Watson v. Fort Worth Bank and Trust Brief Amicus Curiae in Support of the Petitioner

    No. 86-6139

I n  T h e

(Cmirt of % llnttrh
Octo ber  T e r m , 1987

Cl a r a  W a t s o n ,
Petitioner,v.

F ort  W o r th  B a n k  & T r u st ,
_________ Respondent.

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

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

AMICUS CURIAE IN SUPPORT OF THE PETITIONER

Conkad K. Harper 
Stuart J. Land 

Co-Chairmen 
Norman Redlich 

Trustee
W illiam L. Robinson 
Judith A. W inston 
Richard T. Seymour

Lawyers’ Committee for 
Civil Rights Under Law  

1400 “ Eye”  Street, N W .
Washington, D.C. 20005 
(202) 371-1212

Attorneys for Amicus Curiae 
Lawyers’ Committee for Civil Rights 

Under Law

September 14,1987 * Counsel of Record

John Townsend Rich *
Elizabeth Runyan Geise 
Nancy B. Stone

Shea & Gardner 
1800 Massachusetts Avenue, NW . 
Washington, D.C. 20036 
(202) 828-2000

W il s o n  - E p e s  P r in t in g  C o . ,  Inc. - 7 8 9 - 0 0 9 6  -  W a s h in g t o n , D .C . 2 0 0 0 J



TABLE OF CONTENTS
Page

INTEREST OF AMICUS C U R IA E ___________________  1

SUMMARY OF A R G U M E N T _________________________  2

A R G U M E N T ____________________________________________  3

I. The Issue Presented by This Case Is Not Con­
trolled by the Prior Opinions of This Court in 
McDonnell Douglas, Teamsters, Hazelwood, or 
Furnco ___________________________________________  3

II. Subjective Employment Practices Should Not
Be Exempt From Disparate Impact Analysis- 8

TABLE OF AUTHORITIES________________________  ii

A. The Language of Title VII and Case Law
Thereunder, the Administrative Regulations, 
and the Legislative History of the 1972 
Amendments Demonstrate That No Ex­
emption From Disparate Impact Analysis 
for Subjective Employment Practices Is 
Warranted____________________________________ _ 8

B. Relegating Plaintiffs Who Challenge Subjec­
tive Employment Practices to Disparate 
Treatment Analysis Would Defeat a Central 
Purpose of Title V I I _________________________  10

C. Allowing Disparate Impact Challenges to
Subjective Employment Practices Will Not 
Leave an Employer Without a Defense to a 
Disparate Impact Showing___________________  22

CONCLUSION __________________________________________  26



11

Cases:
TABLE OF AUTHORITIES

Page
Albemarle Paper Co. v. Moody, 422 U.S. 405

(1 9 7 5 )------------------------------------------------------------9 ,19 ,2 1 , 23
Association Against Discrimination in Employ­

ment, Inc. V. City of Bridgeport, 647 F.2d 256 
(2d Cir. 1981), cert, denied, 455 U.S. 988 
(1 9 8 2 ) -------------------------------------------------------------------  21

Atonio v. Wards Cove Packing Co., 810 F.2d 1477
(9th Cir. 1987) (en bane)_________________ 7 ,10 ,1 5 , 22

Baxter V. Savannah Sugar Refining Corp., 495 
F.2d 437 (5th Cir.), cert, denied, 419 U.S. 1033
(1974) ------------------------------------------------------------------  18

Bazemore v. Friday, 106 S. Ct. 3000 (1986) __1 4 ,15,18
Castaneda v. Partida, 430 U.S. 482 ( 1 9 7 7 )_______ 13
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) __ 23
Chandler V. Roudebush, 425 U.S. 840 (1976)____  2
Coe v. Yellow Freight System, 646 F.2d 444 (10th

Cir. 1 9 8 1 )________________________________________  19
Connecticut v. Teal, 457 U.S. 440 (1 9 8 2 )_________ passim
Cooper v. Federal Reserve Bank, 467 U S. 867

(1 9 8 4 ) -------------------------------------------------------------------  11,12
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345

(1983) ------------------------------------------------------------------ 2
Davis V. Califano, 613 F.2d 957 (D.C. Cir. 1979) __ 12
Diaz v. American Telephone & Telegraph, 752: F.2d

1356 (9th Cir. 198 5)_____________________________ 12
Dothard v. Rawlinson, 433 U.S. 321 (1977) _19, 20, 21, 23 
Franks v. Bowman Transportation. Co., 424 U S.

747 (1 9 7 6 )_______________________________________ 18
Furnco Construction Corp. v. Waters, 438 U S

567 (1 9 7 8 ) --------------------------------------------------------- 2, 4, 6, 7
Gilbert V. City of Little Rock, 722 F.2d 1390 (8th 

Cir. 1983), cert, denied, 466 U.S. 972 (1984) __ 20
Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985) _ 16,19,

20 , 22
Griggs V. Duke Power Co., 401 U.S. 424 (1971) ..passim, 
Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.

1 9 8 1 ) --------------------------------------------------------------------  15
Hazelwood School Dist. v. United States, 433 U.S,

299 (1 9 7 7 )---------------------------------------------------------- passim



Ill

Johnson V. Transportation Agency, 107 S. Ct. 1442
(1 9 8 7 )____________________________________________  13

Latinos Unidos de Chelsea en Aecion (Lucha) V. 
Secretary of Housing and Urban Development,
799 F.2d 774 (1st Cir. 1986) ____________________  16

Lewis V. Bloomsburg Mills, Inc., 773 F.2d 561
(4th Cir. 1 9 8 5 )__________________________________  2, 16

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1 9 7 3 ) ------------------------------------------------------------------- passim

Meritor Savings Bank V. Vinson, 106 S. Ct. 2399
(1986) ______________________________________________  9

Miles V. M.N.C. Corp,, 750 F.2d 867 (11th Cir.
1985) _____________________________________________  22

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)__ 23
New York Transit Authority v. Beazer, 440 U.S.

568 (1 97 9 )_______________________________________  23
O’Brien V. Sky Chefs, Inc., 670 F.2d 864 (9th Cir.

1982), overruled on other grotmds, Atonio V.
Wards Cove Packing Co., 810 F.2d 1477 (9th
Cir. 1987) (en banc)_____________________________  14

Paxton v. Union Nat’l Bank, 688 F.2d 552 (8th 
Cir. 1982), cert, denied, 460 U.S. 1083 (1983) __ 17

Payne V. Travenol Laboratories, Inc., 673 F.2d 798
(5th Cir.), cert, denied, 459 U.S. 1038 (1982)__  2

Rowe V. Cleveland Pneumatic Co., 690 F.2d 88
(6th Cir. 1982) _________________________________  22

Rowe V. General Motors Corp., 457 F.2d 348 (5th
Cir. 1 9 7 2 )________________________________________ 22, 24

Segar V. Smith, 738 F.2d 1249 (D.C. Cir. 1984), 
cert, denied sub nom. Meese V. Segar, 471 U.S.
1115 (1 9 8 5 )----------------------------------------------------------passim

Sledge V. J.P. Stevens & Co., 585 F.2d 625 (4th
Cir. 1978), cert, denied, 440 U.S. 981 (1979)_____2,21

Spurlock V. United Airlines, Inc., 475 F.2d 216
(10th Cir. 197 2)__________________________________ 23

Stewart V. General Motors Corp., 542 F.2d 445 
(7th Cir. 1976), cert, denied, 433 U.S. 919 
(1977) _____________________________________________ 21,24

