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On Appeal.from the United States District Court 
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Honorable Justin L. Quackenbush

BRIEF AMICUS CURIAE OF THE 
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IRNANDEZ,



UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Nos. 83-4263 
84-3527

FRANK ATONIO, EUGENE BACLIG, RANDY DEL FIERRO, 
CLERKE KIDO, LESTER KURAMOTO, ALAN LEW, 

CURTIS LEW, ROBERT MORRIS, JOAQUIN ARRUIZA, 
BARBARA VIERNES, as administratrix of the 

estate of Gene Allen Viernes, and all others similarly situated,
Plaintif f s-AppeHants ,

vs.
WARDS COVE PACKING COMPANY, INC., CASTLE & COOKE, INC., 

and COLUMBIA WARDS FISHERIES,
Defendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Washington at Seattle

Honorable Justin L. Quackenbush

BRIEF AMICUS CURIAE OF THE 
CENTER FOR LAW IN THE PUBLIC INTEREST,

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUNDAND HUNT & COCHRAN-BOND

A. THOMAS HUNT 
HUNT & COCHRAN-BOND 
617 S. Olive St., #1100 Los Angeles, CA 90014 
213/623-8000
ANTONIA HERNANDEZ 
THERESA FAY BUSTILLOS 
MEXICAN-AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND 634 S. Spring St., 11th Fir. 
Los Angeles, CA 90034 
213/629-2512

BILL LANN LEE 
CENTER FOR LAW IN THE 

PUBLIC INTEREST 
10951 W. Pico Blvd., 3d Floor 
Los Angeles, CA 90064 
213/470-3000
JULIUS LEVONNE CHAMBERS 
RONALD L. ELLIS 
NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.
99 Hudson Street, 16th Fir. 
New York, NY 10013 
212/219-1900

Counsel for Amici Curiae



UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Nos. 83-4263 
84-3527

FRANK ATONIO, EUGENE BACLIG, RANDY DEL FIERRO, 
CLERKE KIDO, LESTER KURAMOTO, ALAN LEW,

CURTIS LEW, ROBERT MORRIS, JOAQUIN ARRUIZA, 
BARBARA VIERNES, as administratrix of the 

estate of Gene Allen Viernes, and all others 
similarly situated,

Plaintiffs-Appellants,
vs.

WARDS COVE PACKING COMPANY, INC., CASTLE & COOKE, INC., 
and COLUMBIA WARDS FISHERIES,

Defendants-Appellees.

BRIEF AMICUS CURIAE OF THE 
CENTER FOR LAW IN THE PUBLIC INTEREST,

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
THE MEXICAN-AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND,AND HUNT & COCHRAN-BOND

Amici submit this brief in support of the position of 
plaintiff s-appe Hants.
/
/
/
/
/
/
/
/

1



TABLE OF CONTENTS

Table of Authorities ....................................  ii
I. INTEREST OF AMICI ..................................  2
II. INTRODUCTION .......................................  3
III. THE DISPARATE IMPACT ANALYSIS IS PROPERLYAPPLIED TO SUBJECTIVELY EVALUATED EMPLOYMENT

CRITERIA ...........................................  4
A. Statutory Language, As Authoritatively 

Construed by Supreme Court Decisions,
Plainly Permits Application of the 
Disparate Impact Analysis to Subjective
Employment Criteria ......................... 5

B. Legislative History Sanctions Application
of the Disparate Impact Analysis to Subjective 
Employment Criteria .........................  8

C. Application of the Disparate Impact Analysis
to Subjective Employment Criteria Furthers the 
Primary Prophylactic Purpose of Title VII .......  12

IV. CONCLUSION .........................................  18

i



TABLE OF AUTHORITIES
Cases

Albermarle Paper Co. v. Moody, 422 U.S. 495 (1975)
Connecticut v. Teal. 457 U.S. 440 (1982) ...........
Dothard v. Rawlinson. 433 U.S. 321 (1977)
Gilbert v. City of Little Rock, Ark.,

722 F.2d 1390 (8th Cir. 1983) .................
—tiffin Carlin, 755 F. 2d 1516 (11th Cir. 1985)
Griggs v. Duke Power Company,

