Atonio v. Wards Cove Packing Company Court Opinion

    UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

F rank Atonio , E ugene Baclig, 
R andy del F ierro , C larke K ido , 
Lester K uramoto, A lan L ew , 
C urtis L ew, R obert M orris, 
J oaquin A rruiza , Barbara 
V iernes, as administratrix of the 
estate of Gene Allen Viernes, and 
all others similarly situated,

Plaintiffs-Appellants,
v.

W ards C ove P acking C ompany, 
In c ,, C astle & C ooke, In c ., and  
C olumbia W ards F isheries,

Defendants-Appellees.

Nos. 83-4263; 
84-3527

D.C. No.
CV 74-145 JLQ

OPINION

Argued and Submitxed En Banc 
February 18, 1986—San Francisco, California

Filed February 23, 1987

Before: Browning, Goodwin, Wallace, Sneed, Anderson, 
Hug, Tang, Schroeder, Fletcher, Pregerson, and Reinhardt, 

Circuit Judges.

Opinion by Judge Tang; Concurrence by Judge Sneed, with 
whom Goodwin, Wallace, and Anderson join. Concurring

Separately

Appeal from the United States District Court 
for the Western District of Washington 

Justin L. Quackenbush, District Judge, Presiding

1



2 Atonio, et al. v. Wards Cove Packing Co.

SUMMARY

Employment Discrimination/Courts and Procedure

En banc review of affirmance of judgment of district court. 
Returned to panel for further reconsideration.

Salmon cannery workers in Alaska brought a class action 
suit charging three companies with employment discrimina­
tion on the basis of race in violation of Title VII of the Civil 
Rights Act. The class alleged both disparate treatment and 
disparate impact claims on behalf of minority persons. The 
companies’ use of separate hiring channels for cannery work­
ers from those used for the higher paying jobs, word-of-mouth 
recruitment, nepotism, rehire policies, and the lack of objec­
tive job qualifications were alleged as proof of both disparate 
treatment of and disparate impact on minority persons. The 
district court, relying on Ninth Circuit authority, refused to 
evaluate all of the claims under disparate impact analysis. 
Judgment was entered in favor of the employers.

On appeal, the panel noted an irreconcilable conflict in the 
prior decisions of this court as to whether disparate impact 
analysis may be applied to subjective employment practices. 
The panel affirmed the judgment of the district court, holding 
it was bound by Heagney v. University o f Washington, 642 
F.2d 1157 (1981), which was decided before the conflicting 
decision of Wang v. Hoffman, 694 F.2d 1146 (1982).

[1] The en banc panel first addressed the issue of how panels 
should decide a case controlled by contradictory precedents 
and held that en banc review is the appropriate mechanism 
for resolving the irreconcilable conflict.

[2] An employee may prove an employer’s Title VII liabil­
ity through a theory of disparate treatment or disparate 
impact. Proof of disparate treatment requires a showing that



Atonio, et al. v. W ards Cove Packing Co. 3

the employer intentionally treats some people less favorably 
than others because of their race, color, religion, sex, or 
national origin. [3] A disparate impact claim challenges 
employment practices that are facially neutral in their treat­
ment of different groups but that in fact fall more harshly on 
one group than another and cannot be justified by business 
necessity.

Hj A conflict developed in Ninth Circuit decisions because 
prior panels have not all agreed that the close scrutiny of sub­
jective practices can or should take the form of a disparate 
impact analysis. {5] In Heagney, the court held impact analy­
sis inappropriate in a case involving subjective criteria. [6] In 
at least two other cases, however, this court has applied 
impact analysis to subjective criteria. [7] In subsequent cases 
the court has recognized the conflict but felt it unnecessary to 
resolve the question.

[8] Although Title VII was not amended specifically to 
extend disparate impact analysis to subjective practices, deci­
sional law incorporated at that time is evidence of Congress’ 
endorsement of that position. [9] Additional authority for this 
court’s decision to apply the disparate impact model is found 
in the announcement of the four agencies charged with 
enforcement of Title VII that the law requires application of 
the disparate impact model to all selection procedures 
whether subjective or objective. [10] Further, applying the 
tool of disparate impact analysis to subjective practices and 
criteria is necessary to fully implement the prophylactic pur­
pose of Title VII.

