.2d
786 (7th Cir. 1984); Diaz v. American Telephone & Telegraph. 752
F.2d 1356 (9th Cir. 1985); Paradise v, Prescott. 767 F.2d 1514
(11th Cir., 1985); Turner v. Orr. 759 F.2d 817 (11th Cir. 1985).
The lower court rejected the arguments of the Justice
Department, Op. at App. 59-70; seven federal appellate courts
have expressly rejected the Department's arguments based upon
Stotts; and this Court and every other appellate court, see
Segar. supra, have rejected the general approach to affirmative
action advocated by the Justice Department. We do not reiterate
in detail the grounds for rejecting the Justice Department's or
Local 36's arguments regarding Stotts. Taken together, the
appellate courts' opinions are comprehensive.
However, we emphasize that it is unlikely that Justice
White---who wrote in 1977 in Bakke that it was "conclusively
established that Title VII did not ban the remedial use of race"
and that Congress in 1972 rejected attempts to amend Title VII to
bar "race-conscious" relief---intended the Stotts opinion to mean
45 -
directly to the contrary of his Bakke opinion without even
mentioning Bakke. "Had the Court meant to rewrite Title VII law
to mean that all affirmative action programs are improper absent
a finding of actual past discrimination, it would have said
so...." Devereaux v. Gearv. 596 F.Supp. 1481, 1486 (D.Mass.
1984), aff1 d. 765 F.2d 268 (1st Cir. 1985). In order to accept
the Department's interpretation of Stotts, it is necessary to
accept several highly questionable assumptions: (1) that the
United States Supreme Court would decide an important and
controversial issue without making it explicit that it is doing
so; (2) that the Court would overrule an immense body of accepted
decisional law, again without making its ruling explicit; and
(3) that the Court would reach such a sweeping decision without
discussing the numerous competing public policies implicated in
this issue and discussed in the Court's leading decisions on this
issue. It defies logic and common sense to suggest that that is
what the Court did; it has never done so before in any other case
of which we are aware. In the absence of a definitive opinion
from the Supreme Court, this Court should decline the invitation
to rewrite the last 15 years of jurisprudence in civil rights
and constitutional litigation.
The lower court applied the guidelines established by
this Court for the imposition of affirmative action. See Op. at
App. 57. The lower court made pertinent findings of fact, such
as, there is an "absence of any clear options" to the affirmative
action plan, "[t]he hiring part of this plan ... is sufficiently
- 46
narrowly tailored," "the white applicants have little expectation
of being hired merely because they passed the entry level test,"
"[t]he AAP does not 'unnecessarily trammel' their interests," the
plan is of limited duration (the plan approved in Webe r was
"considerably longer"), and "the hiring portions of this tempo
rary plan are narrowly tailored to remedy a discriminatory
test." Op. at App. 55-58, 64. Recent supreme court decisions
make clear that the courts of appeals have only limited authority
to overturn such trial court findings of fact. Anderson v. City
of Bessemer, 53 U.S.L.W. 4314 (1985); Pullman-Standard Co. v.
Swint, 456 U.S. 273 (1982). There is no factual, legal or
constitutional basis for reversing the district court.
47 -
CONCLUSION
Thus, the amici respectfully request the Court to
reject the invitation of the Justice Department to make radical
departures from well-established civil rights and constitutional
precedent and to affirm the decision of the lower court.
Respectfully submitted,
WILLIAM L. ROBINSON
RICHARD T. SEYMOUR
Lawyers' Committee for Civil Rights
Under Law
1400 'Eye' St., N.W., Suite 400
Washington, D.C. 20005
(202) 371-1212
RODERICK V.O. BOGGS
Washington Lawyers' Committee for
Civil Rights Under Law
1400 'Eye' St., N.W., Suite 450
Washington, D.C. 20005
(202) 682-5900
JULIUS LeVONNE CHAMBERS
NAACP Legal Defense and Educational
Fund, Inc.
99 Hudson St., 16th Floor
New York, New York 10013
(212) 219-1900
BARRY L. GOLDSTEIN
NAACP Legal Defense and Educational
Fund, Inc.
806 Fifteenth Street, N.W.
Suite 940
Washington, D.C. 20005
(202) 638-3278
ttorneys for Amici Curiae
Dated: November 20, 1985
- 48 -
R E G U L A T I O N S
§50.13
§ 50.14 Guidelines on employee selection
procedures.
The guidelines set forth below are
intended as a statement of policy of
the Department of Justice and will be
applied by the Department in exercis
ing its responsibilities under Federal
law relating to equal employment op
portunity.
Uniform Guidelines on Employee
S election Procedures (1978)
N ote: These guidelines are issued jointly
by four agencies. Separate official adoptions
follow the guidelines in this Part IV as fol
lows: Civil Service Commission, Department
of Justice, Equal Employment Opportunity
Commission, Department of Labor.
For official citation see section 18 of these
guidelines.
Table of C ontents
GENERAL PRINCIPLES
1. Statement of Purpose
A. Need for Uniformity-Issuing Aê rv-,
B. Purpose of Guidelines nc1'*
C. Relation to Prior Guidelines
2. Scope
A. Application of Guidelines
B. Employment Decisions
C. Selection Procedures
D. Limitations
E. Indian Preference Not Affected
3. Discrimination Defined: Relationship Be
tween Use of Selection Procedures and
Discrimination
A. Procedure Having Adverse Impact Con
stitutes Discrimination Unless Justi
fied
B. Consideration of Suitable Alternative
Selection Procedures
4. Information on Impact
A. Records Concerning Impact
B. Applicable Race, Sex and Ethnic
Groups For Record Keeping
C. Evaluation of Selection Rates. The
“Bottom Line”
D. Adverse Impact And The “Four-Fifths
Rule”
E. Consideration of User’s Equal Employ
ment Opportunity Posture
5. General Standards for Validity Studies
A. Acceptable types of Validity Studies
B. Criterion-Related, Content, and Con
struct Validity
C. Guidelines Are Consistent with Profes
sional Standards
D. Need For Documentation of Validity
E. Accuracy and Standardization
F. Caution Against Selection on Basis of
Knowledges, Skills or Abilities
Learned in Brief Orientation Period
G. Method of Use of Selection Procedures
H. Cutoff Scores
I. Use of Selection Procedures for Higher
Level Jobs
J. Interim Use of Selection Procedures
K. Review of Validity Studies for Cur
rency
6. Use of Selection Procedures Which Have
Not Been Validated
A. Use of Alternate Selection Procedures
to Eliminate Adverse Impact
B. Where Validity Studies Cannot or Need
Not Be Performed
(1) Where Informal or Unscored Proce
dures Are Used
(2) Where Formal And Scored Proce
dures Are Used
7. Use of Other Validity Studies
A. Validity Studies not Conducted by the
User
B. Use of Criterion-Related Validity Evi
dence from Other Sources
(1) Validity Evidence
(2) Job Similarity
28 CFR Ch. I (7-1-35
la
(3) Fairness Evidence
C. Validity Evidence from Multi-Unit
Study
D. Other Significant Variables
8. Cooperative Studies
A. Encouragement of Cooperative Studies
B. Standards for Use of Cooperative
Studies
9. No Assumption of Validity
A. Unacceptable Substitutes for Evidence
of Validity
B. Encouragement of Professional Super
vision
10. Employment Agencies and Employment
Services
A. Where Selection Procedures Are De
vised by Agency
B. Where Selection Procedures Are De
vised Elsewhere
11. Disparate Treatment
12. Retesting of Applicants
13. Affirmative Action
A. Affirmative Action Obligations
B. Encouragement of Voluntary Affirma
tive Action Programs
TECHNICAL STANDARDS
14. Technical Standards for Validity Studies
A. Validity Studies Should be Based on
Review of Information about the Job
B. Technical Standards for Criterion-Re
lated Validity Studies
(1) Technical Feasibility
(2) Analysis of the Job
(3) Criterion Measures
(4) Representativeness of the Sample
(5) Statistical Relationships
(6) Operational Use of Selection Proce
dures
(7) Over-Statement of Validity Findings
(8) Fairness
(a) Unfairness Defined
(b) Investigation of Fairness
(c) General Considerations in Fairness
Investigations
(d) When Unfairness Is Shown
(e) Technical Feasibility of Fairness
Studies
(f) Continued Use of Selection Proce
dures When Fairness Studies not Feasi
ble
C. Technical Standards for Content Valid
ity Studies
(1) Appropriateness of Content Validity
Studies
(2) Job Analysis for Content Validity
(3) Development of Selection Procedure
(4) Standards For Demonstrating Con
tent Validity
(5) Reliability
(6) Prior Training or Experience
(7) Training Success
(8) Operational Use
(9) Ranking Based on Content Validity
Studies
D. Technical Standards For Construct Va
lidity Studies
Department of Justice
(1) Appropriateness of Construct Validi
ty Studies
(2) Job Analysis For Construct Validity
Studies
(3) Relationship to the Job
(4) Use of Construct Validity Study
Without New Criterion-Related Evidence
(a) Standards for Use
(b) Determination of Common Work
Behaviors
DOCUMENTATION OF IMPACT AND VALIDITY
EVIDENCE
15. Documentation of Impact and Validity
Evidence
A. Required Information
(1) Simplified Recordkeeping for Users
With Less Than 100 Employees
(2) Information on Impact
(a) Collection of Information on
Impact
(b) When Adverse Impact Has Been
Eliminated in The Total Selection Proc
ess
(c) When Data Insufficient to Deter
mine Impact
(3) Documentation of Validity Evidence
(a) Type of Evidence
(b) Form of Report
(c) Completeness
B. Criterion-Related Validity Studies
(1) User(s), Location(s), and Date(s) of
Study
(2) Problem and Setting
(3) Job Analysis or Review of Job Infor
mation
(4) Job Titles and Codes
(5) Criterion Measures
(6) Sample Description
.(7) Description of Selection Procedure
(8) Techniques and Results
(9) Alternative Procedures Investigated
(10) Uses and Applications
(11) Source Data
(12) Contact Person
(13) Accuracy and Completeness
C. Content Validity Studies
(1) User(s), Location(s), and Date(s) of
Study
(2) Problem and Setting
(3) Job Analysis—Content of the Job
(4) Selection Procedure and its Content
(5) Relationship Between Selection Pro
cedure and the Job
(6) Alternative Procedures Investigated
(7) Uses and Applications
(8) Contact Person
(9) Accuracy and Completeness
D. Construct Validity Studies
(1) User(s). Location(s), and Date(s) of
Study
(2) Problem and Setting
(3) Construct Definition
(4) Job Analysis
(5) Job Titles and Codes
(6) Selection Procedure
§50.14
2a
28 CFR Ch. I (7-1-85 Edition)
(7) Relationship to Job Performance
(8) Alternative Procedures Investigated
(9) Uses and Applications
(10) Accuracy and Completeness
(11) Source Data
(12) Contact Person
E. Evidence of Validity from Other Stud-
ics
(1) Evidence from Criterion-Related Va
lidity Studies
(a) Job Information
(b) Relevance of Criteria
(c) Other Variables
(d) Use of the Selection Procedure
(e) Bibliography
(2) Evidence from Content Validity
Studies
(3) Evidence from Construct Validity
Studies
P. Evidence of Validity from Cooperative
Studies
G. Selection for Higher Level Jobs
H. Interim Use of Selection Procedures
DEFINITIONS
16. Definitions
APPENDIX
17. Policy Statement on Affirmative Action
(see Section 13B)
18. Citations
General Principles
Section 1. Statement of purpose—A. Need
for uniformity—Issuing agencies. The Fed
eral government’s need for a uniform set of
principles on the question of the use of tests
and other selection procedures has long
been recognized. The Equal Employment
Opportunity Commission, the Civil Service
Commission, the Department of Labor, and
the Department of Justice jointly have
adopted these uniform guidelines to meet
that need, and to apply the same principles
to the Federal Government as are applied to
other employers.