TABLE OF AUTHORITIES*— Continued
Page



IV

Teamsters V. United States, 431 U.S. 324 (1977) -passim 
Texas Dep’t of Community Affairs V. Burdine, 450

U.S. 248 (1 9 8 1 )---------------------------------------------------  16,18
Trout v. Lehman, 702 F.2d 1094 (D.G. Cir. 1983), 

vacated on other grounds, 465 U.S. 1056
(1 9 8 4 ) -------------------------------------------------------------------  18

United States v. Bethlehem Steel Corp., 446 F.2d
652 ( 2d Cir. 1 9 7 1 )_______________________________  10

Vuyanich V. Republic Nat’l Bank of Dallas, 521 
F. Supp. 656 (N.D. Tex. 1981), vacated on other 
grounds, 723 F.2d 1195 (5th C'ir.), cert, denied,
469 U.S. 1073 (1984) ___________________________16, 17

Washington v. Davis, 426 U.S. 229 (1976)________ 8, 21

Statutes, Regulations and Rule:
Title VII of the Civil Rights Act of 1964, as 

amended:

§ 703(a) (2),  42 U.S.C. § 2000e-2 (a) (2)
(1 9 8 2 )-----------------------------------------------------------  4 , 5 , 8

§ 7 0 7 (d )-(e ), 42 U.S.C. § 2000e-6(d) to -(e)
(1 9 8 2 ) -----------------------------------------------------------  11

Uniform Guidelines on Employee Selection Proce­
dures :

29 C.F.R. § 1607.1 (A ) (1986)__________________  9
29 G.F.R. § 1607.3 (A) (1986)__________________ 9
29 C.F.R. § 1607.6(B) (1) & (2) (1986)._______ 24
29 C.F.R. § 1607.16 (q) (1986)_________________  9

Rules of the Supreme Court of the United States,
Rule 3 6 .2 _________________________________________  1

Other Authorities:
Adoption of Questions and Answers To Clarify 

and Provide a Common Interpretation of the 
Uniform Guidelines on Employee Selection Pro­
cedures, 44 Fed. Reg. 11996 (March 2, 1979) __ 24

D. Baldus & J. Cole, Statistical Proof of Discrimi­
nation (1980 & Supp. 1986)_____________________ 14,19

TABLE OF AUTHORITIES— Continued
Page



V

TABLE OF AUTHORITIES— Continued
Page

Bartholet, Application of Title VII to- Jobs in High 
Places, 95 Harv. L. Rev. 947 (1 98 2 )____________  16, 25

B. Schlei & P. Grossman, Employment Discrimina­
tion Law (1 9 8 3 )________________________________ 14, 23

C. Sullivan, M. Zimmer, R. Richards, Federal Stat­
utory Law of Employment Discrimination 
(1980) ____________________________________________  7



I n  T h e

wpnm  (final rtf llp> luttrit States
Octo ber  T e r m , 1987

No. 86-6139

Cl a r a  W a t s o n ,
Petitioner, v. ’

F ort W o rth  B a n k  & T ru st ,
_________ Respondent.

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

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

AMICUS CURIAE IN SUPPORT OF THE PETITIONER

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
submits this brief as amicus curiae, urging reversal.1

The Lawyers’ Committee is a nonprofit organization 
established in 1963 at the request of the President of the 
United States to involve leading members of the bar 
throughout the country in the national effort to insure 
civil rights to all Americans. It has represented and 
assisted other lawyers in representing numerous individ­
uals in administrative proceedings and lawsuits under

1 Pursuant to Rule 36.2, the Lawyers’ Committee has filed written 
consents of the parties to the submission of this brief as amicus 
curiae.



2

Title VII. E.g., Lewis v. Bloomsburg Mills, Inc., 773 
F.2d 561 (4th Cir. 1985); Payne v. Travenol Labora­
tories, Inc., 673 F.2d 798 (5th Cir. 1982); Sledge v. J.P. 
Stevens & Co., 585 F.2d 625 (4th Cir. 1978). The Law­
yers’ Committee has also represented parties and partici­
pated as an amicus in Title VII cases before this Court.
E.g., Chandler v. Roudebush, 425 U.S. 840 (1976); 
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983); 
Hazelwood School Disk v. United States, 433 U.S. 299 
(1977).

The question presented by this case— whether disparate 
impact analysis may be applied to employment practices 
involving subjective decisionmaking— is an important 
and recurring issue of Title VII law. This Court’s deci­
sion will undoubtedly have significant implications for 
present and future Title VII suits in which the Lawyers’ 
Committee participates. In addition, the Lawyers’ Com­
mittee’s experience in Title VII litigation may enable it 
to illuminate some of the issues presented by this case for 
this Court.

SUM M ARY OF ARGUMENT

The issue before this Court is a narrow one: whether 
the court of appeals was correct to preclude disparate 
impact analysis of the respondent bank’s promotion prac­
tices on the grounds that such practices were “ discretion­
ary,”  i.e., involving subjective decisionmaking. Contrary 
to the position of amicus United States, this issue is not 
controlled by this Court’s prior decisions in McDonnell 
Douglas Cory. v. Green, 411 U.S. 792 (1973), Teamsters 
v. United States, 431 U.S. 324 (1977), Hazelwood School 
Disk v. United States, 433 U.S. 299 (1977), and Furnco 
Construction Cory. v. Waters, 438 U.S. 567 (1978). 
While this Court declined to apply disparate impact 
analysis in each of those cases, it did so either because 
the only claims at issue were of intentional discrimina­
tion or because the evidence presented did not support a 
disparate impact claim. Thus, this case presents an issue 
not yet considered by this Court.



3

On the merits, the language of Title VII and the case 
law thereunder, the administrative regulations, and the 
legislative history of the 1972 amendments all demon­
strate that no exemption from disparate impact analysis 
for subjective employment practices is warranted. Fur­
thermore, the differences between a disparate treatment 
and disparate impact challenge to a subjective employ­
ment practice— which we explain in detail— show that to 
confine such challenges to disparate treatment analysis 
would defeat a central purpose of Title VII, i.e., to get 
rid of employment practices with an adverse impact on 
suspect groups that are not justified as “ job-related” or 
by “business necessity” , whatever the motivation behind 
the practices. Finally, contrary to the contention of 
amicus United States, allowing disparate impact chal­
lenges to subjective practices will not leave an employer 
without a defense to a disparate impact showing. A 
“ business necessity” or “ job-related” defense would still 
be possible, and certain subjective practices may be ca­
pable of validation.

ARGUMENT

I. The Issue Presented by This Case Is Not Controlled 
by the Prior Opinions of This Court in McDonnell 
Douglas, Teamsters, Hazelwood, or Furnco.