401 U.S. 424 (1971) ......................
International Bro. of Teamsters v. United States431 U.S. 324 (1977)"...................  *m[ _
Johnson v. Uncle Ben's, Inc.,

628 F.2d 419 (5th Cir. 1980) ..................
Moore v. Hughes Helicopter Corp.,

708 F.2d 475 (9th Cir. 1983) .........
Nanty v, Barrows Co.,

660 F.2d 1327 (9th Cir. 1981)
New York Transit Authority v. Beazer

440 U.S. 568 (1979) ..........[..........
Peters v. Lieuallen, 746 F.2d 1390 (9th Cir. 1984)
Pettway v. American Cast Iron Pipe Co.,

494 F.2d 211 (5th Cir. 1974) ___[.....
Rowe v. General Motors Corp.,

457 F.2d 348 (5th Cir. 1972)
_Segar v. Smith. 738 F.2d 1249 (D.C. Cir. 1984)
United States v. Dillon Supply Co.,

429 F.2d 800 (4th Cir. 1970) ........
United Steelworkers of America v. Weber, 443 U.S. 193 (1979) ...... .'......
Wang v. Hoffman, 694 F.2d 1146 (1982) ..
Wil!jams v. Colorado Springs, Col. Sch. Dish.. 

641 F.2d 835, 838 (10th Cir. 1981) 77777.



Statutes and Regulations
42 U.S.C. § 2000e ..................................... 3
42 U.S.C. § 2000e-2 (a) (2)   passim42 U.S.C. § 2000e-16(a)   9

Other Authorities
Uniform Guidelines on Employee Selection Procedures

29 C.F.R. § 1607 ................................. 7
H.R. Rep. No. 92-238 (1971), U.S. Code Cong.& Admin. News 1972 ...............................  9
S. Rep. No. 92-415 (1971) ............................  9
118 Cong. Rec. 7166 (1972) ............................  9

U.S. Commission on Civil Rights,
For the People . . .  By All the People —
A Report on Equal Opportunity in State and
Local Government Employment (1969) ...............  10

iii



I
INTEREST OF AMICI

Amicus Center for Law in the Public Interest is a non­
profit corporation, located in Los Angeles, California, that for 
many years has prosecuted various civil rights and public 
interest lawsuits, including employment discrimination class 
actions on behalf of women and minority persons. Amicus NAACP 
Legal Defense and Educational Fund, Inc. is a New York nonprofit 
organization that has prosecuted numerous civil rights cases on 
behalf of black persons seeking vindication of their civil 
rights, including Griggs v. Duke Power Company, 401 U.S. 424 
(1971). Amicus Mexican American Legal Defense and Educational 
Fund, headquartered in San Francisco, California, is a public 
interest law firm that, inter alia, prosecutes lawsuits on 
behalf of Latinos throughout the nation who are subject to 
discrimination in employment, public education, voting rights 
and other areas of public life. Amicus Hunt & Cochran-Bond is a 
Los Angeles law firm that brings class action suits on behalf of 
women and minority persons who seek to enforce their civil 
rights in employment, housing and other areas.

Amici are interested in the legal question before the 
Court, i.e., "the appropriateness of disparate impact analysis 
in this case, particularly whether it is properly applied to 
subjectively evaluated employment criteria," Order of Decem­
ber 3, 1985, because they represent classes of minority and 
women employees and applicants for employment in numerous cases.

2



In many of these cases amici have challenged subjective selec­
tion procedures similar to those in issue here as discriminatory 
because they "operate as 'built-in headwinds' for minority 
groups [and women] . . . unrelated to measuring job capability," 
and are "artificial, arbitrary, and unnecessary barriers to 
employment . . . [that] operate invidiously to discriminate."
Gr iggs, 401 U.S. at 432. Amici have substantial experience 
litigating this issue and believe that their expertise may be of 
assistance to the Court.