, 111] Defendants argue that there is a logical basis for a dis­
tinction between objective and subjective practices; subjec­
tive practices are by nature and definition based upon intent 
and thus should be evaluated only for discriminatory animus. 
112] The court disagrees, subjective practices can be engen­
dered by a totally benign purpose or carried on as matter of 
routine adherence to past practices, but such practices may be



4 Atonio, et al. v. Wards Cove P acking Co,

the cause of adverse impact. [13] The court also notes that 
preserving the distinction between subjective and objective 
practices could serve to encourage employers to abandon 
objective criteria and practices in favor of subjective decision 
making as a means of shielding their practices from judicial 
scrutiny.

[14] The court also rejects defendants’ contention that the 
burden placed on an employer in an impact case is unduly 
onerous when the practices identified as having a disparate 
impact are subjective in nature. [15] Proving business neces­
sity is no more onerous in a case involving subjective prac­
tices than one involving objective practices, because in either 
case the employer is the person with knowledge of what his 
practices are and why he uses the methods and criteria he 
does.

[16] The court therefore holds that disparate impact analy­
sis can be applied to subjective employment practices and to 
the extent that prior decisions have held to the contrary, they 
are expressly overruled.

A concurring opinion expressed the view that disparate 
impact analysis should be applied whenever the plaintiff 
claims that the employer has articulated an unnecessary prac­
tice that makes the plaintiffs true qualifications irrelevant, 
which differs from a disparate treatment case in which the 
plaintiff claims that, knowing the plaintiffs qualifications, the 
employer refused to hire him because of race or some other 
impermissible characteristic.

COUNSEL

Abraham A. Arditi, Seattle, Washington, for plaintiffs- 
appellants.



Atonio, et al. v. W ards Cove Packing Co._________ 5

Douglas M. Fryer, Seattle, Washington, for defendants- 
appellees.

Bill Lann Lee, Los Angeles, California; Robert E. Williams, 
Washington, D.C., for amicis curiae.

OPINION

TANG, Circuit Judge:

We grant en banc review in this Title VII race discrimina­
tion case to decide two questions. First, we decide the proce­
dure a panel should follow when faced with an irreconcilable 
conflict between the holdings of controlling prior decisions of 
this court. Second, we resolve that irreconcilable conflict, by 
deciding that disparate impact analysis may be applied to 
subjective employment practices. The district court declined 
to apply disparate impact analysis on the authority of 
Heagney v. University o f Washington, 642 F.2d 1157 (9th Cir. 
1981) (practice of hiring without well-defined criteria cannot 
be subjected to disparate impact analysis) and chose to disre­
gard the later decision in Wang v. Hoffman, 694 F.2d 1146 
(9th Cir. 1982) (lack of objective criteria for promotion can 
be analyzed for disparate impact). The Ninth Circuit panel 
that heard the appeal from the judgment for the employers in 
the instant case noted our conflicting decisions but held it was 
bound by Heagney because it expressed the “correct view” or, 
alternatively, because it was the decision “first in line.” 
Atonio v. Wards Cove Packing Co,, Inc., 768 F.2d 1120, 1132 
and n.6 (9th Cir. 1985), withdrawn, 787 F.2d 462 (9th Cir. 
1985).

11] The panel’s approach did not resolve the broader ques­
tion of how future panels should decide a case controlled by 
contradictory precedents. We now hold that the appropriate 
mechanism for resolving an irreconcilable conflict is an en



6 Atonio, etal. v. Wards Cove Packing Co.

banc decision. A panel faced with such a conflict must call for 
en banc review, which the court will normally grant unless the 
prior decisions can be distinguished. Despite the 
“extraordinary” nature of en banc review, United States v. 
American-Foreign Steamship Corp., 363 U.S. 685, 689 
(1960), and the general rule that en banc hearings are “not 
favored,” Fed. R. App. P. 35(a), en banc review is proper 
“when consideration by the full court is necessary to secure or 
maintain the uniformity of its decisions.” Fed. R. App. P. 
35(a)(1); see also American-Foreign Steamship, 363 U.S. at 
689-90.