B. Purpose of guidelines. These guidelines
incorporate a single set of principles which
are designed to assist employers, labor orga
nizations, employment agencies, and licens
ing and certification boards to comply with
requirements of Federal law prohibiting em
ployment practices which discriminate on
grounds of race, color, religion, sex, and na
tional origin. They are designed to provide a
framework for determining the proper use
of tests and other selection procedures.
These guidelines do not require a user to
conduct validity studies of selection proce
dures where no adverse impact results. How
ever, all users are encouraged to use selec
tion procedures which are valid, especially
users operating under merit principles.
C. Relation to prior guidelines. These
guidelines are based upon and supersede
previously issued guidelines on employee se
§50.14
lection procedures. These guidelines have
been built upon court decisions, the previ
ously issued guidelines of the agencies, and
the practical experience of the agencies, as
well as the standards of the psychological
profession. These guidelines are intended to
be consistent with existing law.
Sec. 2. Scope—A. Application of guide
lines. These guidelines will be applied by
the Equal Employment Opportunity Com
mission in the enforcement of Title VII of
the Civil Rights Act of 1964, as amended by
the Equal Employment Opportunity Act of
1972 (hereinafter “Title VII”); by the De
partment of Labor, and the contract compli
ance agencies until the transfer of authority
contemplated by the President’s Reorgani
zation Plan No. 1 of 1978, in the administra
tion and enforcement of Executive Order
11246, as amended by Executive Order
11375 (hereinafter “Executive Order
11246”); by the Civil Service Commission
and other Federal agencies subject to sec
tion 717 of Title VII; by the Civil Service
Commission in exercising its responsibilities
toward State and local governments under
section 208(b)(1) of the Intergovernmental-
Personnel Act; by the Department of Jus
tice in exercising its responsibilities under
Federal law; by the Office of Revenue Shar
ing of the Department of the Treasury
under the State and Local Fiscal Assistance
Act of 1972, as amended; and by any other
Federal agency which adopts them.
B. Employment decisions. These guide
lines apply to tests and other selection pro
cedures which are used as a basis for any
employment decision. Employment deci
sions include but are not limited to hiring,
promotion, demotion, membership (for ex
ample, in a labor organization), referral, re
tention, and licensing and certification, to
the extent that licensing and certification
may be covered by Federal equal employ
ment opportunity law. Other selection deci
sions, such as selection for training or trans
fer, may also be considered employment de
cisions if they lead to any of the decisions
listed above.
C. Selection procedures. These guidelines
apply only to selection procedures which
are used as a basis for making employment
decisions. For example, the use of recruiting
procedures designed to attract members of a
particular race, sex, or ethnic group, which
were previously denied employment oppor
tunities or which are currently underuti
lized, may be necessary to bring an employ
er into compliance with Federal law, and is
frequently an essential element of any ef
fective affirmative action program; but re
cruitment practices are not considered by
these guidelines to be selectio'n procedures.
Similarly, these guidelines do not pertain to
the question of the lawfulness of a seniority
system within the meaning of section
3a
Department of Justice § 50.14
703(h), Executive Order 11246 or other pro
visions of Federal law or regulation, except
to the extent that such systems utilize selec
tion procedures to determine qualifications
or abilities to perform the job. Nothing in
these guidelines is intended or should be in
terpreted as discouraging the use of a selec
tion procedure for the purpose of determin
ing qualifications or for the purpose of se
lection on the basis of relative qualifica
tions, if the selection procedure had been
validated in accord with these guidelines for
each such purpose for which it is to be used.
D. Limitations. These guidelines apply
only to persons subject to Title VII, Execu
tive Order 11246, or other equal employ
ment opportunity requirements of Federal
law. These guidelines do not apply to re
sponsibilities under the Age Discrimination
in Employment Act of 1967, as amended,
not to discriminate on the basis of age, or
under sections 501, 503, and 504 of the Re
habilitation Act of 1973, not to discriminate
on the basis of handicap.
E. Indian preference not affected. These
guidelines do not restrict any obligation im
posed or right granted by Federal law to
users to extend a preference in employment
to Indians living on or near an Indian reser
vation in connection with employment op
portunities on or near an Indian reserva
tion.
Sec. 3. Discrimination defined: Relation
ship between use of selection procedures and
discrimination—A. Procedure having ad
verse impact constitutes discrimination
unless justified. The use of any selection
procedure which has an adverse impact on
the hiring, promotion, or other employment
or membership opportunities of members of
any race, sex, or ethnic group will be consid
ered to be discriminatory and inconsistent
with these guidelines, unless the procedure
has been validated in accordance with these
guidelines, or the provisions of section 6
below are satisfied.
B. Consideration of suitable alternative
selection procedures. Where two or more se
lection procedures are available which serve
the user’s legitimate interest in efficient
and trustworthy workmanship, and which
are substantially equally valid for a given
purpose, the user should use the procedure
which has been demonstrated to have the
lesser adverse impact. Accordingly, when
ever a validity study is called for by these
guidelines, the user should include, as a part
of the validity study, an investigation of
suitable alternative selection procedures
and suitable alternative methods of using
the selection procedure which have as little
adverse impact as possible, to determine the
appropriateness of using or validating them
in accord with these guidelines. If a user has
made a reasonable effort to become aware
of such alternative procedures and validity
has been demonstrated in accord with these
guidelines, the use of the test or other selec
tion procedure may continue until such
time as it should reasonably be reviewed for
currency. Whenever the user is shown an al
ternative selection procedure with evidence
of less adverse impact and substantial evi
dence of validity for the same job in similar
circumstances, the user should investigate it
to determine the appropriateness of using
or validating it in accord with these guide
lines. This subsection is not intended to pre
clude the combination of procedures into a
significantly more valid procedure, if the
use of such a combination has been shown
to be in compliance with the guidelines.
Sec. 4. Information on impact—A. Records
concerning im pact Each user should main
tain and have available for inspection rec
ords or other information which will dis
close the impact which its tests and other
selection procedures have upon employment
opportunities of persons by identifiable
race, sex, or ethnic group as set forth in
paragraph B below in order to determine
compliance with these guidelines. Where
there are large numbers of applicants and
procedures are administered frequently,
such information may be retained on a
sample basis, provided that the sample is
appropriate in terms of the applicant popu
lation and adequate in size.
B. Applicable race, sex, and ethnic groups
for recordkeeping. The records called for by
this section are to be maintained by sex, and
the following races and ethnic groups:
Blacks (Negroes), American Indians (includ
ing Alaskan Natives), Asians (including Pa
cific Islanders), Hispanic (including persons
of Mexican, Puerto Rican, Cuban, Central
or South American, or other Spanish origin
or culture regardless of race), whites (Cau
casians) other than Hispanic, and totals.
The race, sex, and ethnic classifications
called for by this section are consistent with
the Equal Employment Opportunity Stand
ard Form 100, Employer Information
Report EEO-1 series of reports. The user
should adopt safeguards to insure that the
records required by this paragraph are used
for appropriate purposes such as determin
ing adverse impact, or (where required) for
developing and monitoring affirmative
action programs, and that such records are
not used improperly. See sections 4E and
17(4), below.