II
INTRODUCTION

Plaintiffs should be able to use both the disparate 
treatment and disparate impact analyses to assess whether 
subjective criteria are discriminatory because the object of 
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
§ 2000e ("Title VII") is not only to ferret out "overt 
discrimination" —  what the disparate treatment inquiry does —  
but also to proscribe "practices that are fair in form, but 
discriminatory in operation," Griggs, 401 U.S. at 431 —  what 
the disparate impact analysis does. Application of the 
disparate impact analysis to subjective selection criteria, as 
we argue below, is fully consistent with the terms of Title 
VII's prohibition of employment discrimination, explicit 
legislative history, and the primary prophylactic purpose of 
Title VII. Analyzing subjective selection criteria under both

3



thatthe disparate impact and disparate treatment models assures 
Title VII will be fully effectuated and enforced.—^

III
THE DISPARATE IMPACT ANALYSIS IS 
PROPERLY APPLIED TO SUBJECTIVELY 
EVALUATED EMPLOYMENT CRITERIA.

Courts differ on the appropriateness of applying the 
disparate impact model to subjectively evaluated selection cri­
teria. We believe that the courts that have declined to apply 
the impact analysis have erred principally because they have 
ignored the terms of Title VII, its legislative history and its 
purpose.
/
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/

1/ In our view, the trial court and the panel committed
legal error in three respects. First, the courts declined to apply the disparate impact analysis to subjective selection 
criteria. Second, the instant record does not support the 
conclusion that certain practices analyzed under the disparate 
impact standard were justified by business necessity. Third, 
the courts mischaracterized as subjective criteria such policies 
or practices as separate hiring channels, word of mouth 
recruitment, and rehiring preferences given to previously 
employed persons, which are usually assessed under disparate 
impact analysis as discrete practices. We address only the 
first error. We refer the Court to the discussion of the latter 
two errors in the briefs filed by plaintiffs-appellants.

4



A. Statutory Language, As Authoritatively Construed by 
Supreme Court Decisions, Plainly Permits Application 
of the Disparate Impact Analysis to Subjective 
Employment Criteria.
Section 703(a)(2) of Title VII, 42 U.S.C. 5 2000e- 

2 (a)(2), provides in expansive terms, that:
It shall be an unlawful employment 

practice for an employer —
★ ★ ★

(2) to limit, segregate, or classify 
his employees or applicants for employment 
in any way which would deprive or tend to 
deprive any individual of employment oppor­
tunities or otherwise adversely affect his 
status as an employee, because of such 
individual's race, color, religion, sex, or 
national origin.

Gr iggs, 402 U.S. at 431, authoritatively construed § 703(a)(2) 
as broadly proscribing "not only overt discrimination but also 
practices that are fair in form, but discriminatory in opera­
tion," and as authorizing the disparate impact analysis.

The objective of Congress in the 
enactment of Title VII is plain from the 
language of the statute. It was to achieve 
equality of employment opportunities and 
remove barriers that have operated in the 
past to favor an identifiable group of white 
employees over other employees.

401 U.S. at 429-30.
As the Court explained in Connecticut v. Teal, 457 

U.S. 440, 448 (1982):
The statute speaks, not in terms of jobs and 
promotions, but in terms of limitations and 
classifications that would deprive any indi­
vidual of employment opportunities. A 
disparate-impact claim reflects the language 
of § 703(a)(2) and Congress' basic objec­
tives in enacting that statute: "to achieve

5



equality of employment opportunities and 
remove barriers that have operated in the 
past to favor an identifiable group of white 
employees over other employees." 401 U.S., 
at 429-430 (emphasis added). When an employer uses a nonjob-related barrier in 
order to deny a minority or woman applicant 
employment or promotion, and that barrier 
has a significant adverse effect on minori­
ties or women, then the applicant has been 
deprived of an employment opportunity 
"because of . . . race, color, religion,
sex, or national origin." In other words,
§ 703(a)(2) prohibits discriminatory "arti­
ficial, arbitrary, and unnecessary barriers 
to employment," 401 U.S., at 431, that "limit . . .  or classify . . . applicants 
for employment . . .  in any way which would 
deprive or tend to deprive any individual of 
employment opportunities." (Emphasis 
added.)