Turning to the substantive question which produced our 
conflicting prior decisions, we note that this case arises out of 
the cannery workers’ allegations of both disparate treatment 
and disparate impact. Thus it affords us the opportunity to 
refine the analytic tools for the identification and eradication 
of unlawful discrimination. Specifically, we now determine 
that disparate impact analysis may be applied to subjective 
employment practices.

I. BACKGROUND

Former salmon cannery workers brought a class action suit 
charging three companies with employment discrimination 
on the basis of race in violation of Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000e (1982) and the Civil Rights 
Act of 1866, 42 U.S.C. § 1981 (1982). The class alleged both 
disparate treatment and disparate impact claims on behalf of 
minority persons. It alleged that the pronounced concentra­
tion of Asian and Alaska Native employees in the lowest pay­
ing cannery worker and laborer positions and the relative 
scarcity of such minority employees in the higher paying posi­
tions proved disparate treatment of minority people. It also 
alleged that certain specific employment practices of the com­
panies proved both disparate treatment of and disparate 
impact on minority people. The cannery workers challenged 
the companies’ use of separate hiring channels for cannery



7Atonio, et al. v. W ards Cove P acking Co.

workers from those used for the higher paying, at-issue jobs, 
as well as word-of-mouth recruitment, nepotism, rehire poli­
cies, and the lack of objective job qualifications.

The majority of cannery workers are hired from native vil­
lages in Alaska and through a local union of primarily Fili­
pino members of the International Longshoremen’s and 
Warehousemen’s Union (ILWU) in Seattle. Consequently, 
cannery workers are almost all members of these ethnic 
groups. All other positions are filled through applications 
received during the off-season at the mainland home offices, 
through rehiring previous employees and through word-of- 
mouth recruitment. These positions are held predominantly 
by white people. Another challenged practice, of particular 
relevance in our en banc review of this case, is the apparent 
lack of objective qualifications for many job classifications, 
and the resultant use of subjective criteria in hiring and pro­
moting. When filling most job positions, the respective hiring 
officers generally seek to hire the individuals who are, in the 
hiring officer’s opinion, the best for the job.

In addition to the racial stratification of jobs, the cannery 
workers complain that even those nonwhites who obtain posi­
tions with the companies are treated differently from whites. 
They allege that nonwhites are segregated from whites in 
bousing and messing, and that the bunkhouses and food pro­
vided for nonwhites are far inferior to those provided for 
whites.

In holding for the defendant companies, the district court 
evaluated the evidence introduced by both sides, including 
conflicting statistical data. The court analyzed all the cannery 
workers’ claims for intentional discrimination, and con­
cluded that the companies had successfully shown nondis- 
criminatory motivations for their practices. Despite the 
cannery workers’ contrary arguments, the court, relying on 
Ninth Circuit authority, refused to evaluate all of the claims 
under the disparate impact model of Title VII. The court sub-



8 Atonio, et al. v. W ards Cove Packing Co.

jected a few claims to disparate impact analysis and again 
found for the defendants.

II. ANALYSIS

A. Title VII Liability

[2] Section 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) 
(1982), provides 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 employ­
ment opportunities or otherwise adversely affect his 
status as an employee, because of such individual’s 
race, color, religion, sex, or national origin.

An employee may prove an employer’s Title VII liability 
through a theory of disparate treatment or a theory of dispa­
rate impact. Proof of disparate treatment requires a showing 
that the employer intentionally “treats some people less 
favorably than others because of their race, color, religion, 
sex, or national origin.” International Brotherhood o f Team­
sters v. United States, 431 U.S. 324, 335 n.15 (1977). An illicit 
motive may be inferred in an individual discrimination claim 
when the plaintiff shows he is a member of a protected class 
who applied for, and failed to get, a job for which he was qual­
ified and which remained open after his rejection. McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). An illicit 
motive may be inferred in a class-wide discrimination claim 
from a sufficient showing of disparity between the class mem­
bers and comparably qualified members of the majority 
group. Segar v. Smith, 738 F.2d 1249, 1265-66 (D.C. Cir.