The evidence below established that respondent bank’s 
practice was to allow promotion decisions to rest in the 
discretion of “ a limited group of white department 
supervisors.”  Pet. App. 7a. The court of appeals held 
that the petitioner could not attempt to show that such 
a promotion policy was unlawfully discriminatory under 
disparate impact analysis because the promotion policy 
was “ discretionary.”  Pet. App. 8a. In Connecticut v. 
Teal, 457 U.S. 440, 445-446, 448 (1982), this Court noted 
that disparate impact analysis, first outlined in Griggs 
v. Duke Power Co., 401 U.S. 424 (1971), is based on



4

Section 703(a) (2) of Title VII,’2 and that Griggs and its 
progeny stand for the proposition that an employment 
practice which has a disparate impact on a suspect group 
and is not shown to be related to job performance is 
illegal, whether or not the employer had an “ invidious 
intent”  in adopting such a practice. Id. at 446. Dispar­
ate treatment analysis, by contrast, seeks to outlaw in­
tentional discrimination in employment, on either an 
individual or class-wide basis. Teamsters v. United 
States, 431 U.S. 324, 335-36 & n.15 (1977). This Court 
has emphasized that a given employment practice may 
be attacked under both disparate impact and disparate 
treatment theories. Id. at 336 n.15. Thus, the issue 
before this Court is whether the Fifth Circuit correctly 
precluded the plaintiff from proceeding under disparate 
impact theory on the grounds that the employment prac­
tice she challenged was “ discretionary.”

In its amicus brief on petition for writ of certiorari, 
the United States suggested that this Court has already 
decided this issue in four prior decisions, McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973), Team­
sters v. United States, 431 U.S. 324 (1977), Hazelwood 
School Dist. v. United States, 433 U.S. 299 (1977), and 
Furnco Construction Corp. v. Waters, 438 U.S.' 567 
(1978). According to the United States, all four cases 
involved attacks on “ subjective selection devices,”  and, 
in each case, this Court “ declined to extend the disparate

2 Section 703(a) (2 ), 42 U.S.C. :§ 2000e-2(a) (2) (1982), provides 
in the pertinent part as follows:

It shall be an unlawful employment practice for an em­
ployer—

“ (2) to limit, segregate, or classify his employees or appli­
cants for employment in any way which would deprive or tend 
to deprive any individual of employment opportunities or 
otherwise adversely affect his status as an employee, because 
of such individual’s race, color, religion, sex, or national 
origin.”



5

impact doctrine * * * [and] instead * * * required 
Title VII plaintiffs to prove discriminatory motivation.” 
Brief for the United States as Amicus Curiae in Support 
of Petition for Writ of Certiorari, at 11 (May 1987) 
(hereinafter “ U.S. Cert. Brief” ). Contrary to the 
United States’ position, however, examination of those 
four cases reveals that none decided the precise issue 
presented here.

In three of the four cases cited by the United States 
in its brief on certiorari, McDonnell Douglas, Teamsters, 
and Hazelwood, the only claims presented were of in­
tentional racial discrimination; no claims of disparate 
impact under § 703(a) (2) of Title VII were made. 
Thus, in McDonnell Douglas, plaintiff’s claim was that 
the employer defendant “ had refused to rehire him be­
cause of his race and persistent involvement in the civil 
rights movement, in violation of §§ 703 (a )(1 ) and 
704(a) [of Title V II].”  411 U.S. at 796. Similarly, 
Teamsters and Hazelwood both involved claims that the 
employer had engaged in a “ pattern or practice”  of in­
tentional discrimination. See Teamsters, supra, 431 U.S. 
at 335 ( “ The Government’s theory of discrimination 
was simply that the company, in violation of § 703(a) 
of Title VII, regularly and purposefully treated Negroes 
and Spanish-surnamed Americans less favorably than 
white persons.” ) ; Hazelwood, supra, 433 U.S. at 307 
n .ll  (as in Teamsters, the government’s claim was that 
the employer “  ‘regularly and purposefully treated Ne­
groes . . . less favorably than white persons’ ” ). Thus, 
given that the only claim asserted in each of the three 
cases was intentional discrimination, each was properly 
analyzed under disparate treatment theory, and dispar­
ate impact analysis was not implicated.

The United States cites language from McDonnell 
Douglas where this Court drew a distinction between the 
plaintiff’s claim of a discriminatory refusal to rehire 
him, and an exclusion from employment, as in Griggs,



6

“ on the basis of a testing device which overstates what 
is necessary for competent performance, or through some 
sweeping disqualification of all those with any past rec­
ord of unlawful behavior * * U.S. Cert. Brief at 12, 
citing 411 U.S. at 806. But the point of this distinction 
was not, as the U.S. suggests, to draw a line between 
“ objective” employment practices, to which a Griggs 
analysis applies, and “ subjective”  practices, to which 
Griggs is inapplicable. Instead, the Court’s point was 
that the Griggs disparate impact analysis is designed to 
challenge “ systemic results of employment practices.” 
Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984). 
Thus, because the plaintiff in McDonnell Douglas claimed 
only that he was the victim of an intentionally discrimi­
natory employment decision unique to him, rather than 
any sort of broader policy or system of the employer, 
disparate impact analysis did not apply.

In contrast to McDonnell Douglas, Teamsters and 
Hazelivood, the plaintiffs in Furnco sought to proceed 
under both disparate impact and disparate treatment 
analysis. 438 U.S. at 569. The case involved the hiring 
of bricklayers by a superintendent at a construction site. 
The challenged practice was the superintendent’s refusal 
to accept applications for bricklayer positions at the job 
site; instead, the superintendent “ hired only persons 
whom he knew to be experienced and competent * * * or 
persons who had been recommended to him as similarly 
skilled.”  438 U.S. at 570. Although this Court held that 
the “proper approach” for this claim was the disparate 
treatment model set forth in McDonnell Douglas, 438 
U.S. at 575, the reason for this conclusion was not that 
a “ subjective” employment practice was involved. The 
district court in Furnco had held that plaintiffs had not 
shown that Furnco’s policy of not hiring at the gate 
“had a disproportionate impact or effect on black brick­
layers,”  438 U.S. at 571, and this finding had not been 
found to be erroneous by the court of appeals. Id. at



7

570. Thus, when this Court concluded that plaintiffs’ 
claims were properly analyzed under the model set forth 
in McDonnell Douglas, it was simply affirming the dis­
trict court’s and court of appeals’ holdings that there 
was insufficient evidence to make out a disparate impact 
claim.3 In these circumstances, this Court did not have 
to reach the issue presented here, i.e., whether the type 
of “ discretionary” or “ subjective”  employment practice 
at issue in Furnco could he subject to disparate impact 
analysis.4

In sum, the narrow issue presented by this case—  
whether disparate impact analysis may be applied to 
subjective employment practices— has never been decided 
by this Court. And, as we discuss below, there is no 
basis for an exception to disparate impact analysis when 
the employment practice challenged involves subjective 
decisionmaking.

3 Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1484 (9th 
Cir. 1987) (en banc) (disparate impact analysis was inapplicable 
in Furnco because plaintiffs “failed to establish a prima facie case 
of disparate impact” ) ; C. Sullivan, M. Zimmer, R. Richards, Fed­
eral Statutory Law of Employment Discrimination § 1.6, at 67 
(1980) ( “ better construction”  of Furnco is that “disparate impact 
analysis was available but there was no showing of impact” ) .

4 The United States suggests that, like the plaintiffs in Furnco, 
petitioner’s evidence would not make out a prima facie case of 
disparate impact. See U.S. Cert. Brief at 20 n.16. Nevertheless, 
petitioner is in a different position before this Court than the 
plaintiffs in Furnco-, rather than evaluating her statistical evidence 
and holding that a prima facie case of disparate impact was not 
presented, the lower courts in this case simply precluded petitioner 
from proceeding on a disparate impact basis.



8

II. Subjective Employment Practices Should Not Be Ex­
empt From Disparate Impact Analysis.

A. The Language of Title VII and Case Law There­
under, the Administrative Regulations, and the 
Legislative History of the 1972 Amendments Dem­
onstrate That No Exemption From Disparate Im­
pact Analysis for Subjective Employment Practices 
Is Warranted.