Relying on § 703(a)(2), Griggs expli­
citly focused on employment "practices, pro­
cedures, or tests," 401 U.S., at 430, that 
deny equal employment "opportunity," u3. , at 
431. We concluded that Title VII prohibits 
"procedures or testing mechanisms that oper­
ate as 'built-in headwinds' for minority 
groups." _Id. , at 432. We found that 
Congress' primary purpose was the prophylac­
tic one of achieving equality of employment 
"opportunities" and removing "barriers" to 
such equality. Ld., at 429-430.

(Emphasis in original; footnotes omitted.)
Section 703 (a)(2), as construed by Gr iggs and Teal, is 

a broad prohibition of all practices, procedures or tests that 
deny equal employment opportunity, subjective or non-subjective, 
without exception. While both Griggs and Teal involved employ­
ment tests, nothing on the face of § 703(a)(2) purports to limit 
its broad terms solely to employment tests. Indeed, Griggs 
applied 3 703(a)(2) to bar a high school graduation requirement 
as well as a test, 401 U.S. at 431. Minimum height and weight 
requirements were found to be arbitrary barriers to equal

6



employment opportunity for women in Dothard v. Rawlinson, 433 
U.S. 321 (1977), and nepotistic preferences were cited as a 
practice that limited minority employment opportunity in 
International Bro. of Teamsters v. United States, 431 U.S. 324, 
349 n.32 (1977). Nothing in Griggs, Teal, or the other Supreme 
Court cases purports to restrict § 703(a)(2) in any way. The 
rule is that: "'[a] prima facie violation of [§ 703(a)(2)] may 
be established by statistical evidence showing that an 
employment practice has the effect of denying members of one 
race equal access to employment opportunities.1" Teal, 457 U.S. 
at 450 (original emphasis) (quoting New York Transit Authority 
v. Beazer, 440 U.S. 568, 584 (1979)). While neither Gr iggs,
Teal nor other cases directly addressed subjective selection 
criteria, nothing in their liberal reading of § 703(a)(2) 
suggest that such criteria are exempt from the broad proscrip­
tion of employment practices that deny equal employment 
opportunity.

Moreover, in their interpretive regulations, all four 
federal agencies with Title VII enforcement responsibilities —  
the Equal Employment Opportunity Commission, the Office of 
Personnel Management (formerly the Civil Service Commission) , 
the Department of Justice and the Department of Labor —  have 
uniformly construed § 703(a)(2) as requiring disparate impact 
analysis of all selection procedures. Uniform Guidelines on 
Employee Selection Procedures, 29 C.F.R. 1607. The Uniform 
Guidelines specifically include subjective selection criteria, 
defining selection procedures as "[a]ny measure, combination of 
measures, or procedure used as a basis for any employment

7



decision," including "informal or casual interviews and unscored 
application forms." 29 C.F.R. § 1607.16 (emphasis added). 
Indeed, in performing technical validation studies, the Uniform 
Guidelines warn that "[i]n view of the possibility of bias in 
subjective evaluations, supervisory rating techniques and 
instructions tc raters should be carefully developed." 29 
C.F.R. 1607.14B(2). See Albermarle Paper Co. v. Moody, 422 U.S. 
405, 432-33 (1975) (validation study criticized because test 
scores were improperly compared to subjective supervisorial 
ranking which do not indicate "focused and stable" criteria of 
job performance).

"The administrative interpretation of the Act by the 
enforcing agenc[ies] is entitled to great deference." Gr iggs,
401 U.S. at 433-34. Since statutory language, see supra, and 
legislative history, see infra, support the administrative 
construction, "this affords good reason to treat the guidelines 
as expressing the will of Congress." id. at 434.

B* Legislative History Sanctions Application of the
Disparate Impact Analysis to Subjective Employment 
Criteria.
The sparse legislative history of Title VII, as 

originally enacted in 1964, shows that Congress generally 
intended to achieve equal employment opportunity and to remove 
barriers that had favored whites in the past. See United 
Steelworkers of America v. Weber. 443 U.S. 193, 202-04 (1979). 
However, it is the legislative history of the 1972 amendments to 
Title VII that is most illuminating. Although 3 703 (a) (2) was

8



not amended in 1972, § 703(a)(2) was extended to state and local 
employees by deleting the original exemption for state and local 
employees, and extended to federal employees by the addition of 
a broad provision that "[a]11 personnel actions affecting 
[federal employees] shall be made free from any discrimination 
based on race, color, religion, sex or national origin."
Sec. 717, 42 U.S.C. § 2000e-16(a) (emphasis added). In the 
course of this legislative history, Congress explicitly 
sanctioned the Supreme Court's interpretation of § 703(a)(2) in 
Griggs and indicated that disparate impact analysis was 
applicable to a broad set of employment practices, including 
subjective selection criteria.