C. Evaluation of selection rates. The
"bottom line. ” If the information called for
by sections 4A and B above shows that the
total selection process for a job has an ad
verse impact, the individual components of
the selection process should be evaluated
for adverse impact. If this information
shows that the total selection process does
not have an adverse impact, the Federal en
forcement agencies, in the exercise of their
administrative and prosecutorial discretion.
4a
28 CFR Ch. I (7-1-85 Edition)
in usual circumstances, will not expect a
user to evaluate the individual components
for adverse impact, or to validate such indi
vidual components, and will not take en
forcement action based upon adverse impact
of any component of that process, including
the separate parts of a multipart selection
procedure or any separate procedure that is
used as an alternative method of selection.
However, in the following circumstances the
Federal enforcement agencies will expect a
user to evaluate the individual components
for adverse impact and may, where appro
priate, take enforcement action with respect
to the individual components: (1) Where the
selection procedure is a significant factor in
the continuation of patterns of assignments
of incumbent employees caused by prior dis
criminatory employment practices, (2)
where the weight of court decisions or ad
ministrative interpretations hold that a spe
cific procedure (such as height or weight re
quirements or no-arrest records) is not job
related in the same or similar circum
stances. In unusual circumstances, other
than those listed in (1) and (2) above, the
Federal enforcement agencies may request a
user to evaluate the individual components
for adverse impact and may, where appro
priate, take enforcement action with respect
to the individual component.
D. Adverse impact and the "four-fifths
rule. ” A selection rate for any race, sex, or
ethnic group which is less than four-fifths
(Vs) (or eighty percent) of the rate for the
group with the highest rate will generally
be regarded by the Federal enforcement
agencies as evidence of adverse impact,
while a greater than four-fifths rate will
generally not be regarded by Federal en
forcement agencies as evidence of adverse
impact. Smaller differences in selection rate
may nevertheless constitute adverse impact,
where they are significant in both statistical
and practical terms or where a user’s actions
have discouraged applicants disproportion
ately on grounds of race, sex, or ethnic
group. Greater differences in selection rate
may not constitute adverse impact where
the differences are based on small numbers
and are not statistically significant, or
where special recruiting or other programs
cause the pool of minority or female candi
dates to be atypical of the normal pool of
applicants from that group. Where the
user’s evidence concerning the impact of a
selection procedure indicates adverse impact
but is based upon numbers which are too
small to be reliable, evidence concerning the
impact of the procedure over a longer
period of time and/or evidence concerning
the impact which the selection procedure
had when used in the same manner in simi
lar circumstances elsewhere may be consid
ered in determining adverse impact. Where
the user has not maintained data on adverse
impact as required by the documentation
§50.14
section of applicable guidelines, the Federal
enforcement agencies may draw an infer
ence of adverse impact of the selection proc
ess from the failure of the user to maintain
such data, if the user has an underutiliza
tion of a group in the job category, as com
pared to the group’s representation in the
relevant labor market or, in the case of jobs
filled from within, the applicable work
force.
E. Consideration of user’s equal employ
ment opportunity posture. In carrying out
their obligations, the Federal enforcement
agencies will consider the general posture of
the user with respect to equal employment
opportunity for the job or group of jobs in
question. Where a user has adopted an af
firmative action program, the Federal en
forcement agencies will consider the provi
sions of that program, including the goals
and timetables which the user has adopted
and the progress which the user has made
in carrying out that program and in meeting
the goals and timetables. While such affirm
ative action programs may in design and
execution be race, color, sex, or ethnic con
scious, selection procedures under such pro
grams should be based upon the ability or
relative ability to do the work.
Sec. 5. General standards for validity
studies—A. Acceptable types of validity stud
ies. For the purposes of satisfying these
guidelines, users may rely upon criterion-re
lated validity studies, content validity stud
ies or construct validity studies, in accord
ance with the standards set forth in the
technical standards of these guidelines, sec
tion 14 below. New strategies for showing
the validity of selection procedures will be
evaluated as they become accepted by the
psychological profession.
B. Criterion-related, content, and con
struct validity. Evidence of the validity of a
test or other selection procedure by a crite
rion-related validity study should consist of
empirical data demonstrating that the selec
tion procedure is predictive of or significant
ly correlated with important elements of job
performance. See section 14B below. Evi
dence of the validity of a test or other selec
tion procedure by a content validity study
should consist of data showing that the con
tent of the selection procedure is represent
ative of important aspects of performance
on the job for which the candidates are to
be evaluated. See section 14C below. Evi
dence of the validity of a test or other selec
tion procedure through a construct validity
study should consist of data showing that
the procedure measures the degree to which
candidates have identifiable characteristics
which have been determined to be impor
tant in successful performance in the job
for which the candidates are to be evaluat
ed. See section 14D below.
5a
C. Guidelines are consistent with profes
sional standards. The provisions of these
guidelines relating to validation of selection
procedures are intended to be consistent
with generally accepted professional stand
ards for evaluating standardized tests and
other selection procedures, such as those de
scribed in the Standards for Educational
and Psychological Tests prepared by a joint
committee of the American Psychological
Association, the American Educational Re
search Association, and the National Coun
cil on Measurement in Education (American
Psychological Association, Washington,
D.C., 1974) (hereinafter “A.P.A. Standards”)
and standard textbooks and journals in the
field of personnel selection.
D. Need for documentation of validity.
For any selection procedure which is part of
a selection process which has an adverse
impact and which selection procedure has
an adverse impact, each user should main
tain and have available such documentation
as is described in section 15 below.
E. Accuracy and standardization. Validity
studies should be carried out under condi
tions which assure insofar as possible the
adequacy and accuracy of the research and
the report. Selection procedures should be
administered and scored under standardized
conditions.
F. Caution against selection on basis of
knowledges, skills, or ability learned in brief
orientation period. In general, users should
avoid making employment decisions on the
basis of measures of knowledges, skills, or
abilities which are normally learned in a
brief orientation period, and which have an
adverse impact.
G. Method of use of selection procedures.
The evidence of both the validity and utility
of a selection procedure should support the
method the user chooses for operational use
of the procedure, if that method of use has
a greater adverse impact than another
method of use. Evidence which may be suf
ficient to support the use of a selection pro
cedure on a pass/fail (screening) basis may
be insufficient to support the use of the
same procedure on a ranking basis under
these guidelines. Thus, if a user decides to
use a selection procedure on a ranking basis,
and that method of use has a greater ad
verse impact than use on an appropriate
pass/fail basis (see section 5H below), the
user should have sufficient evidence of va
lidity and utility to support the use on a
ranking basis. See sections 3B, 14B (5) and
(6), and 14C (8) and (9).
H. Cutoff scores. Where cutoff scores are
used, they should normally be set so as to
be reasonable and consistent with normal
expectations of acceptable proficiency
within the work force. Where applicants are
ranked on the basis of properly validated se
lection procedures and those applicants
scoring below a higher cutoff score than ap
Department of Justice
propriate in light of such expectations have
little or no chance of being selected for em
ployment, the higher cutoff score may be
appropriate, but the degree of adverse
impact should be considered.
I. Use of selection procedures for higher
level jobs. If job progression structures are
so established that employees will probably,
within a reasonable period of time and in a
majority of cases, progress to a higher level,
it may be considered that the applicants are
being evaluated for a job or jobs at the
higher level. However, where job progres
sion is not so nearly automatic, or the time
span is such that higher level jobs or em
ployees’ potential may be expected to
change in significant ways, it should be con
sidered that applicants are being evaluated
for a job at or near the entry level, A “rea
sonable period of time” will vary for differ
ent jobs and employment situations but will
seldom be more than 5 years. Use of selec
tion procedures to evaluate applicants for a
higher level job would not be appropriate:
(1) If the majority of those remaining em
ployed do not progress to the higher level
job;
(2) If there is a reason to doubt that the
higher level job will continue to require es
sentially similar skills during the progres
sion period; or
(3) If the selection procedures measure
knowledges, skills, or abilities required for
advancement which would be expected to
develop principally from the training or ex
perience on the job.
J. Interim use of selection procedures.
Users may continue the use of a selection
procedure which is not at the moment fully
supported by the required evidence of valid
ity, provided: (1) The user has available sub
stantial evidence of validity, and (2) the
user has in progress, when technically feasi
ble, a study which is designed to produce
the additional evidence required by these
guidelines within a reasonable time. If such
a study is not technically feasible, see sec
tion 6B. If the study does not demonstrate
validity, this provision of these guidelines
for interim use shall 'not constitute a de
fense in any action, nor shall it relieve the
user of any obligations arising under Feder
al law.
K. Review of validity studies for currency.
Whenever validity has been shown in accord
with these guidelines for the use of a par
ticular selection procedure for a job or
group of jobs, additional studies need not be
performed until such time as the validity
study is subject to review as provided in sec
tion 3B above. There are no absolutes in the
area of determining the currency of a validi
ty study. All circumstances concerning the
study, including the validation strategy
used, and changes in the relevant labor
market and the job should be considered in
§50.14
6a
the determination of when a validity study
is outdated.
Sec. 6. Use of selection procedures which
have not been validated—A. Use of alternate
selection procedures to eliminate adverse
impact A user may choose to utilize alter
native selection procedures in order to elimi
nate adverse impact or as part of an affirm
ative action program. See section 13 below.
Such alternative procedures should elimi
nate the adverse impact in the total selec
tion process, should be lawful and should be
as job related as possible.
B. Where validity studies cannot or need
not be performed. There are circumstances
in which a user cannot or need not utilize
the validation techniques contemplated by
these guidelines. In such circumstances, the
user should utilize selection procedures
which are as job related as possible and
which will minimize or eliminate adverse
impact, as set forth below.