Examination of the language of Title VII, the rele­
vant case law, the administrative regulations, and the 
legislative history of the 1972 amendments demonstrates 
that no exception to disparate impact analysis for em­
ployment practices involving subjective decisionmaking 
is justified.5

In Connecticut v. Teal, supra, 457 U.S. at 445-46, 448, 
this Court held that disparate impact analysis is founded 
upon Section 703(a) (2) of Title VII. That section pro­
hibits “ employment practice[s] ”  which “ limit, segregate, 
or classify”  employees or applicants because of “ race, 
color, religion, sex, or national origin.”  See p. 4, n.2, 
supra. Thus, as noted in Teal, supra, 457 U.S. at 448, 
“ [t]he statute speaks * * * in terms of limitations and 
classifications that would deprive any individual of em­
ployment opportunities.” (Emphasis in original.) This 
language does not suggest an exemption for employment 
“practices,”  “ limitations,”  or “ classifications”  which in­
volve or result from subjective decisionmaking. Further, 
this Court’s decisions have broadly stated that employ­
ment “ practices”  or “ procedures”  may be subject to 
disparate impact analysis, without carving out any ex­
ception for practices or procedures that involve sub­
jective decisionmaking. E.g., Griggs, supra, 401 U.S. at 
430 (disparate impact analysis reaches employment 
“practices, procedures, or tests” ) ; Washington v. Davis,

B For a more detailed analysis of these points, see the brief for 
amicus curiae NAACP Legal Defense and Educational Fund, Inc.



9

426 U.S. 229, 246-47 (1976) (disparate impact analysis 
available to challenge “hiring and promotion practices” ).

The administrative regulations under Title VII also 
provide support for the point that employment practices 
involving subjective decisionmaking should not be exempt 
from disparate impact analysis. Those regulations 
( “ Uniform Guidelines on Employee Selection Proce­
dures” ) define the selection procedures to which dispar­
ate impact analysis may be applied as ranging from the 
objective “ traditional paper and pencil tests” to the 
clearly subjective “ informal or casual interviews and 
unscored application forms.” 29 C.F.R. §§ 1607.3(A), 
1607.16 (q) (1986). Because these regulations were 
promulgated by the four federal agencies responsible for 
enforcing Title VII,6 this Court has noted that they are 
entitled to “ great deference”  as the enforcing agencies’ 
“ administrative interpretation of the Act.”  Griggs, 
supra, 401 U.S. at 433-34; Albemarle Paper Co. V. 
Moody, 422 U.S. 405, 431 (1975). See also Meritor Sav­
ings Bank v. Vinson, 106 S. Ct. 2399, 2405 (1986) 
(while not controlling, EEOC guidelines “ ‘constitute a 
body of experience and informed judgment to which 
courts and litigants may properly resort for guid­
ance’ ” ).

The legislative history of the 1972 amendments to 
Title VII similarly indicates that no exception to dis­
parate impact analysis for employment practices involv­
ing subjective decisionmaking is warranted. In Con­
necticut v. Teal, supra, 457 U.S. at 449, this Court noted 
that the legislative history to the 1972 amendments 
showed that Congress intended to remove for state and 
municipal employees the same sort of “ discriminatory 
barriers” to equal employment opportunity that the

6 These agencies are the Equal Employment Opportunity Com­
mission, the Civil Service Commission, the Department of Labor, 
and the Department o f Justice. 29 C.F.B. § 1607.1(A) (1986).



10

Griggs disparate impact analysis had removed for pri­
vate sector employees; examples of such “barriers”  iden­
tified by Congress included “promotions made on the 
basis of * * * ‘discriminatory supervisory ratings.’ ”  Id. 
at 449 n.10. Thus, Congress clearly anticipated that dis­
parate impact theory could be applied to such subjective 
employment practices. Moreover, the legislative history 
of the 1972 amendments shows that Congress meant, in 
areas where a contrary intention was not expressed, to 
endorse the existing Title VII case law. Id. at 447 n.8. 
And, at the time of the 1972 amendments, courts of ap­
peals had applied disparate impact analysis to employ­
ment practices involving subjective decisionmaking. See 
Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1482- 
83 (9th Cir. 1987) (en banc) (citing United States v. 
Bethlehem Steel Corp., 446 F.2d 652, 657-58 (2d Cir. 
1971)).

In sum, the language of Title VII, the case law, the 
administrative regulations, and the legislative history of 
the 1972 amendments all indicate that subjective em­
ployment practices should be subject to disparate impact 
analysis. Moreover, as we show below, creating an ex­
ception to disparate impact analysis for subjective em­
ployment practices would defeat a central purpose of 
Title VII.

B. Relegating Plaintiffs Who Challenge Subjective 
Employment Practices to Disparate Treatment 
Analysis Would Defeat a Central Purpose of Title 
VII.

If this Court affirms, plaintiffs challenging subjective 
employment practices as illegally discriminatory will be 
confined to disparate treatment analysis. When a plain­
tiff is challenging one employment decision unique to 
him, as in McDonnell Douglas Corp. v. Green, supra? 7

7 In McDonnell Douglas, the plaintiff challenged the employer’s 
failure to rehire him after his participation in various civil rights



11

confining that plaintiff to disparate treatment analysis 
would not make a difference. A  case that involves one 
unique employment decision is not the sort where a 
disparate impact claim could be made out. But where a 
plaintiff is challenging a pattern or a series of subjective 
employment decisions, relegating that plaintiff to dis­
parate treatment analysis would be significant. There 
are important differences between disparate treatment 
and disparate impact analysis in that situation. Be­
cause of these differences, confining attacks on a pattern 
or series of subjective employment decisions to disparate 
treatment analysis would defeat a central purpose of 
Title VII identified in Griggs— to get rid of employment 
practices with an adverse impact on suspect groups that 
are not justified by business necessity, whatever the 
motivation behind the practices.

The aim of disparate treatment analysis is to discover 
whether there has been intentional discrimination in vio­
lation of Title VII. “ Proof of discriminatory motive is 
critical * * *.”  Teamsters v. United States, supra, 431 
U.S. at 335 n.15. Given this ultimate issue, a disparate 
treatment challenge to a pattern or series of employ­
ment practices involving subjective decisionmaking would 
proceed as follows.8

demonstrations against the employer’s allegedly racist hiring pol­
icies. The plaintiff did not challenge any broad policy or practice 
of the employer concerning the rehiring of former employees, just 
one employment decision affecting him. 411 U.S. at 796.