Gr iggs, which was decided during consideration of the 
amendments, and the disparate impact model were cited with 
approval by both the House and Senate reports. Both reports 
noted that:

Employment discrimination, as we know 
today, is a . . . complex and pervasive
phenomenon. Experts familiar with the 
subject now generally describe the problem 
in terms of 'systems' and 'effects' rather 
than simply intentional wrongs.

H.R. Rep. No. 92-238, p. 8 (1971), U.S. Code Cong. & Admin. News 
1972, p. 2137; S. Rep. No. 92-415, p. 5 (1971). See Teal, 457 
U.S. at 447 n.8.

In addition, the section-by-section analysis of the 
1972 amendments accompanying the Conference Report submitted to 
both Houses explicitly stated that in any area not addressed by 
the amendments or in any areas where a specific contrary 
intention was not indicated, present case law was intended to

9



govern. 118 Cong. Rec. 7166, 7564 (1972). Contemporary case 
law included not only Griggs, but several court of appeal 
decisions that had applied the disparate impact analysis to 
subjective selection criteria. E.g. , United States v. Dillon 
Supply Co., 429 F .2d 800, 802, 804 (4th Cir. 1970) (court held 
that "[p]ractices, policies or patterns, even though neutral on 
their face, may operate to segregate and classify on the basis 
of race at least as effectively as overt racial discrimination" 
in a case in which "[c]oupled with the statistical data, the 
government offered proof of a decentralized system of hiring and 
assignment which vested broad authority on the supervisors of 
largely segregated departments and which had no uniform or 
objective standards for hiring or assignment"); Rowe v. General 
Motors Corp., 457 F .2d 348, 354-55, 358-59 (5th Cir. 1972)
(Griggs applied to invalidate subjective promotion/transfer 
procedures) .

In discussing the need for extending Title VII to 
state and local government employees, the Congressional reports 
voiced specific concern about widespread use by state and local 
governmental agencies of "invalid selection techniques and 
stereotyped misconceptions by supervisors regarding minority 
group capabilities" that had a discriminatory impact. S. Rep. 
No. 92-415, at p. 10; H.R. Rep. No. 92-238, at p. 17; see Teal, 
457 U.S. at 449. A report of the U.S. Commission on Civil 
Rights, For the People . . .  By All the People —  A Report on 
Equal Opportunity in State and Local Government Employment 
(1969) was relied upon by both Congressional reports and put in 
the Congressional Record by Senator Williams, the principal

10



sponsor of the Senate bill. See Teal, 457 U.S. at 449 n.10.
The Commission report, at p. 119, specifically concluded that 
among the serious "barriers to equal opportunity" for state and 
municipal employees were "recruitment and selection devices 
which are arbitrary, unrelated to job performance, and result in 
unequal treatment of minorities," and promotions made on the 
basis of "criteria unrelated to job performance and on 
discriminatory supervisory ratings."

In discussing the extension of Title VII to federal 
employees, the Congressional reports specifically criticized the 
Civil Service Commission for its lack of "expertise in recog­
nizing and isolating the various forms of discrimination which 
exist in the system it administers."

The Civil Service Commission should not 
assume that employment discrimination is 
solely a problem of malicious intent on the 
part of individuals. It apparently has not 
recognized that the general rules and pro­
cedures it has promulgated may in themselves 
constitute systemic barriers to minorities and women. Civil Service selection and 
promotion requirements are replete with 
artificial requirements that place a premium 
on "paper" credentials. Similar require­
ments in the private sectors of business 
have often proven of questionable value in 
predicting job performance and have resulted 
in perpetuating existing patterns of dis­
crimination (see e.g. Griggs v. Duke Power Co. . . .).