(1) Where informal or unscored procedures
are used. When an informal or unscored se
lection procedure which has an adverse
impact is utilized, the user should eliminate
the adverse impact, or modify the procedure
to one which is a formal, scored or quanti
fied measure or combination of measures
and then validate the procedure in accord
with these guidelines, or otherwise justify
continued use of the procedure in accord
with Federal law.
(2) Where formal and scored procedures
are used. When a formal and scored selec
tion procedure is used which has an adverse
impact, the validation techniques contem
plated by these guidelines usually should be
followed if technically feasible. Where the
user cannot or need not follow the valida
tion techniques anticipated by these guide
lines, the user should either modify the pro
cedure to eliminate adverse impact or other
wise justify continued use of the procedure
in accord with Federal law.
★ * *
§50.14
Sec. 13. Affirmative action—A. Affirma
tive action obligations. The use of selection
procedures which have been validated pur
suant to these guidelines does not relieve
users of any obligations they may have to
undertake affirmative action to assure equal
employment opportunity. Nothing in these
guidelines is intended to preclude the use of
lawful selection procedures which assist in
remedying the effects of prior discriminato
ry practices, or the achievement of affirma
tive action objectives.
B. Encouragement of voluntary affirma
tive action programs. These guidelines are
28 CFR Ch. I (7-1-85 Edition)
also intended to encourage the adoption and
implementation of voluntary affirmative
action programs by users who have no obli
gation under Federal law to adopt them; but
are not intended to impose any new obliga
tions in that regard. The agencies issuing
and endorsing these guidelines endorse for
all private employers and reaffirm for all
governmental employers the Equal Employ
ment Opportunity Coordinating Council’s
"Policy Statement on Affirmative Action
Programs for State and Local Government
Agencies” (41 FR 38814, September 13,
1976). That policy statement is attached
hereto as appendix, section 17.
* * *
Appendix
17. Policy statement on affirmative action
(see section 13B). The Equal Employment
Opportunity Coordinating Council was es
tablished by act of Congress in 1972, and
charged with responsibility for developing
and implementing agreements and policies
designed, among other things, to eliminate
conflict and inconsistency among the agen
cies of the Federal Government responsible
for administering Federal law prohibiting
discrimination on grounds of race, color,
sex, religion, and national origin. This state
ment is issued as an initial response to the
requests of a number of State and local offi
cials for clarification of the Government’s
policies concerning the role of affirmative
action in the overall equal employment op
portunity program. While the Coordinating
Council’s adoption of this statement ex
presses only the views of the signatory agen
cies concerning this important subject, the
principles set forth below should serve as
policy guidance for other Federal agencies
as well.
(1) Equal employment opportunity is the
law of the land. In the public sector of our
society this means that all persons, regard
less of race, color, religion, sex, or national
origin shall have equal access to positions in
the public service limited only by their abili
ty to do the job. There is ample evidence in
all sectors of our society that such equal
access frequently has been denied to mem
bers of certain groups because of their sex,
racial, or ethnic characteristics. The remedy
for such past and present discrimination is
twofold.
7a
On the one hand, vigorous enforcement of
the laws against discrimination is essential.
But equally, and perhaps even more impor
tant are affirmative, voluntary efforts on
the part of public employers to assure that
positions in the public service are genuinely
and equally accessible to qualified persons,
without regard to their sex, racial, or ethnic
characteristics. Without such efforts equal
employment opportunity is no more than a
wish. The importance of voluntary affirma
tive action on the part of employers is un
derscored by Title VII of the Civil Rights
Act of 1964, Executive Order 11246, and re
lated laws and regulations—all of which em
phasize voluntary action to achieve equal
employment opportunity.
As with most management objectives, a
systematic plan based on sound organiza
tional analysis and problem identification is
crucial to the accomplishment of affirma
tive action objectives. For this reason, the
Council urges all State and local govern
ments to develop and implement results ori
ented affirmative action plans which deal
with the problems so identified.
The following paragraphs are intended to
assist State and local governments by illus
trating the kinds of analyses and activities
which may be appropriate for a public em
ployer’s voluntary affirmative action plan.
This statement does npt address remedies
imposed after a finding of unlawful discrim
ination.
(2) Voluntary affirmative action to assure
equal employment opportunity is appropri
ate at any stage of the employment process.
The first step in the construction of any af
firmative action plan should be an analysis
of the employer’s work force to determine
whether percentages of sex, race, or ethnic
groups in individual job classifications are
substantially similar to the percentages of
those groups available in the relevant job
market who possess the basic job-related
qualifications.
When substantial disparities are found
through such analyses, each element of the
overall selection process should be exam
ined to determine which elements operate
to exclude persons on the basis of sex, race,
or ethnic group. Such elements include, but
are not limited to, recruitment, testing,
ranking certification, interview, recommen
dations for selection, hiring, promotion, etc.
The examination of each element of the se
lection process should at a minimum include
a determination of its validity in predicting
job performance.
(3) When an employer has reason to be
lieve that its selection procedures have the
exclusionary effect described in paragraph 2
above, it should initiate affirmative steps to
remedy the situation. Such steps, which in
design and execution may be race, color,
sex, or ethnic "conscious,” include, but are
not limited to, the following:
(a) The establishment of a long-term goal,
and short-range, interim goals and timeta
bles for the specific job classifications, all of
which should take into account the avail
ability of basically qualified persons in the
relevant job market;
(b) A recruitment program designed to at
tract qualified members of the group in
question;
(c) A systematic effort to organize work
and redesign jobs in ways that provide op
portunities for persons lacking “journey
man" level knowledge or skills to enter and,
with appropriate training, to progress in a
career field;
(d) Revamping selection instruments or
procedures which have not yet been validat
ed in order to reduce or eliminate exclusion
ary effects on particular groups in particu
lar job classifications;
(e) The initiation of measures designed to
assure that members of the affected group
who are qualified to perform the job are in
cluded within the pool of persons from
which the selecting official makes the selec
tion;
(f) A systematic effort to provide career
advancement training, both classroom and
on-the-job, to employees locked into dead
end jobs; and
(g) The establishment of a system for reg
ularly monitoring the effectiveness of the
particular affirmative action program, and
procedures for making timely adjustments
in this program where effectiveness is not
demonstrated.
(4) The goal of any affirmative action
plan should be achievement of genuine
equal employment opportunity for all quali
fied persons. Selection under such plans
should be based upon the ability of the
applicant(s) to do the work. Such plans
should not require the selection of the un
qualified, or the unneeded, nor should they
require the selection of persons on the basis
of race, color, sex, religion, or national
origin. Moreover, while the Council believes
that this statement should serve to assist
State and local employers, as well as Feder
al agencies, it recognizes that affirmative
action cannot be viewed as a standardized
program which must be accomplished in the
same way at all times in all places.
Accordingly, the Council has not attempt
ed to set forth here either the minimum or
maximum voluntary steps that employers
may take to deal with their respective situa
tions. Rather, the Council recognizes that
under applicable authorities. State and local
employers have flexibility to formulate af
firmative action plans that are best suited
to their particular situations. In this
manner, the Council believes that affirma
tive action programs will best serve the goal
of equal employment opportunity.
8a
Respectfully submitted,
H arold R. T yler, Jr.,
Deputy Attorney General and Chairman
of the Equal Employment Coordinating
Council
M ichael H. M o s k o w ,
' Under Secretary of Labor.
Ethel B ent W alsh,
Acting Chairman, Equal Employment Op
portunity Commission.
R obert E. H ampton,
Chairman, Civil Service Commission.
A rthur E. Flemming,
Chairman, Commission on Civil Rights.
Because of its equal employment opportu
nity responsibilities under the State and
Local Government Fiscal Assistance Act of
1972 (the revenue sharing act), the Depart
ment of Treasury was invited to participate
in the formulation of this policy statement;
and it concurs and joins in the adoption of
this policy statement.
Done this 26th day of August 1976.
R ichard Albrecht,
General Counsel Department of the Treas
ury.
Section 18. Citations. The official title of
these guidelines is “Uniform Guidelines on
Employee Selection Procedures (1978)”. The
Uniform Guidelines on Employee Selection
Procedures (1978) are intended to establish
a uniform Federal position in the area of
prohibiting discrimination in employment
practices on grounds of race, color, religion,
sex, or national origin. These guidelines
have been adopted by the Equal Employ
ment Opportunity Commission, the Depart
ment of Labor, the Department of Justice,
and the Civil Service Commission.
The official citation is:
“Section -—-, Uniform Guidelines on Em
ployee Selection Procedure (1978); 43 FR
— (August 25, 1978).”
The short form citation is:
“Section -----, U.G.E.S.P. (1978); 43 FR
---- (August 25, 1978).”
When the guidelines are cited in connec
tion with the activities of one of the issuing
agencies, a specific citation to the regula
tions of that agency can be added at the end
of the above citation. The specific addition
al citations are as follows:
Equal Employment Opportunity Commis
sion
29 CFR Part 1607
Department of Labor
Office of Federal Contract Compliance Pro
grams
41 CFR Part 60-3
Department of Justice
28 CFR 50.14
Civil Service Commission
5 CFR 300.103(c)
Normally when citing these guidelines,
the section number immediately preceding
the title of the guidelines will be from these
guidelines series 1-18. If a section number
from the codification for an individual
agency is needed it can also be added at the
end of the agency citation. For example,
section 6A of these guidelines could be cited
for EEOC as follows: "Section 6A, Uniform
Guidelines on Employee Selection Proce
dures (1978); 43 F R ---- , (August 25, 1978);
29 CFR Part 1607, section 6A.”
Eleanor H olmes N orton,
Chair, Equal Employment Opportunity
Commission.