Atonic, ET AL. V. WARDS COVE PACKING CO. 9

1984), cert, denied, 105 S. Ct. 2357 (1985) (citing Teamsters, 
431 U.S. at 335 n.15).

[3] A disparate impact claim challenges “employment prac­
tices that are facially neutral in their treatment of different 
groups but that in fact fall more harshly on one group than 
another and cannot be justified by business necessity.” 
Teamsters, 431 U.S. at 336 n.15. Illicit motive is irrelevant 
because impact analysis is designed to implement Congres­
sional concern with “the consequences of employment prac­
tices, not simply the motivation.” Griggs v. Duke Power Co., 
401 U.S. 424, 432 (1971) (emphasis in original). In a class 
action suit, commonly known as a “pattern or practice” case, 
plaintiffs typically assert claims both of disparate treatment 
occasioned by an employer’s practices and of disparate 
impact produced by those practices. Segar, 738 F.2d at 1266. 
As the Supreme Court noted in Teamsters, a pattern and 
practice class action case, “[ejither theory may, of course, be 
applied to a particular set of facts.” 431 U.S. at 336 n.15.

B. Impact Analysis in the Ninth Circuit

1. Conflict

Disparate treatment and disparate impact are but two ana­
lytic tools which may be used in the appropriate Title VII case 
to resolve the ultimate question, whether there has been 
impermissible discrimination by an employer. See, e.g., 
Goodman v. Lukens Steel Co., I l l  F.2d 113, 130 (3d Cir. 
1985). Despite the Teamsters language stating that either the­
ory may be applied to a set of facts, courts have not uniformly 
interpreted the scope of impact analysis.1 Differences have

1The Second, Third, Sixth, Tenth, Eleventh and District of Columbia 
Circuits apply impact analysis to subjective practices and criteria. See, e.g., 
Zahorik v. Cornell University, 729 F.2d 85 (2d Cir. 1984); Grant v. Bethle­
hem Steel Corp., 635 F.2d 1007 (2d Cir. 1980), cert, denied, 452 U.S. 940 
(1981); Wilmorev. City o f Wilmington, 699F.2d667 (3d Cir. 1983);i?owe



10 Atonio, et al. v. Wards Cove P acking Co.

arisen from the conflicting views of whether impact analysis 
can be applied to evaluate employment procedures or criteria 
different from the objective test and diploma requirement 
scrutinized in the seminal Griggs decision or the height and 
weight requirements analyzed in Dothard v. Rawlinson, 433 
U.S. 321 (1977).2

v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88 (6th Cir. 
1982); Hawkins v. Bounds, 752 F.2d 500 (10th Cir. 1985); Lasso v. Wood­
men o f World Life Insurance Co., Inc., 741 F.2d 1241 (10th Cir. 1984), cert, 
denied, 105 S. Ct. 2320 (1985); Coev. Yellow Freight System, Inc., 646 F.2d 
444 (10th Cir. 1981); Williams v. Colorado Springs School District No. 11, 
641 F.2d 835 (10th Cir. 1981); Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 
1985); Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984), cert, denied, 105 S. 
Ct. 2357 (1985). The Fourth Circuit does not apply impact analysis to sub­
jective criteria. See, e.g., E.E.O.C. v. Federal Reserve Bank, 698 F.2d 633 
(4th Cir. 1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve 
Bank, 467 U.S. 867 (1984); Pope v. City o f Hickory, 679 F.2d 20 (4th Cir. 
1982); but see Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 
(4th Cir.), cert, denied, 409 U.S. 982 (1972); Robinson v. Lorillard Corp., 
444 F.2d 791 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971). The Fifth, 
Seventh and Eighth Circuits have reached conflicting results, sometimes 
applying impact analysis and sometimes refusing to apply it. See, e.g., Page 
v. U.S. Industries, Inc., 726 F.2d 1038 (5th Cir. 1984); Rowe v. General 
Motors Corp., 457 F.2d 348 (5th Cir. 1972)(applying impact analysis); 
contra Bunch v. Bullard, 795 F.2d 384, 394 (5th Cir. 1986); Vuyanich v. 
Republic National Bank, 723 F.2d 1195 (5th Cir.) cert, denied, 105 S. Ct. 
567 (1984); Pegues v. Mississippi State Employment Service, 699 F.2d 760 
(5th Cir.), cert, denied, 464 U.S. 991 (1983); Carroll v. Sears Roebuck & Co., 
708 F.2d 183 (5th Cir. 1983); Pouncy v. Prudential Insurance Co., 668 F.2d 
795 (5th Cir. 1982); Griffin v. Board o f Regents, 795 F.2d 1281,1288-89 and 
n. 14 (7th Cir. 1986)(refusing to apply impact analysis); contra Clark v. 
Chrysler Corp., 673 F.2d 921 (7th Cir.) cert, denied, 459 U.S. 873 (1982); 
Talley v. United States Postal Service, 720 F.2d 505 (8th Cir. 1983), cert, 
denied, 466 U.S. 952 (1984); Harris v. Ford Motor Co., 651 F.2d 609 (8th 
Cir. 1981)(refusing to apply impact analysis); contra Gilbert v. Little Rock, 
722 F.2d 1390 (8th Cir. 1983), cert, denied, 104 S. Ct. 2347 (1984).