S. Rep. No. 92-415, at p. 14; see H.R. Rep. No. 92-238, at p. 
24. In those areas "where discrimination is institutional," the 
Civil Service Commission was expected "to undertake a thorough 
re-examination of its entire testing and qualification program 
to ensure that the standards enunciated in the Griggs case are 
fully met." S. Rep. No. 92-415, at pp. 14-15 (emphasis added).

11



agen-Subsequent litigation against state and federal 
cies under the 1972 amendments has confirmed that subjective 
selection criteria were included in the "invalid selection 
techniques" that Congress sought to eradicate, e .g., Williams 
Yj1--Colorado Springs, Col. Sch. Dist., 641 F.2d 835, 838, 842 
(10th Cir. 1981) (subjective school district teacher hiring 
standards); Wang v. Hoffman, 694 F.2d 1146, 1148 (1982) (federal 
agency subjective qualification standards); Gilbert v. City of 
Little Rock, Ark., 722 F . 2d 1390, 1398 (8th Cir. 1983) (subjec­
tive police promotional interview and supervisory appraisal and 
rating criteria); Griffin v. Carlin, 755 F.2d 1516, 1526-28
(11th Cir. 1985) (postal service supervisory evaluation with 
subjective elements).

C* Application of the Disparate Impact Analysis to
Subjective Employment Criteria Furthers the Primary 
Prophylactic Purpose of Title VII.
Grj^gs, 401 U.S. at 431, explains that the purpose of 

§ 703(a)(2) is to eliminate policies or practices that are 
discriminatory in operation: "If an employment practice that 
operates to exclude [minorities or women] cannot be shown to be 
related to job performance, the practice is prohibited." The 
disparate impact model is the analytical tool that is precisely 
designed to further that purpose. If plaintiffs are barred from 
using it for an entire class of selection devices, subjectively 
evaluated criteria, then the primary prophylactic purpose of 
§ 703(a)(2) of eliminating "artificial, arbitrary, and 
unnecessary barriers to employment," Griggs, 401 U.S. at 431,

12



will be frustrated. Plaintiffs would be disabled from 
challenging subjective criteria by demonstrating unjustified 
significant adverse impact, and relegated to proving illicit 
purpose or invidious intent under the disparate treatment model.

Nothing in the language, legislative history or 
prophylactic purpose of Title VII remotely suggests that 
subjectively evaluated selection criteria are exempt from the 
coverage of § 703(a)(2). Indeed, every indication of 
Congressional will demonstrates otherwise. Congress clearly 
wished to proscribe invalid selection techniques, including 
"discriminatory supervisory ratings" and other procedures with 
subjective criteria, that "in any way . . .  would deprive or 
tend to deprive any individual of employment opportunities or 
otherwise affect his status as an employee," on the basis of 
race, color, religion, sex or national origin. § 703(a)(2).
That broad prophylactic purpose would be clearly contravened by 
depriving the courts of the disparate impact analytical device. 
While it is true that the disparate treatment model may yield 
the same practical result in some cases as does the impact 
model, the very purpose of Congress in enacting § 703(a)(2) was 
to require that any and all selection devices be subjected to 
close scrutiny for unjustified disparate impact, irrespective of 
the employer's purpose or intent. To require that the broad 
prophylactic purpose of Title VII be accomplished in the 
roundabout and catch—as—catch—can fashion of using the disparate 
treatment device, in which the object is to search for racial 
animus or invidious intent, would be inconsistent with 
unambiguous statutory purpose.

13



Practices that may allow for consideration of subjec­
tive, non-job-related factors, such as interviews and super­
visory recommendations, are as capable as written tests of 
operating as "barriers" or "built-in headwinds" to minority or 
female advancement. A supervisor may give a good faith 
evaluation of an employee's performance of a particular task. 
However, the ability to perform the task evaluated may not be 
related to performance of the job for which the candidate is 
applying. Similarly, an interviewer may attempt to select the 
best applicant, but be incapable of making a valid, objective 
decision. Such practices may thus serve as "artificial,
arbitrary, and unnecessary barriers to employment," condemned in 
Gr iggs.