Alan K. Campbell,
Chairman, Civil Service Commission.
R ay M arshall,
Secretary of Labor.
G riffin B. B ell,
Attorney General.
(28 U.S.C. 509; 5 U.S.C. 301)
[Order No. 668-76, 41 FR 51735, Nov. 23,
1976, as amended at 43 FR 38295, Aug. 25,
19781
9a -
29 CPU Ch. XIV (7-1-85 Edition)
PART 1608— AFFIRMATIVE ACTION
APPROPRIATE UNDER TITLE VII OF
THE CIVIL RIGHTS ACT OF 1964,
AS AMENDED
Sec.
1608.1 Statement of purpose.
1608.2 Written interpretation and opinion.
1608.3 Circumstances under which volun
tary affirmative action is appropriate.
1608.4 Establishing __ affirmative action
plans.
1608.5 Affirmative action compliance pro
grams under Executive Order No. 11246,
as amended.
1608.6 Affirmative action plans which are
part of Commission conciliation or set
tlement agreements.
1608.7 Affirmative action plans or pro
grams under State or local law.
1608.8 Adherence to court order.
1608.9 Reliance on directions of other gov
ernment agencies.
1608.10 Standard of review.
1608.11 Limitations on the application of
these guidelines.
1608.12 Equal employment opportunity
plans adopted pursuant to section 717 of
Title VII.
A uthority: Sec. 713 the Civil Rights Act
of 1964, as amended, 42 U.S.C. 200Qe-12, 78
Stat. 265.
Source: 44 PR 4422, Jan. 19, 1979, unless
otherwise noted.
§ 1608.1 Statement of purpose.
(a) N e e d f o r G u id e lin e s . Since the
passage of Title VII in 1964, many em
ployers, labor organizations, and other
persons subject to Title VII have
changed their employment practices
and systems to improve employment
opportunities for minorities and
women, and this must continue. These
changes have been undertaken either
on the initiative of the employer, labor
organization, or other person subject
to Title VII, or as a result of concilia
tion efforts under Title VII, action
under Executive Order No. 11246, as
amended, or under other Federal,
state, or local laws, or litigation. Many
decisions taken pursuant to affirma
tive action plans or programs have
been race, sex, or national origin con
scious in order to achieve the Congres
sional purpose of providing equal em
ployment opportunity. Occasionally,
these actions have been challenged as
inconsistent with Title VII, because
they took into account race, sex, or na
tional origin. This is the so-called “re
verse discrimination” claim. In such a
situation, both the affirmative action
undertaken to improve the conditions
of minorities and women, and the ob
jection to that action, are based upon
the principles of Title VII. Any uncer
tainty as to the meaning and applica
tion of Title VII in such situations
threatens the accomplishment of the
clear Congressional intent to encour
age voluntary affirmative action. The
Commission believes that by the en
actment of Title VII Congress did not
intend to expose those who comply
with the Act to charges that they are
violating the very statute they are
seeking to implement. Such a result
would immobilize or reduce the efforts
of many who would otherwise take
action to improve the opportunities of
minorities and women without litiga
tion, thus frustrating the Congression
al intent to encourage voluntary
action and increasing the prospect of
Title VII litigation. The Commission
believes that it is now necessary to
clarify and harmonize the principles
of Title VII in order to achieve these
Congressional objectives and protect
those employers, labor organizations,
and other persons who comply with
the principles of Title VII.
(b) P u r p o s e s o f T i t le VII. Congress
enacted Title VII in order to improve
the economic and social conditions of
minorities and women by providing
equality of opportunity in the work
place. These conditions were part of a
larger pattern of restriction, exclusion,
discrimination, segregation, and inferi
or treatment of minorities and women
in many areas of life.2 The Legislative
2 Congress has also addressed these condi
tions in .other laws, including the Equal Pay
Act of 1963, Pub. L. 88-38. 77 Stat. 56 (1963),
as amended; the other Titles of the Civil
Rights Act of 1964, Pub. L. 88-352, 78 Stat.
241 (1964), as amended; the Voting Rights
Act of 1965, Pub. L. 89-110, 79 Stat. 437
(1965), as amended: the Fair Housing Act of
1968, Pub. L. 90-284, Title VII, 82 Stat. 73,
81 (1968), as amended; the Educational Op
portunity Act (Title IX), Pub. L. 92-318, 86
Continued
10a
§ 1608.1Equal Employment Opportunity Comm.
Histories of Title VII, the Equal Pay
Act, and the Equal Employment Op
portunity Act of 1972 contain exten
sive analyses of the higher unemploy
ment rate, the lesser occupational
status, and the consequent lower
income levels of minorities and
women.3 The purpose of Executive
Order No. 11246, as amended, is simi
lar to the purpose of Title VII. In re
sponse to these economic and social
conditions, Congress, by passage of
Title VII, established a national policy
against discrimination in employment
on grounds of race, color, religion, sex,
and national origin. In addition, Con
gress strongly encouraged employers,
labor organizations, and other persons
subject to Title VII (hereinafter re
ferred to as “persons,” see section
701(a) of the Act) to act on a volun
tary basis to modify employment prac
tices and systems which constituted
barriers to equal employment opportu
nity, without awaiting litigation or
formal government action. Confer
ence, conciliation, and persuasion wTere
the primary processes adopted by Con
gress in 1964, and reaffirmed in 1972,
to achieve these objectives, with en
forcement action through the courts
or agencies as a supporting procedure
where voluntary action did not take
place and conciliation failed. See § 706
of Title VII.
(c) I n te r p r e ta t io n in f u r th e r a n c e o f
le g is la t i v e p u r p o s e . The principle of
nondiscrimination in employment be
cause of race, color, religion, sex, or
national origin, and the principle that
each person subject to Title VII
Stat. 373 (1972), as amended; and the Equal
Employment Opportunity Act of 1972, Pub.
L. 92-261, 86 Stat. 103 (1972), as amended.
’Equal Pay Act of 1963: S. Rep. No. 176,
88th Cong., 1st Sess., 1-2 (1963). Civil Rights
Act of 1964: H.R. Rep. No. 914, pt. 2, 88th
Cong., 1st Sess. (1971). Equal Employment
Opportunity Act of 1972: H.R. Rep. No. 92-
238, 92d Cong., 1st Sess. (1971): S. Rep. No.
92-415, 92d Cong., 1st Sess. (1971). See also.
Equal Employment Opportunity Commis
sion, Equal Employment Opportunity
Report—1975, Job Patterns for Women in
Private Industry (1977); Equal Employment
Opportunity Commission, Minorities and
Women in State and Local Government—
1975 (1977); United States Commission on
Civil Rights, Social Indicators of Equality
for Minorities and Women (1978).
should take voluntary action to cor
rect the effects of past discrimination
and to prevent present and future dis
crimination without awaiting litiga
tion, are mutually consistent and
interdependent methods of addressing
social and economic conditions which
precipitated the enactment of Title
VII. Voluntary affirmative action to
improve opportunities for minorities
and women must be encouraged and
protected in order to carry out the
Congressional intent embodied in Title
VII. * Affirmative action under these
principles means those actions appro
priate to overcome the effects of past
or present practices, policies, or other
barriers to equal employment opportu
nity. Such voluntary affirmative
action cannot be measured by the
standard of whether it would have
been required had there been litiga
tion, for this standard would under
mine the legislative purpose of first
encouraging voluntary action without
litigation. Rather, persons subject to
Title VII must be allowed flexibility in
modifying employment systems and
practices to comport with the pur
poses of Title VII. Correspondingly,
Title VII must be construed to permit
such voluntary action, and those
taking such action should be afforded
the protection against Title VII liabil
ity which the Commission is author
ized to provide under section 713(b)(1).
(d) G u id e l in e s in te r p r e t T i t le V II
a n d a u th o r iz e u se o f S e c t io n 7 1 3 (b )(1 ).
These Guidelines describe the circum
stances in which persons subject to
Title VII may take or agree upon
action to improve employment oppor
tunities of minorities and women, and
describe the kinds of actions they may
take which are consistent with Title
VII. These Guidelines constitute the
Commission’s interpretation of Title
’Affirmative action often improves oppor
tunities for ail members of the workforce, as
where affirmative action includes the post
ing of notices of job vacancies. Similarly,
the integration of previously segregated
jobs means that all workers will be provided
opportunities to enter jobs previously re
stricted. See, e.g., EEOC v. AT&T, 419 F.
Supp. 1022 (E.D.Pa. 1976), aff'd, 556 F. 2d
167 (3rd Cir. 1977), cert denied, 98 S.Ct.
3145 (1978).
11a
VII and will be applied in the process
ing of claims of discrimination which
involve voluntary affirmative action
plans and programs. In addition, these
Guidelines state the circumstances
under which the Commission will rec
ognize that a person subject to Title
VII is entitled to assert that actions
were taken “in good faith, in conformi
ty with, and in reliance upon a written
interpretation or opinion of the Com
mission,” including reliance upon the
interpretation and opinion contained
in these Guidelines, and thereby
invoke the protection of section
713(b)(1) of Title VII.
(e) R e v ie w o f e x i s t in g p la n s r e c o m
m e n d e d . Only affirmative action plans
or programs adopted in good faith, in
conformity with, and in reliance upon
these Guidelines can receive the full
protection of these Guidelines, includ
ing the section 713(b)(1) defense. See
§ 1608,10. Therefore, persons subject
to Title VII who have existing affirma
tive action plans, programs, or agree
ments are encouraged to review them
in light of these Guidelines, to modify
them to the extent necessary to
comply with these Guidelines, and to
readopt or reaffirm them.