8 Disparate treatment challenges to a pattern or series of em­
ployment decisions generally proceed as “pattern or practice”  ac­
tions. In a “pattern or practice”  case, the allegation is that the 
employer “ regularly and purposefully” discriminated, i.e., that “dis­
crimination was the company’s standard operating procedure1—the 
regular rather than the unusual practice.” Teamsters V. United, 
States, supra, 431 U.S. at 335-36; Cooper v. Federal Reserve Bank, 
467 U.S. 867, 876 (1984). While pattern or practice suits are 
brought either by the EEOC, pursuant to § 707(d )-(e )  of Title VII, 
42 U.S.C. §2000e-6(d) to -(e ) (1982), or as private class actions,



12

As an initial matter, a plaintiff making a disparate 
treatment claim must present a prima facie case of in­
tentional discrimination, i.e., the “plaintiff must carry the 
initial burden of offering evidence adequate to create an 
inference that an employment decision was based on a 
discriminatory criterion illegal under [Title V II].” 
Teamsters, supra, 431 U.S. at 358. In McDonnell Doug­
las, supra, 411 U.S. at 802, this Court outlined one for­
mulation of how a plaintiff could go about establishing a 
prima facie case of intentional discrimination.0 But this 
Court has stressed that the McDonnell Douglas formula­
tion is not the only means by which a plaintiff may es­
tablish a disparate treatment claim. Teamsters, supra, 
431 U.S. at 358 (decision in McDonnell Douglas “ did not 
purport to create an inflexible formulation” ). In a case 
where the plaintiff’s claim is that a pattern or series of 
employment decisions are discriminatory, plaintiff’s proof 
will often be statistical in nature. 9

Cooper v. Federal Reserve Bank, supra, 467 U.S. at 876 n.9, there 
is no reason why an individual plaintiff could not make out a case 
according to the “pattern or practice”  order of proof, so long as 
that plaintiff shows that he was personally affected by the discrimi­
natory policy. E.g., Davis V. Califano, 613 F.2d 957, 962-66 (D.C. 
Cir. 1979) (individual plaintiff established a prima facie case of 
discrimination through elements of a pattern or practice claim set 
forth in Teamsters) ; Diaz v. American Tel. & Tel., 752 F.2d 1356, 
1363 (9th Cir. 1985) (statistical evidence of a discriminatory pat­
tern in employer’s hiring or promotion practices can “create an 
inference of discriminatory intent” with respect to employment 
decision at issue in action brought by individual plaintiff).

9 Under the McDonnell Douglas formulation, a plaintiff may 
establish a prima facie case of intentional discrimination “by show­
ing (i) that he belongs to a racial minority; (ii) that he applied 
and was qualified for a job for which the employer was seeking 
applicants; (iii) that, despite his qualifications, he was rejected; 
and (iv) that, after his rejection, the position remained open and 
the employer continued to seek applicants from persons of com­
plainant’s qualifications.”  411 U.S. at 802.



13

Statistical proof that an employment practice is dis­
criminatory will generally involve a showing of a statis­
tical disparity between the race or sex of the group 
selected by the practice, and the race or sex of the group 
available for the job, such as the general work force, the 
qualified labor market, or actual applicants. Hazelwood 
School Dist. v. United States, supra, 433 U.S. at 308 
(proper comparison in teacher hiring discrimination case 
was between racial composition of teaching staff and 
racial composition of “ qualified public school teacher 
population in the relevant labor market” ) ;  Johnson v. 
Transportation Agency, 107 S. Ct. 1442, 1452 n.10 
(1987) (to make out a prima facie case of hiring dis­
crimination among skilled workers in Kaiser work force, 
plaintiff “would be required to compare the percentage of 
black skilled workers in the Kaiser work force with the 
percentage of black skilled craft workers in the area labor 
market” ). Statistical evidence of such a disparity is 
“ probative”  in a case alleging systemic discrimination 
“ because such imbalance is often a telltale sign of pur­
poseful discrimination.” Teamsters, supra, 431 U.S. at 
340 n.20. As this Court has noted, “ absent explanation, 
it is ordinarily to be expected that nondiscriminatory 
hiring practices will in time result in a work force more 
or less representative of the racial and ethnic composi­
tion of the population in the community from which em­
ployees are hired.” Id.

Although this Court has never defined exactly what 
degree of disparity must be shown to make out a prima 
facie case of intentional discrimination, it noted, in Hazel­
wood School Dist. v. United States, supra, that if the dif­
ference between the expected and observed number of 
blacks on the Hazelwood teaching staff were greater than 
two or three standard deviations, “ then the hypothesis 
that teachers were hired without regard to race would be 
suspect.”  433 U.S. at 309 n.14, citing Castaneda v. 
Partida, 430 U.S. 482, 496-97 & n.17 (1977). This makes



14

sense, since two standard deviations corresponds to sta­
tistical significance at the .05 level, which means in turn 
that “ there exists at most a one in 20 possibility that 
the observed result could have occurred by chance.” 
Segar v. Smith, supra, 738 F.2d at 1282-83 & n.28. 
Hazelwood stands for the point, therefore, that when a 
plaintiff has shown a disparity equal to two standard 
deviations or of statistical significance at the .05 level—  
and thus that there is only one chance in twenty that 
the disparity could be explained by chance— the plain­
tiff’s evidence is normally sufficient to make out a case 
of intentional discrimination. See Segar v. Smith, supra, 
738 F.2d at 1282-83 (several courts and the Department 
of Justice have taken the position that a disparity be­
tween the group available for a job and the group se­
lected which is statistically significant at the .05 level 
is sufficient to support an inference of intentional dis­
crimination) ; B. Schlei & P. Grossman, Employment 
Discrimination Law 1372 (1983) (same). See generally 
D. Baldus & J. Cole, Statistical Proof of Discrimination 
§§ 9.0-9.42 (1980 & Supp. 1986).

A plaintiff is not, of course, confined in a disparate 
treatment action to statistical evidence, and often the 
plaintiff s statistical case will be buttressed by other evi­
dence supporting the claim of intentional discrimination. 
Examples of such other evidence include anecdotal evi­
dence of discrimination, Teamsters, supra, 431 U.S. at 
339; Hazelwood, supra, 433 U.S. at 303; a history of 
discrimination by the employer and ineffectual attempts 
by the employer to eradicate such discrimination, Baze- 
more v. Friday, 106 S. Ct. 3000, 3009 (1986); Hazel­
wood, supra, 433 U.S. at 303, 309 n.15; or “ standardless 
and largely subjective [employment] procedures.” Hazel­
wood, supra, 433 U.S. at 303.10 There is no prescribed

10 Courts have repeatedly recognized that evidence of subjective 
employment practices can buttress statistical evidence of disparate 
treatment. E.g., O’Brien v. Sky Chefs, Inc., 670 F.2d 864, 867



15

formula concerning when such nonstatistical evidence is 
needed to make out a case of disparate treatment; the 
question in each case is simply whether the sum of evi­
dence presented by the plaintiff is sufficient to support 
the inference of intentional discrimination. Bazemore v. 
Friday, supra, 106 S. Ct. at 3009. See Segar v. Smith, 
supra, 738 F.2d at 1278 (“neither the presence nor the 
absence of specific anecdotal accounts alters the stand­
ard that a plaintiff’s initial case must meet;” issue is 
whether plaintiff’s “cumulative” evidence is “ sufficient to 
support an inference of discrimination” ).

Once the plaintiff has made out a prima facie case of 
disparate treatment, whether by statistical evidence alone 
or by a combination of statistical and nonstatistical evi­
dence, a burden of rebuttal shifts to the employer; this 
follows from the fact that if the employer is silent and 
the trier of fact believes the plaintiff’s evidence, the 
plaintiff must prevail.

The sort of rebuttal evidence an employer will offer to 
a strong statistical and nonstatistical showing of inten­
tional discrimination will typically include an attempt to 
discredit the nonstatistical evidence and to refute plain­
tiff’s claim that a statistical disparity exists, by attack­
ing the accuracy of plaintiff’s statistics or offering alter­
native statistical analyses. Alternatively, the employer 
may offer evidence explaining the disparity shown by 
plaintiff’s statistics, such as by “com [ing] forward with 
some additional job qualification * * * that the plaintiff 
class lacks, thus explaining the disparity.” Segar v.