Moreover, exclusion of subjective practices from the 
reach of the disparate impact model of proof is likely to 
encourage employers to use subjective, rather than objective, 
selection criteria. See, e,g., Pettway v. American Cast Iron 
Pipe Co., 494 F.2d 211, 240-43 (5th Cir. 1974) (district court 
ordered to consider whether employer's switch from objective to 
subjective promotion criteria violated Title VII). Rather than 
validate educational and other objective criteria, employers can 
simply take such criteria into account in subjective interviews 
or review-panel decisions. It was not and cannot have been the 
intent of Congress to provide employers with an incentive to use 
such devices rather than validated objective criteria.

It is anomalous to suggest that subjective employment 
criteria are not an employment "practice" or "procedure" subject 
to the full requirements of § 703(a)(2) and Griggs. A

14



supervisory appraisal procedure with subjective criteria, for 
example, is as much an employment "practice" or "procedure" as a 
written test, a diploma requirement or nepotistic preferences.
To hold otherwise would immunize discriminatory subjective 
employment criteria from the full force of Title VII, while 
leaving equally discriminatory procedures subject to complete 
Title VII coverage.

Such a distinction between subjective and objective 
employment practices has no basis in the statute or any public 
policy. If any distinction were to be drawn, one would expect 
the courts to scrutinize subjective selection devices more 
rigorously than objective ones in light of the fact that subjec­
tive criteria can far more easily be used to mask impermissible 
motivations for employment decisions. It is for this reason 
that subjectively evaluated criteria have long been recognized 
as an unusually potent means of illegal employment discrimina­
tion. "Subjective job criteria present potential for serious 
abuse and should be view with much skepticism . . . [They] 
provide[] a convenient pretext for discriminatory practices." 
Nanty v. Barrows Co., 660 F.2d 1327, 1334 (9th Cir. 1981).

*  *  *

Applying the rule articulated by the three-judge panel 
would thwart the purpose of the statute. The panel opinion was 
concerned that application of the disparate impact model to 
subjectively evaluated criteria would diminish the need to prove 
invidious intent. That of course is true: the essential inquiry 
of disparate impact analysis is a search for unjustified adverse 
impact in lieu of the traditional search for indicia of

15



purposeful discrimination. Griggs' construction of § 703 (a) (2) 
and the 1972 legislative history unequivocally demonstrate that 
Congress intended that Title VII "proscribe[] not only overt
discrimination but also practices that are fair in form, but

2/discriminatory in operation." 401 U.S. at 431.—
Moreover, adhering to Congressional purpose in the 

application of the disparate impact analysis to subjective 
criteria will not open the flood gates and expose employers to 
unwarranted liability. "To establish a prima facie case of 
discrimination, a plaintiff must show that the facially neutral 
employment practice had a significantly discriminatory impact." 
Teal, 457 U.S. at 446 (emphasis added). The difficulties of 
establishing plaintiffs' prima facie statistical case utilizing 
the proper relevant labor pool and with the requisite levels of 
statistical significance are amply demonstrated in this Court's 
decisions. E.g. , Moore v. Hughes Helicopter Corp., 708 F .2d 
475, 482-83 (9th Cir. 1983); Peters v. Lieuallen, 746 F .2d 1390, 
1393 (9th Cir. 1984). It is true that "[t]he touchstone is bus­
iness necessity" and an employer's burden of demonstrating that 
"any requirement [has] a manifest relationship to the employment 
in question" is substantially more difficult than the "legitimate

—' The panel opinion was also concerned that subjectively
evaluated selection criteria were not sufficiently "facially 
neutral" to permit analysis under the disparate impact model. 
That concern appears to arise largely from the erroneous belief 
that such clearly non-subjective practices as racially separate 
hiring channels, word-of-mouth recruitment or rehiring prefer­ences, were subjective procedures. See plaintiffs-appellants' 
briefs. Clearly, the supervisory selection procedure —  the 
subjectively evaluated criteria at issue in the instant 
appeal —  are facially neutral, and provide a "ready mechanism 
for discrimination." Rowe v. General Motors, 457 F.2d at 359.