§ 1608.2 Written interpretation and opin
ion.
These Guidelines constitute “a writ
ten interpretation and opinion” of the
Equal Employment Opportunity Com
mission as that term is used in section
713(b)(1) of Title VII of the Civil
Rights Act of 1964, as amended, 42
U.S.C. 2000e-12(b)(l), and section
1601.33 of the Procedural Regulations
of the Equal Employment Opportuni
ty Commission (29 CPR 1601.30; 42 FR
55,394 (October 14, 1977)). Section
713(b)(1) provides:
In any action or proceeding based on any
alleged unlawful employment practice, no
person shall be subject to any liability or
punishment for or on account of (1) the
commission by such person of an unlawful
employment practice if he pleads and
proves that the act or omission complained
of was in good faith, in conformity with,
and in reliance on any written interpreta
tion or opinion of the Commission *. * *.
Such a defense, if established, shall be a bar
to the action or proceeding, notwithstand
ing that * * * after such act or omission,
such interpretation or opinion is modified
§ 1608.2
or rescinded or is determined by judicial au
thority to be invalid or of no legal ef
fect * * *.
The applicability of these Guidelines
is subject to the limitations on use set
forth in § 1608.11.
§ 1608.3 Circumstances under which vol
untary affirmative action is appropri
ate.
(a) A d v e r s e e f f e c t Title VII prohibits
practices, procedures, or policies which
have an adverse impact unless they
are justified by business necessity. In
addition, Title VII proscribes practices
which “tend to deprive” persons of
equal employment opportunities. Em
ployers, labor organizations and other
persons subject to Title VII may take
affirmative action based on an analy
sis which reveals facts constituting
actual or potential adverse impact, if
such adverse impact is likely to result
from existing or contemplated prac
tices.
(b) E ffe c ts o f p r i o r d i s c r im in a to r y
p r a c t i c e s . Employers, labor organiza
tions, or other persons subject to Title
VII may also take affirmative action
to correct the effects of prior discrimi
natory practices. The effects of prior
discriminatory practices can be initial
ly identified by a comparison between
the employer’s work force, or a part
thereof, and an appropriate segment
of the labor force.
(c) L i m i t e d la b o r p o o l. Because of
historic restrictions by employers,
labor organizations, and others, there
are circumstances in which the avail
able pool, particularly of qualified mi
norities and women, for employment
or promotional opportunities is artifi
cially limited. Employers, labor organi
zations, and other persons subject to
Title VII may, and are encouraged to
take affirmative action in such circum
stances, including, but not limited to,
the following:
(1) Training plans and programs, in
cluding on-the-job training, which em
phasize providing minorities and
women with the opportunity, skill,
and expericence necessary to perform
the functions of skilled trades, crafts,
or professions;
(2) Extensive and focused recruiting
activity;
29 CFR Ch. XIV (7-1-85 Edition)
12a
(3) Elimination of the adverse
impact caused by unvalidated selection
criteria (see sections 3 and 6, Uniform
Guidelines on Employee Selection
Procedures (1978), 43 FR 30,290;
38,297; 38,299 (August 25, 1978));
(4) Modification through collective
bargaining where a labor organization
represents employees, or unilaterally
where one does not, of promotion and
layoff procedures.
§1608.4 Establishing affirmative action
plans.
An affirmative action plan or pro
gram under this section shall contain
three elements: a reasonable self anal
ysis; a reasonable basis for concluding
action is appropriate; and reasonable
action.
(a) R e a s o n a b le s e l f a n a ly s is . The ob
jective of a self analysis is to deter
mine whether employment practices
do, or tend to, exclude, disadvantage,
restrict, or result in adverse impact or
disparate treatment of previously ex
cluded or restricted groups or leave
uncorrected the effects of prior dis
crimination, and if so, to attempt to
determine why. There is no mandato
ry method of conducting a self analy
sis. The employer may utilize tech
niques used in order to comply with
Executive Order No. 11246, as amend
ed, and its implementing regulations,
including 41 CFR Part 60-2 (known as
Revised Order 4), or related orders
issued by the Office of Federal Con
tract Compliance Programs or its au
thorized agencies, or may use an anal
ysis similar to that required under
other Federal, state, or local laws or
regulations prohibiting employment
discrimination. In conducting a self
analysis, the employer, labor organiza
tion, or other person subject to Title
VII should be concerned with the
effect on its employment practices of
circumstances which may be the result
of discrimination by other persons or
institutions. See G rig g s v. D u k e P o w e r
Co., 401 U.S. 424 (1971).
(b) R e a s o n a b le b a s is . If the self anal
ysis shows that one or more employ
ment practices: (1) Have or tend to
have an adverse effect on employment
opportunities of members of previous
ly excluded groups, or groups whose
employment or promotional opportu
Equal Employment Opportunity Comm.
nities have been artificially limited, (2)
leave uncorrected the effects of prior
discrimination, or (3) result in dispar
ate treatment, the person making the
self analysis has a reasonable basis for
concluding that action is appropriate.
It is not necessary that the self analy
sis establish a violation of Title VII.
This reasonable basis exists without
any admission or formal finding that
the person has violated Title VII, and
without regard to whether there exists
arguable defenses to a Title VII
action.
(c) R e a s o n a b le a c t io n . The action
taken pursuant to an affirmative
action plan or program must be rea
sonable in relation to the problems
disclosed by the self analysis. Such
reasonable action may include goals
and timetables or other appropriate
employment tools which recognize the
race, sex, or national origin of appli
cants or employees. It may include the
adoption of practices which will elimi
nate the actual or potential adverse
impact, disparate treatment, or effect
or past discrimination by providing op
portunities for members of groups
which have been excluded, regardless
of whether the persons benefited were
themselves the victims of prior policies
or procedures which produced the ad
verse impact or disparate treatment or
which perpetuated past discrimina
tion.
(1) n ix is t r a t io n s o f a p p r o p r i a t e a f
f i r m a t i v e a c t io n . Affirmative action
plans or programs may include, but
are not limited to, those described in
the Equal Employment Opportunity
Coordinating Council “Policy State
ment on Affirmative Action Programs
for State and Local Government Agen
cies,” 41 FR 38,814 (September 13,
1976), reaffirmed and extended to all
persons subject to Federal equal em
ployment opportunity laws and orders,
in the Uniform Guidelines on Employ
ee Selection Procedures (1978) 43 FR
38,290; 38,300 (Aug. 25, 1978). That
statement reads, in relevant part:
When an employer has reason to believe
that its selection procedures have • * • ex
clusionary effect • * \ it should initiate af
firmative steps to remedy the situation.
Such steps, which in design and execution
may be race, color, sex or ethnic ‘conscious,’
§ 1608.4
13a
Equal Employment Opportunity Comm. § 1608.7
compliance program adopted pursuant
to Executive Order No. 11246, as
amended, and its implementing regula
tions, is the basis of a complaint filed
under Title VII, or is alleged to be the
justification for an action which is
challenged under Title VII, the Com
mission will investigate to determine
whether the affirmative action compli
ance program was adopted by a person
subject to the Order and pursuant to
the Order, and whether adherence to
the program was the basis of the com
plaint or the justification.
(1) P r o g r a m s p r e v io u s ly a p p r o v e d . If
the Commission makes the determina
tion described in paragraph (a) of this
section and also finds that the affirm
ative action program has been ap
proved by an appropriate official of
the Department of Labor or its au
thorized agencies, or is part of a con
ciliation or settlement agreement or
an order of an administrative agency,
whether entered by consent or after
contested proceedings brought to en
force Executive Order No. 11246, as
amended, the Commission will issue a
determination of no reasonable cause.
(2) P r o g r a m n o t p r e v io u s ly a p
p r o v e d . If the Commission makes the
determination described in paragraph
(a), of this section but the program
has not been approved by an appropri
ate official of the Department of
Labor or its authorized agencies, the
Commission will: (i) Follow the proce
dure in § 1608.10(a) and review the
program, or (ii) refer the plan to the
Department of Labor for a determina
tion of whether it is to be approved
under Executive Order No. 11246, as
amended, and its implementing regula
tions. If, the Commission finds that
the program does conform to these
Guidelines, or the Department of
Labor approves the affirmative action
compliance program, the Commission
will issue a determination of no rea
sonable cause under § 1608.10(a).
(b) R e l ia n c e o n th e se g u id e l in e s . In
addition, if the affirmative action com
pliance program has been adopted in
good faith reliance on these Guide
lines, the provisions of section
713(b)(1) of Title VII and of
§ 1608.10(b), below, may be asserted by
the contractor.
§ 1608.6 Affirmative action plans which
are part of Commission conciliation or
settlement agreements.
(a) P r o c e d u r e s f o r r e v ie w o f p la n s . If
adherence to a conciliation or settle
ment agreement executed under Title
VII and approved by a responsible of
ficial of the EEOC is the basis of a
complaint filed under Title VII, or is
alleged to be the justification for an
action challenged under Title VII, the
Commission will investigate to deter
mine: (1) Whether the conciliation
agreement or settlement agreement
was approved by a responsible official
of the EEOC, and (2) whether adher
ence to the agreement was the basis
for the complaint or justification. If
the Commission so finds, it will make
a determination of no reasonable
cause under § 1608.10(a) and will
advise the respondent of its right
under section 713(b)(1) of Title VII to
rely on the conciliation agreement.
(b) R e l ia n c e o n th e s e g u id e l in e s . In
addition, if the affirmative action plan
or program has been adopted in good
faith reliance on these Guidelines, the
provisions of section 713(b)(1) of Title
VII and of § 1608.10(b), below, may be
asserted by the respondent.