(9th Cir. 1982), overruled on other grounds, Atonio v. Wards Cove 
Packing Co., 810 F.2d 1477 (9th Cir. 1987) (en banc) ( “ subjective 
decisionmaking strengthens an inference of discrimination from 
general statistical data” ) ; Harris V. Ford Motor Co., 651 F.2d 609, 
611 (8th Cir. 1981) ( “ Nonobjective evaluation systems may be 
probative of intentional discrimination, especially when discrimi­
natory patterns result, because such systems operate to conceal 
actual bias in decisionmaking.” )



16

Smith, supra, 738 F.2d at 1268; Teamsters, supra, 431 
U.S. at 360 (on rebuttal'to a pattern or practice show­
ing, employer will try to demonstrate that the plaintiff’s 
proof “ is either inaccurate or insignificant” ).11

Under the McDonnell Douglas formulation, an em­
ployer may rebut a plaintiff’s prima facie case simply by 
offering, through admissible evidence, a legitimate, non- 
discriminatory reason for the plaintiff’s non-selection. 
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 
802; Texas Dep’t of Community Affairs v. Burdine, 450 
U.S. 248, 255 (1981).12 This minimal rebuttal burden 
is tailored to the minimal evidence a plaintiff must offer 
to make out a prima facie case of intentional discrimina­
tion under McDonnell Douglas (see p. 12, note 9, supra) ; 
given plaintiff’s minimal showing, evidence by the de­
fendant of a legitimate, nondiscriminatory reason for 
plaintiff’s non-selection is sufficient to allow a factfinder 
to decline to draw the inference of intentional discrimi­
nation. See Burdine, supra, 450 U.S. at 254-55 ( “ The

11 If, in rebuttal to a statistical case of disparate1 treatment, the 
employer offers evidence that a specific employment practice, such 
as an experience requirement, explains the disparity, the case will 
be transformed into a disparate impact case, and the employer 
will bear the burden of proving that the employment practice 
it has identified is justified by business necessity. Segar v. Smith, 
supra, 738 F.2d at 1270, 1288; Latinos Unidos de Chelsea en 
Accion (Lucha) V. Secretary of Housing and TJrhan Development, 
799 F.2d 774, 787 n.22 (1st Cir. 1986); Lewis v. Bloomsburg Mills, 
773 F.2d 561, 571 n.16 (4th Cir. 1985); Griffin v. Carlin, 755 F.2d 
1516, 1526-28 (11th Cir. 1985); Vuyanich V. Republic Nat’l Bank 
of Dallas, 521 F. Supp. 656, 662 (N.D. Tex. 1981), vacated on 
other grounds, 723 F.2d 1195 (5th Cir. 1984). See generally, 
Bartholet, Application of Title VII to Jobs in High Places, 95 
Harv. L. Rev. 947, 1005-06 (1982).

12 Because the “legitimate, nondiscriminatory reason”  must be 
presented through “admissible” evidence, neither “ [a]n articula­
tion not. admitted into evidence,”  “an answer to the complaint,” 
nor “argument of counsel”  will be sufficient. Texas Dep’t of Com­
munity Affairs v. Burdine, supra, 450 U.S. at 255 n.9.



17

explanation provided must be legally sufficient to justify 
a judgment for the defendant.” )

By contrast, when the plaintiff has offered strong 
statistical evidence or a combination of strong statistical 
and nonstatistical evidence supporting the inference of 
intentional discrimination, an employer must do more 
than articulate a “ legitimate, nondiscriminatory” expla­
nation for plaintiff’s evidence to adequately rebut the 
plaintiff’s case. This follows from the fact that if  plain­
tiff has presented strong statistical and nonstatistical 
evidence of intentional discrimination, the mere articula­
tion of a nondiscriminatory explanation for that evidence 
— without more— will be insufficient to allow a factfinder 
to find for the employer. Thus, in Paxton v. Union Nati 
Bank, 688 F.2d 552, 566 (8th Cir. 1982), the court of 
appeals reversed the district court’s finding of no dis­
crimination in promotions, where the plaintiffs presented 
strong statistical and nonstatistical evidence of inten­
tional discrimination, and the employer’s “ vague asser­
tion that black employees as a whole within the bank 
were not as qualified as the white employees,” and “ ad 
hoc, contradictory and conflicting explanations” for in­
dividual promotion decisions “ [did] not even begin to ex­
plain the broad pattern of promotional discrimination”  
shown by plaintiffs. See also Teamsters, supra, 431 U.S. 
at 343 n.24 ( “ ‘affirmations of good faith in making in­
dividual selections are insufficient to dispel a prima facie 
case of systematic exclusion’ ” ) ;  Segar v. Smith, supra, 
738 F.2d at 1269-70 (“ in the class action pattern or prac­
tice case[,] the strength of evidence sufficient to meet 
[the employer’s] rebuttal burden will typically need to 
be much higher than the strength of the evidence suffi­
cient to rebut an individual plaintiff’s low-threshold Mc­
Donnell Douglas showing” ) ; Vuyanich v. Republic Nat’l 
Bank of Dallas, 521 F. Supp. 656, 663 (N.D. Tex. 1981), 
vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984) 
(same).



18

Once the defendant has offered rebuttal evidence, the 
plaintiff may attempt to discredit the rebuttal or may 
instead rely solely on his or her initial proofs. Burdine, 
supra, 450 U.S. at 256; Segar v. Smith, supra, 738 F.2d 
at 1270 n.15. At that point, the issue for the trier of 
fact is whether, “ in light of all the evidence presented 
by both the plaintiff and defendant * * * it is more likely 
than not that impermissible discrimination exists.”  Baze- 
more v. Friday, supra, 106 S. Ct. at 3009. If plaintiff’s 
statistical evidence, significant to two or three standard 
deviations, has not been undermined and defendant has 
not convincingly (and lawfully) justified the disparity, 
plaintiff should prevail.13

The evidence presented by a plaintiff in a disparate 
impact challenge to a subjective employment practice will 
be similar in many respects to that presented in a dis­
parate treatment challenge. The plaintiff will offer evi­
dence of a statistical disparity between the race or sex 
of the group selected by the practice, and the race or sex 
of the group available for the job, composed of the gen­

13 I f  a pattern or practice of discrimination is established, and 
a proceeding moves to the remedy stage, the burden of proof rules 
are different. As this Court held in Teamsters, supra, “proof of the 
pattern or practice [of discrimination] supports an inference that 
any particular employment decision, during the period in which 
the discriminatory policy was in force, was made in pursuit of that 
policy.”  Thus, at the remedial stage, plaintiffs “need only show 
that an alleged individual discriminatee unsuccessfully applied for 
a job and therefore was a potential victim of the proved discrimina­
tion. At that point, “ the burden then rests on the employer to 
demonstrate that the individual applicant was denied an employ­
ment opportunity for lawful reasons.”  431 U.S. at 362 (citing 
Franks v. Bowman Transp. Co., 424 U.S. 747, 773 n.32 (1976)). 
Moreover, many courts have held that the employer’s burden of 
proof at the remedy stage is by clear and convincing evidence. 
E.g., Trout v. Lehman, 702 F.2d 1094, 1107 (D.C. Cir. 1983), 
vacated on other grounds, 465 U.S. 1056 (1984) & cases cited; 
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-44 
(5th Cir. 1974).