16



business purpose" showing required under the disparate treatment 
model. However, the employer's heavier rebuttal burden under 
the disparate impact model is commensurate with the heavier 
prima facie showing required of plaintiffs in a disparate impact 
case compared to disparate treatment. See Griffin, 755 F.2d at 
1526-28; Seqar v. Smith, 738 F.2d 1249, 1268-72 (D.C. Cir.
1984). The requirements of both plaintiff's prima facie case 
and the employer's rebuttal are "in some respects more exacting 
than those of a disparate impact case." See Moore, 708 F .2d at 
482.-/

Last, the panel opinion suggests that if the disparate 
impact analysis with its requirement that selection criteria be 
job-related is applied to subjective criteria, employers will be 
forced to engage in quota hiring in an effort to avoid liabil­
ity. This point was addressed in Gr iggs, 401 U.S. at 436 , where 
Chief Justice Burger, for a unanimous Supreme Court, declared:

Congress has not commanded that the less 
qualified be preferred over the better 
qualified simply because of minority 
origins. Far from disparaging job 
qualifications as such, Congress has made

—'' The panel opinion suggests that subjective selection
systems with multiple components should not be subjected to 
disparate impact analysis. That position is at odds with 1972 
legislative history that Congress was concerned with "systems" 
of employment discrimination and "systemic barriers," see supra; 
at odds with references in Griggs and Teal to the applicability 
of disparate impact analysis to "practices" and "procedures" without any such limitation; and at odds with persuasive 
authority. E.g., Griffin, 755 F.2d at 1326-28; Seqar, 738 F.2d 
1271-72; Johnson v. Uncle Ben's, Iric., 628 F.2d 419, 426-27 (5th 
Cir. 1980). Furthermore, limiting disparate impact analysis to 
a single component fails to address discrimination that results 
from the interaction of two or more components. See Gilbert v. 
City of Little Rock, 722 F.2d at 1397-98.

17



such qualifications the controlling factor, 
so that race, religion, nationality, and sex 
become irrelevant. What Congress has commanded is that any [selection devices] 
used must measure the person for the 
job . . .

IV
CONCLUSION

The panel and district court opinions should be 
vacated, and the relief sought by plaintiffs-appellants should 
be granted.

Dated: January 6, 1985 Respectfully submitted,
BILL LANN LEE 
Center for Law in the 
Public Interest

A. THOMAS HUNT Hunt & Cochran-Bond
JULIUS LEVONNE CHAMBERS 
RONALD L. ELLIS NAACP Legal Defense and 
Educational Fund, Inc.

ANTONIA HERNANDEZ 
THERESA FAY BUSTILLOS 
Mexican-American Legal Defense

Counsel for Amici Curiae
!II

18



CERTIFICATE OF SERVICE
I, Christina Concepcion, declare:
That I am a citizen of the United States and a resident 

of the County of Los Angeles, over the age of 18 and not a party 
to the within action; and that I am employed in the office of a 
member of the bar of this Court at whose direction this service was made;

That on January 6, 1986, I caused to be served upon 
parties herein a true copy of MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE AND BRIEF AMICUS CURIAE OF THE CENTER FOR LAW IN 
THE PUBLIC INTEREST, THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL 
FUND, AND HUNT & COCHRAN-BOND by depositing the same in the 
United States Mail at Los Angeles, California, in a sealed, 
postage paid envelope addressed to the following:

DOUGLAS M. FRYER 
DOUGLAS M. DUNCAN 
RICHARD L. PHILLIPS
Moriarty, Mikkelborg, Broz, Wells & Fryer 
3300 Seattle-First Nat'l Bldg.
Seattle, WA 98154
BOBBE JEAN BRIDGE 
Garvey, Schubert, Adams & Barer 
Waterfront Place Building 
1011 Western Avenue 
Seattle, WA 98104
ABRAHAM A. ARDITY
Northwest Labor and Employment Law Office 
900 Hoge Building 
705 Second Avenue 
Seattle, WA 98104

Executed this 6th day of January, 1986, at Los Angeles, California.
I declare under penalty of perjury that the foregoing is true and correct.

Christina Concepcion