§ 1608.7 Affirmative action plans or pro
grams under State or local law.
Affirmative action plans or pro
grams executed by agreement with
state or local government agencies, or
by order of state or local government
agencies, whether entered by consent
or after contested proceedings, under
statutes or ordinances described in
Title VII, will be reviewed by the Com
mission in light of the similar pur
poses of Title VII and such statutes
and ordinances. Accordingly, the Com
mission will process Title VII com
plaints involving such affirmative
action plans or programs under this
section.
(a) P r o c e d u r e s f o r r e v ie w o f p la n s o r
p r o g r a m s . If adherence to an affirma
tive action plan or program executed
pursuant to a state statute or local or
dinance described in Title VII is the
basis of a complaint filed under Title
VII or is alleged to be the justification
for an action which is challenged
under Title VII, the Commission will
14a
§ 1608.5
include, but are not limited to, the follow
ing:
The establishment of a long term goal and
short range, interim goals and timetables
for the specific job classifications, all of
which should take into account the avail
ability of basically qualified persons in the
relevant job market;
A recruitment program designed to attract
qualified members of the group in question;
A systematic effort to organize work and
re-design jobs in ways that provide opportu
nities for persons lacking ‘journeyman’ level
knowledge or skills to enter and, with ap
propriate training, to progress in a career
field;
Revamping selection instruments or pro
cedures which have not yet been validated
in order to reduce or eliminate exclusionary
effects on particular groups in particular
job classifications;
The initiation of measures designed to
assure that members of the affected group
who are qualified to perform the job are in
cluded within the pool of persons from
which the selecting official makes the selec
tion;
A systematic effort to provide career ad
vancement training, both classroom and on-
the-job, to employees locked into dead end
jobs; and
The establishment of a system for regu
larly monitoring the effectiveness of the
particular affirmative action program, and
procedures for making timely adjustments
in this program where effectiveness is not
demonstrated.
(2) S ta n d a r d s o f r e a s o n a b le a c t io n .
In considering the reasonableness of a
particular affirmative action plan or
program, the Commission will general
ly apply the following standards:
(i) The plan should be tailored to
solve the problems which were identi
fied in the self analysis, see
i 1608.4(a), supra, and to ensure that
employment systems operate fairly in
the future, while avoiding unnecessary
restrictions on opportunities for the
workforce as a whole. The race, sex,
and national origin conscious provi
sions of the plan or program should be
maintained only so long as is neces
sary to achieve these objectives.
(ii) Goals and timetables should be
reasonably related to such consider
ations as the effects of past discrimi
nation, the need for prompt elimina
tion of adverse impact or disparate
treatment, the availability of basically
qualified or qualifiable applicants, and
the number of employment opportuni
ties expected to be available.
29 CFR Ch. XIV (7-1-85 Edition)
(d) W r itte n o r u n w r i t t e n p la n s o r
p r o g r a m s —(1) W r it te n p la n s re q u ire d
f o r 713(b)(1) P r o te c t io n . The protec
tion of section 713(b) of Title VII will
be accorded by the Commission to a
person subject to Title VII only if the
self analysis and the affirmative
action plan are dated and in writing,
and the plan otherwise meets the re
quirements of Section 713(b)(1). The
Commission will not require that
there be any written statement con
cluding that a Title VII violation
exists.
(2) R e a s o n a b le c a u se d e te r m in a
tio n s . Where an affirmative action
plan or program is alleged to violate
Title VII, or is asserted as a defense to
a charge of discrimination, the Com
mission will investigate the charge in
accordance with its usual procedures
and pursuant to the standards set
forth in these Guidelines, whether or
not the analysis and plan are in writ
ing. However, the absence of a written
self analysis and a written affirmative
action plan or program may make it
more difficult to provide credible evi
dence that the analysis was conducted,
and that action was taken pursuant to
a plan or program based on the analy
sis. Therefore, the Commission recom
mends that such analyses and plans be
in writing.
§ 1608.5 Affirmative action compliance
programs under Executive Order No.
11246, as amended.
Under Title VII, affirmative action
compliance programs adopted pursu
ant to Executive Order No. 11246, as
amended, and its implementing regula
tions, including 41 CFR Part 60-2 (Re
vised Order 4), will be considered by
the Commission in light of the similar
purposes of Title VII and the Execu
tive Order, and the Commission’s re
sponsibility under Executive Order
No. 12067 to avoid potential conflict
among Federal equal employment op
portunity programs. Accordingly, the
Commission will process Title VII
complaints involving such affirmative
action compliance programs under this
section.
(a) P ro c e d u re s f o r r e v ie w o f A f f i r m a
t iv e A c t io n C o m p lia n c e P ro g ra m s . If
adherence to an affirmative action
15a
was adopted or implemented in good
faith, in conformity with, and in reli
ance upon these Guidelines, and the
self analysis and plan are in writing,
the Commission will determine wheth
er such assertion is true. If the Com
mission so finds, it will so state in the
determination of no reasonable cause
and will advise the respondent that:
(1) The Commission has found that
the respondent is entitled to the pro
tection of section 713(b)(1) of Title
VII; and
(2) That the determination is itself
an additional written interpretation or
opinion of the Commission pursuant
to section 713(b)(1).
§ 1608.11 Limitations on the application
of these guidelines.
(a) N o d e t e r m in a t io n o f a d e q u a c y o f
p la n o r p r o g r a m . These Guidelines are
applicable only with respect to the cir
cumstances described in § 1608.1(d),
above. They do not apply to, and the
section 713(b)(1) defense is not avail
able for the purpose of, determining
the adequacy of an affirmative action
plan or program to eliminate discrimi
nation. Whether an employer who
takes such affirmative action has done
enough to remedy such discrimination
will remain a question of fact in each
case.
(b) G u id e l in e s in a p p l i c a b le in a b
s e n c e o f a f f i r m a t iv e a c t io n . Where an
affirmative action plan or program
does not exist, or where the plan or
program is not the basis of the action
complained of, these Guidelines are in
applicable.
(c) C u r r e n c y o f p la n o r p r o g r a m .
Under section 713(b)(1), persons may
rely on the plan or program only
during the time when it is current.
Currency is related to such factors as
progress in correcting the conditions
disclosed by the self analysis. The cur
rency of the plan or program is a ques
tion of fact to be determined on a case
by case basis. Programs developed
under Executive Order No. 11246, as
amended, will be deemed current in ac
cordance with Department of Labor
regulations at 41 CFR Chapter 60, or
successor orders or regulations.
Equal Employment Opportunity Comm.
§ 1608.12 Equal employment opportunity
plans adopted pursuant to section 717
of Title VII.
If adherence to an Equal Employ
ment Opportunity Plan, adopted pur
suant to Section 717 of Title VII, and
approved by an appropriate official of
the U.S. Civil Service Commission, is
the basis of a complaint filed under
Title VII, or is alleged to be the justifi
cation for an action under Title VII,
these Guidelines will apply in a
manner similar to that set forth in
§ 1608.5. The Commission will issue
regulations setting forth the proce
dure for processing such complaints.
§ 1608.12
16a
FRIDAY, MARCH 2, 1979
PART IV
ff m m EQUAL EMPLOYMENT
OPPORTUNITY
A . COMMISSION
OFFICE OF PERSONNEL
MANAGEMENT
DEPARTMENT OF JUSTICE
DEPARTMENT OF LABOR
DEPARTMENT OF THE
TREASURY
ADOPTION OF QUESTIONS AND
ANSWERS TO CLARIFY AND
PROVIDE A COMMON
INTERPRETATION OF THE
UNIFORM GUIDELINES ON
EMPLOYEE SELECTION
PROCEDURES
17a
RULES AND REGULATIONS11996
[ 6 5 7 0 -0 6 -M}
Title 29— la b o r
CHAPTER XIV— EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
PART 1607— UNIFORM GUIDELINES
ON EMPLOYEE SELECTION PROCE
DURES (1978)
Title 5— A dm inistrative Personnel
OFFICE OF PERSONNEL
MANAGEMENT
PART 300— EMPLOYMENT
(GENERAL)
Title 28— Judicial A dm inistration
CHAPTER I— DEPARTMENT OF
JUSTICE
PART 50— STATEMENTS OF POUCY
Title 31— M oney an d Finance:
Treasury
CHAPTER I— MONETARY OFFICES:
DEPARTMENT OF THE TREASURY
PART 51— FISCAL ASSISTANCE TO
STATE AND LOCAL GOVERNMENTS
Title 41— Public C ontracts and
P roperty M anagem ent
CHAPTER 60— OFFICE OF FEDERAL
CONTRACT COMPLIANCE PRO
GRAMS, DEPARTMENT OF LABOR
PART 6 0 -3 — UNIFORM GUIDELINES
ON EMPLOYEE SELECTION PROCE
DURES (1978)
A doption of Q uestions an d A nsw ers
To Clarify an d Provide a Common
In terp reta tion of th e Uniform
G uidelines on Em ployee Selection
P rocedures
AGENCIES: Equal Employment Opportunity Commission, Office of Personnel Management, Department of Justice, Department of Labor and Department of Treasury.
ACTION: Adoption of questions and answers designed to clarify and provide a common interpretation of the Uniform Guidelines on Employee Selection Procedures.