19

eral workforce, the qualified labor market, or actual ap­
plicants for the job. E.g., Dothard v. Raivlinson, 433 
U.S. 321, 329-30 (1977) (height and weight require­
ments for prison guards have a disparate impact on fe­
males where standards would exclude from employment 
41.13% of the female population and only 1% of the male 
population).14 As in disparate treatment actions, this 
Court has never defined precisely what magnitude of dis­
parity is required to make out a case of disparate impact. 
The cases have referred to a showing that a requirement 
disqualifies a suspect group “ at a substantially higher 
rate” than white applicants, Griggs, supra, 401 U.S. at 
426; or that a given employment practice “ select [s] ap­
plicants for hire or promotion in a racial pattern signifi­
cantly different from that of the pool of applicants.” 
Albemarle Paper Co. v. Moody, supra, 422 U.S. at 425. 
It is possible that a disparity less than two standard 
deviations might suffice. See, e.g., D. Baldus & J. Cole, 
supra, § 9.221 (Supp. 1986).

Because employers frequently have selection procedures 
which combine many components, both subjective and ob­
jective, a plaintiff making a disparate impact challenge 
must be allowed to make a case— as plaintiffs may in dis­
parate treatment actions— by showing that the selection 
procedure as a whole has produced a statistical disparity 
between the group selected under the procedure and the 
group available for the job. The plaintiff should not also 
have to identify which specific selection component caused 
the adverse impact. E.g., Griffin v. Carlin, 755 F.2d 1516, 
1523-25 (11th Cir. 1985). See also Connecticut v. Teal, 
supra, 457 U.S. at 458 (Powell, J., dissenting) ( “ our dis­

14 Because disparate impact suits necessarily challenge a series 
of employment decisions, they often proceed as class actions. But 
individual plaintiffs may also bring disparate impact claims. E.g., 
Coe V. Yellow Freight System, 646 F.2d 444, 451 (10th Cir. 1981) 
(individual may bring a disparate impact claim so long as he 
satisfies requirement of standing by showing that he was affected 
by the practices alleged to have disparate impact).



20

parate-impact cases consistently have considered whether 
the result of an employer’s total selection process had an 
adverse impact upon the protected group” ) (emphasis in 
original). The data necessary for such an identification 
is often prohibitively expensive for plaintiffs to obtain 
and is more readily available to the employer. Moreover, 
limiting disparate impact analysis to cases in which the 
plaintiff is able to show that a particular component of a 
multi-component selection procedure caused adverse im­
pact would completely exempt the situation when two or 
more components interact together to produce a disparate 
impact. See Griffin v. Carlin, supra, 755 F.2d at 1516, 
citing Gilbert V. City of Little Rock, 722 F.2d 1390, 1397- 
98 (8th Cir. 1983).

On the employer’s side, the rebuttal evidence offered 
to a disparate impact showing will be similar in many 
respects to the rebuttal evidence offered in a disparate 
treatment action. Indeed, since plaintiff will often have 
presented the two types of analysis in the same case, em­
ployers must often deal with both at once. The rebuttal 
will likely involve an attack on plaintiff’s statistics, either 
directly or by alternative statistical analyses. At this 
point, however, disparate impact and disparate treatment 
theories diverge. In a disparate impact case, once the 
plaintiff has proven that a given employment practice has 
adverse impact, the burden of proof shifts to the em­
ployer to show that the practice is job-related or justi­
fied by business necessity. Griggs, supra, 401 U.S. at 
432 (in disparate impact cases, “ Congress has placed on 
the employer the burden of showing that any given re­
quirement [has] a manifest relationship to the employ­
ment in question.” ). Accord, Dothard V. Rawlinson, 
supra, 433 U.S. at 329; Connecticut v. Teal, supra, 457 
U.S. at 446-47. Thus, while an employer can defend 
against a disparate treatment challenge by rebutting 
plaintiff’s showing of intentional discrimination, an em­
ployer must do more to defeat a showing of adverse im­



21

pact; the employer must prove that the employment prac­
tice is job-related or justified by business necessity.15

This critical difference between disparate impact and 
disparate treatment analysis demonstrates that confin­
ing challenges to subjective employment practices to dis­
parate treatment theory would defeat a central purpose 
of Title VII. In Griggs, supra, 401 U.S. at 431, this 
Court held that Title VII was intended to proscribe not 
only “ overt discrimination,” “ but also practices that are 
fair in form, but discriminatory in operation.” Further, 
“ Congress directed the thrust of the Act to the conse~ 
quences of employment practices, not simply the motiva­
tion.” Id. at 432 (emphasis in original). Thus, Griggs 
held, Congress intended in Title VII that employment 
practices with bad consequences (an adverse impact on a 
suspect group) must be justified, by business necessity 
or as job-related, to be lawful. Id. at 431. See also 
Washington v. Davis, supra, 426 U.S. at 248 (under 
Griggs, an employment practice “ designed to serve neu­
tral ends is nevertheless invalid, absent compelling jus­

15 Even if the employer proves a business necessity defense, the 
plaintiff may still prevail if he shows “that other tests or selection 
devices, without a similarly undesirable * * * effect, would also 
serve the employer’s legitimate interest in ‘efficient and trust­
worthy workmanship.’ ”  Albemarle Paper Co. V. Moody, supra, 422 
U.S. at 425. Accord, Dothard v. Rawlinson, supra, 433 U.S. at 329.

As in disparate treatment actions (see p. 18, note 13, supra), 
once an unjustified disparate impact is established and the case 
moves to the remedy stage, individual plaintiffs need only show 
that they were affected by the employment policy with adverse 
impact, and the employer then bears the burden of proving that 
the plaintiff would have been denied the employment opportunity 
absent discrimination. E.g., Association Against Discrimination in 
Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 289 (2d Cir. 
1981); Sledge v. J.P. Stevens & Co., 585 F.2d 625, 637 (4th Cir. 
1978). Again, as in disparate treatment actions, courts have held 
that the employer’s burden of proof at the remedy stage is by 
clear and convincing evidence. E.g., Stewart v. General Motors 
Corp., 542 F.2d 445, 453 (7th Cir. 1976).



22

tification, if in practice it benefits or burdens one race 
more than another” ). Confining challenges to subjective 
employment practices to disparate treatment analysis 
would, therefore, defeat this central purpose of Title VII. 
Under disparate treatment analysis, subjective employ­
ment practices with an adverse impact on suspect groups 
would not need to be justified to be lawful, so long as 
they were not found to be intentionally discriminatory.16

C. Allowing Disparate Impact Challenges to Subjec­
tive Employment Practices Will Not Leave an Em­
ployer Without a Defense to a Disparate Impact 
Showing.

In its amicus brief on petition for certiorari, the United 
States suggests that an exemption from disparate im­
pact analysis for subjective employment practices is war­
ranted because such practices “may not be susceptible to 
validation or other such objective substantiation.”  U.S. 
Cert. Brief at 15. Thus, the argument goes, to apply dis­
parate impact analysis to employment practices involving 
subjectivity would leave an employer “with no possible 
defense”  to a disparate impact showing. Id. at 19-20.