SUMMARY: The Uniform Guidelines on Employee Selection Procedures were issued by the five Federal agen
cies having primary responsibility for the enforcement of Federal equal employment opportunity laws, to establish a uniform Federal government position. See 43 FR 38290, et seq. (Aug. 25. 1978) and 43 FR 40223 (Sept. II. 1978). They became effective on September 25. 1978, The issuing agencies recognize the need for a common interpretation of the Uniform Guidelines, as well as the desirability of providing additional guidance to employers and other users, psychologists, and investigators, compliance officers and other Federal enforcement, personnel. These Questions and Answers are intended to address that need and to provide such guidance.
EFFECTIVE DATE: March 2. 1979. •
FOR FURTHER INFORMATION CONTACT:
A. Diane Graham, Assistant Director, Affirmative Employment Programs, Office of Personnel Management. 1900 E Street, NW„ Washington. D.C. 20415, 202/632-4420.
James Hellings, Special Assistant to the Assistant Director, Intergovernmental Personnel Programs. Office of Personnel Management, 1900 E Street, NW„ Washington, D.C. 20415, 202/632-6248.
Kenneth A. Millard, Chief, State and Local Section. Personnel Research and Development Center, Office of Personnel Management, 1900 E St., NW„ Washington, D.C. 20415, 202-632-6238.
Peter C. Robertson. Director, Office of Policy Implementation. Equal Employment Opportunity Commission, 2401 E Street, NW„ Washington. D.C. 20508. 202/634-7060.
David L. Rose, Chief, Employment Section, Civil Rights Division, Department of Justice, 10th Street and Pennsylvania Avenue, NW.« Washington. D.C. 20530, 202/633-3831.
Donald J. Schwartz. Psychologist, Office of Federal Contract Compliance Programs, Room C-3324, Department of Labor, 200 Constitution Avenue, NW„ Washington. D.C. 20210, 202/523-9428.
Herman Schwartz, Chief Counsel. Office of Revenue Sharing, Department of the Treasury, 2401 E Street, NW„ Washington, D.C. 20220, 202/ 634-5182.
James O. Taylor, Jr., Research Psychologist. Office of Systemic Programs, Equal Employment Opportunity Commission. 2401 E St„ NW., Washington, D.C. 20506, 202/254- 3039. Introduction
The problems addressed by the Uniform Guidelines on Employee Selection Procedures (43 FR 38290 et seq.. August 25, 1978) are numerous and im
portant, and some of them are complex. The history of the development of those Guidelines is set forth in the introduction to them (43 FR 38290- 95). The experience of the agencies has been that a series of answers to commonly asked questions is helpful In providing guidance not only to employers and other users, but also to psychologists and others who are called upon to conduct validity studies, and to investigators, compliance officers and other Federal personnel who have enforcement responsibilities.The Federal agencies which issued the Uniform Guidelines— the Departments of Justice and Labor, the Equal Employment Opportunity Commission; the Civil Service Commission (which has been succeeded in relevant part by the Office of Personnel Management), and the Office of Revenue Sharing, Treasury Department—recognize that the goal of a uniform position on these issues can best be achieved through a common interpretation of the same guidelines. The following Questions and Answers are part of such a common interpretation. The material included is intended to interpret and clarify, but not to modify, the provisions of the Uniform Guidelines. The questions selected are commonly asked questions in the field and those suggested by the Uniform Guidelines themselves and by the extensive comments received on the various sets of proposed guidelines prior to their adoption. Terms are used in- the questions and answers as they are defined in the Uniform Guidelines.The agencies recognize that additional questions may be appropriate for similar treatment at a later date, and contemplate working together to proride additional guidance in interpreting the Uniform Guidelines. Users and other interested persons are invited to submit additional questions.
Eleanor Holmes Norton.
Chair, Equal Employment
Opportunity Commission.Alan K. Campbell.
Director, Office of
Personnel Management Drew S. Days III,
Assistant Attorney General.
Citril Rights Division, Depart
ment of Justice.W elden Rougeau,
Director, Office of Federal Con
tract Compliance, Department
of Labor.Kent A. Peterson,
Acting Deputy Director,
Office of Revenue Sharing.
I. Purpose and Scope
l. Q. What is the purpose of the Guidelines?A. The guidelines are designed to aid in the achievement of our nation's
FEDERAL REGISTER, VOL 44, NO, 43— FRIDAY, MARCH 2, 1979
18a
30. Q. When may a user be race, sex
or ethnic-conscious?
A. The Guidelines recognize that af
firmative action programs may be
race, sex or ethnic conscious in appro
priate circumstances, (See Sections 4E
and 13; See also Section 17, Appendix).
In addition to obligatory affirmative
action programs (See Question 29), the
Guidelines encourage the adoption of
voluntary affirmative action programs.
Users choosing to engage in voluntary
affirmative action are referred to
EEOC’s Guidelines on Affirmative
Action (44 F.R. 4422, January 19,
1979). A user may Justifiably be race,
sex or ethnic-conscious in circum
stances where it has reason to believe
that qualified persons of specified
race, sex or ethnicity have been or
may be subject to the exclusionary ef
fects of its selection procedures or
other employment practices in its
work force or particular jobs therein.
In establishing long and short range
goals, the employer may use the race,
sex, or ethnic classification as the
basis for such goals (Section 17(3) (a)).
In establishing a recruiting program,
the employer may direct its recruiting
activities to locations or institutions
which have a high proportion of the
race, sex, or ethnic group which has
been excluded or underutilized (sec
tion 17(3) (b)). In establishing the pool
of qualified persons from which final
selections are to be made, the employ
er may take reasonable steps to assure
that members of the excluded or un
derutilized race, sex, or ethnic group
are included in the pool (Section 17(3)
<e)).
Similarly, the employer may be race,
sex or ethnic-conscious in determining
what changes should be implemented
if the objectives of the programs are
not being met (Section 17(3) (g)).
Even apart from affirmative action
programs a user may be race, sex or
ethnic-conscious in taking appropriate
and lawful measures to eliminate ad
verse impact from selection procedures
(Section 6A).
31. Q. Section 6A authorizes the use
of alternative selection procedures to
eliminate adverse impact, but does not
appear to address the issue of validity.
Thus, the use of alternative selection
procedures without adverse impact
seems to be presented as an option in
lieu of validation. Is that its intent?
A. Yes. Under Federal equal employ
ment opportunity law the use of any
selection procedure which has an ad
verse impact on any race, sex or ethnic
group is discriminatory unless the pro
cedure has been properly validated, or
the use of the procedure is otherwise
justified under Federal law. G rig g s v.
D u k e P o w e r Co„ 401 U.S. 424 (1971);
Section 3A. If a selection procedure
h ax an adverse impact, therefore, Fed
eral equal employment opportunity
law authorizes the user to choose
lawful alternative procedures which
eliminate the adverse impact rather
than demonstrating the validity of the
original selection procedure.
Many users, while wishing to vali
date all of their selection procedures,
are not able to conduct the validity
studies immediately. Such users have
the option of choosing alternative
techniques which eliminate adverse
impact, with a view to providing a
basis for determining subsequently
which selection procedures are valid
and have as little adverse impact as
possible.
Apart from Federal equal employ
ment opportunity law, employers have
economic incentives to use properly
validated selection procedures. Noth
ing in Section 6A should be interpret
ed as discouraging the use of properly
validated selection procedures; but
Federal equal employment opportuni
ty law does not require validity studies
to be conducted unless there is adverse
impact. See Section 2C.
19a
72. Q. What options does a user have
if a criterion-related study is appropri
ate but is not feasible because there
are not enough persons in the job?
A. There are a number of options
the user should consider, depending
upon the particular facts and circum
stances, such as:
1. Change the procedure so as to
eliminate adverse impact (see Section
6A);
2. Validate a procedure through a
content validity strategy, if appropri
ate (see Section 14C and Questions 54
and 74):
3. Use a selection procedure validat
ed elsewhere in conformity with the
Guidelines (see Sections 7-8 and Ques
tion 66); -
4. Engage in a cooperative study
with other facilities or users (in coop
eration with such users either bilater
ally or through industry or trade asso
ciations or governmental groups), or
participate in research studies con
ducted by the state employment secu
rity system. Where different locations
are combined, care is needed to insure
that the jobs studied are in fact the
same and that the study is adequate
and in conformity with the Guidelines
(see Sections 8 and 14 and Question
45).
5. Combine essentially similar jobs
into a single study sample. See Section
1 4 B (1 ).
20a
Certificate of Service
I certify that, on this night of the 20th day of
November, 1985, I served two copies of the foregoing Brief Amici
Curiae for the Lawyers' Committee for Civil Rights Under Law, the
Washington Lawyers' Committee for Civil Rights Under Law, and the
NAACP Legal Defense and Educational Fund, Inc. , to counsel of
record in this case, at the addresses set forth below, by
U.S. mail, first class, postage prepaid, addressed to them as
follows:
Joan A. Burt, Esq.
310 Oklahoma Avenue N.E., Suite 4
Washington, D.C. 2 0002
Karl W. Carter, Jr.
1850 K Street, N.W., Suite 880
Washington, D.C. 20036
John H. Suda
Charles L. Reischel
Office of the Corporation Counsel
District Building, Room 305
1350 Pennsylvania Avenue N.W.
Washington, D.C. 20004
William Bradford Reynolds
Walter W. Barnett
David K. Flynn
Michael Carvin
Civil Rights Division
U.S. Department of Justice
10th & Pennsylvania, N.W.
Washington, D.C. 20530
George H. Cohen
Michael H. Gottesmann
Robert M. Weinberg
Jeremiah A. Collins
Bredhoff & Kaiser
1000 Connecticut Avenue N.W., Suite 1300
Washington, D.C. 20036
RICHARD T. SEYMOUR
Attorney for Amici Curiae