16 It should also1 be noted that confining challenges to subjective 
employment practices to disparate treatment analysis would en­
courage employers to make most of their practices subjective. 
Courts have recognized that subjective practices can more easily 
mask discriminatory motivation than objective ones. Miles V. 
M.N.C. Corp., 750 F.2d 867, 871 (11th Cir. 1985) (subjective 
evaluations involving white supervisors provide a “ ready mecha­
nism” for racial discrimination). Accord, Rowe v. Cleveland 
Pneumatic Co., 690 F.2d 88, 93 (6th Cir. 1982); Rowe v. General 
Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972). See also p. 14, 
note 10, supra. Yet it could not have been the intent of Congress 
to encourage employers to use subjective devices in place of objec­
tive criteria. Atonio V. Wards Cove Packing Co., supra, 810 F.2d 
at 1485 ( “ It would subvert the purpose of Title VII to create an 
incentive to abandon efforts to validate objective criteria in favor 
of purely discretionary hiring methods.” ) Griffin v. Carlin, supra, 
755 F.2d at 1525 (sam e).



23

This Court has never held, however, that formal valida­
tion is the only defense to a showing that an employment 
practice has adverse impact. Instead, the cases have 
spoken of the need for the employer to show that the 
employment practice has a “manifest” or “ demonstrable” 
relationship to the job in question, Griggs, supra, 401 U.S. 
at 431, 432; Albemarle Paper Co. v. Moody, supra, 422 
U.S. at 425; or that it is “ necessary to safe and efficient 
job performance * * *.”  Dothard v. Rawlinson, supra, 433 
U.S. at 332 n.14. See also Griggs, supra, 401 U.S. at 
431 (the “ touchstone” of the defense to a disparate im­
pact claim is a showing of “ business necessity” ) ; Nash­
ville Gas Co. v. Satty, 434 U.S. 136, 143 (1977) (issue 
is whether “ company’s business necessitates the adoption” 
of employment practice at issue). Moreover, this Court 
has held that the defense may be made out on evidence 
other than a formal validation study. E.g., New York 
Transit Authority v. Beazer, 440 U.S. 568, 587 & n.31 
(1979) (even if employer’s rule excluding all users of 
narcotics and certain other drugs from employment had 
an adverse impact, rule would be sustained because em­
ployer has shown that rule serves employer’s “ legitimate 
employment goals of safety and efficiency” ). See gen­
erally B. Schlei & P. Grossman, supra, at 164 (courts 
have generally not required that education and other 
nonscored employment criteria be validated, allowing job­
relatedness to be shown by other evidence), citing, e.g., 
Spurlock v. United Airlines, Inc., 475 F.2d 216, 219 
(10th Cir. 1972) (upholding college degree requirement 
for airline pilots based on testimony by airline officials); 
Castro v. Beecher, 459 F.2d 725, 735 (1st Cir. 1972) 
(upholding high school diploma requirement for police 
officers based on Kerner Commission recommendation 
that all police officers have a high level of education).

Thus, an employer may be able to sustain a subjective 
employment practice with adverse impact that cannot 
feasibly be validated if, for example, the employer offers



24

evidence to show that continued use of the practice is 
essential to its business, and that it has instituted safe­
guards to ensure that discretion is focused on job-related 
variables and that subjectivity is not being used to mask 
intentional or unintentional discrimination. E.g., Stew­
art v. General Motors Corp., 542 F.2d 445, 450-51 (7th 
Cir. 1976) (business necessity defense to subjective pro­
motion process not made out where “ supervisory recom­
mendations play an important role”  in promotions, but 
foremen, who are all white, “have no objective way of 
rating the employees,”  and have no “written guidelines 
delineating the criteria” for which they are looking) ; 
Roive v. General Motors Corp., 457 F.2d 348, 358-59 
(5th Cir. 1972) (subjective promotion/transfer proce­
dures fail business necessity test where foremen’s recom­
mendations are the “ indispensable single most important 
factor,” but foremen receive “ no written instructions”  on 
criteria to be applied and hourly employees are not noti­
fied of jobs available or qualities necessary for promo­
tion) ,17

17 The Uniform Guidelines provide that in circumstances when 
an employment procedure has adverse impact and an employer “can­
not or need not utilize the validation techniques contemplated by 
these guidelines,” the employer should “ justify continued use of 
the procedure in accord with Federal law.”  29 C.F.R. § 1607.6 
(B) (1) & (2) (1986). Since the only method under “ Federal law” to 
justify an employment procedure with adverse impact is to show 
that the procedure is job-related or justified by business necessity, 
the Guidelines clearly anticipate that those defenses may be made 
out in some circumstances without formal validation. This inter­
pretation of the Guidelines is confirmed in the EEOC’s questions 
and answers designed to clarify the Guidelines. 44 Fed. Reg. 
11996 (March 2, 1979). There, in response to a question concern­
ing whether a selection procedure could be justified without valida­
tion, the EEOC stated that, under Griggs, a “ selection procedure 
could be used if there was a business necessity for its continued 
use,”  and that “ therefore, the Federal agencies will consider evi­
dence that a selection procedure is necessary for the safe and effi­
cient operation of a business * * *.”  Id. at 12002.



25

Furthermore, there is no apparent reason why certain 
subjective criteria cannot be validated in the same man­
ner as objective criteria. As Professor Bartholet points 
out:

“ The validity of a written test is traditionally es­
tablished by correlating the scores of candidates who 
passed the test and are on the job with indicia of 
their job performance. A subjective assessment proc­
ess, like a written test, can be scored even if only for 
the purpose of conducting a validity study. Alterna­
tively, an employer can establish the validity of sub­
jective processes by proving that the behavior assessed 
by the process represents a fair sample of the be­
havior required in the job at issue, or that the sub­
jective process measures the knowledge, skills or abil­
ities that are the necessary prerequisites to the job.

“ The industrial psychology literature * * * con­
tains numerous descriptions of validity studies of the 
most commonly used subjective processes, such as 
interviews, the evaluation of biographical data, and 
assessment center techniques.”  (Citations omitted.)

Bartholet, Application of Title VII to Jobs in High 
Places, 95 Harv. L. Rev. 947, 987-88 (1982). It may be 
that validation techniques developed for certain objective 
employment practices, such as scored tests, will have to 
be modified, or new validation techniques developed for 
subjective practices such as interviews. Id. at 989, 985 
n.133. But these issues are not before the Court at this 
time. The fact that validation of some subjective employ­
ment practices may, in certain cases, be difficult or call 
for new validation techniques, does not justify the crea­
tion by this Court of an across-the-board exemption from 
disparate impact analysis for all employment practices 
involving subjective decisionmaking.



26

CONCLUSION

If an employer need make no business-related defense 
of his subjective or discretionary employment practices, 
such practices may have a substantially adverse impact 
on suspect groups for no good reason whatsoever. Title 
VII should not be construed to permit such a result, and 
thus the disparate impact analysis of Griggs should not 
be restricted in ways that undercut a central purpose of 
Title VII. For the reasons stated above and in the Brief 
for the Petitioner, amicus Lawyers’ Committee urges the 
Court to reverse the decision below.

Respectfully submitted,

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen 
N orman Redlich 

Trustee
W illiam L. Robinson 
Judith A. W inston 
Richard T. Seymour

John Townsend Rich *
Elizabeth Runyan  Geise 
Nancy B. Stone

Shea & Gardner 
1800 Massachusetts Avenue, N.W. 
Washington, D.C. 20036 
(202) 828-2000

Lawyers’ Committee for 
Civil Rights Under Law  

1400 “ Eye”  Street, N.W.
Washington, D.C. 20005 
(202) 371-1212

Attorneys for Amicus Curiae 
Lawyers’ Committee for Civil Rights 

Under Law
September 14,1987 * Counsel of Record