2See, e.g. Page v. U.S. Industries, Inc., 726 F.2d 1038, 1054 (5th Cir. 
1984) (applying impact analysis to subjective employment practices in 
accord with Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972) 
because “promotional systems which depend upon the subjective evalua-



11Atonio, et al. v. W ards Cove P acking Co.

[4] This circuit has clearly held that subjective practices 
and decisions are not illegal per se. Heagney v. University o f 
Washington, 642 F.2d 1157, 1 163 (9th Cir. 1981). At the 
same time, we have stated that subjective practices are partic­
ularly susceptible to discriminatory abuse and should be 
closely scrutinized. Kimbrough v. Secretary o f United States 
Air Force, 764 F.2d 1279, 1284 (9th Cir. 1985); Nanty v. Bar- 
rows Co., 660 F.2d 1327, 1334 (9th Cir. 1984). The conflict in 
our decisions has developed because prior panels have not all 
agreed that the close scrutiny of subjective practices can or 
should take the form of a disparate impact analysis.

[5] In Heagney, the plaintiff challenged the University’s 
power to classify certain jobs as “exempt” from state person­
nel laws, which, in turn, gave the school more discretion in 
setting salaries. We held that the crux of the complaint was an 
objection to the lack of well-defined criteria, which could not 
be equated with practices such as personnel tests or minimum 
physical requirements. Thus, although we had previously 
noted that both treatment and impact analysis may be 
applied, we held that impact analysis was inappropriate. 
Heagney, 642 F.2d at 1163. We followed Heagney in O'Brien 
v. Sky Chefs, 670 F.2d 864, 866 (9th Cir. 1982) and refused to 
apply impact analysis to an employer’s lack of well-defined 
promotion criteria, noting that the lack of such criteria does 
not per se cause an adverse impact.

[6] On the other hand, this court has applied impact analy­
sis to subjective criteria in at least two cases. In Wang v. Hoff-

tion and favorable recommendation of immediate supervisors provide a 
ready vehicle for discrimination.”); E.E.O.C. v. Federal Reserve Bank, 698 
F.2d 633, 639 (4th Cir. 1983), rev’d on other grounds sub nom. Cooper v. 
Federal Reserve Bank, 467 U.S. 867 (1984)(allegedly discriminatory pro­
motion policies could not be subjected to impact analysis because the sub­
jective criteria did not amount to an “objective standard, applied evenly 
and automatically” as are a diploma requirement, a test or a minimum 
height or weight requirement).



12 Atonio, et al. v. Wards Cove Packing Co.

man, 694 F.2d 1146, 1148 (9th Cir. 1982), which challenged 
the hiring and promotion policies of the Army Corps of Engi­
neers, the panel held that a promotion system lacking objec­
tive criteria could be challenged for its disparate impact, and 
in Peters v. Lieuallen, 746 F.2d 1390, 1392 (9th Cir. 1984), 
the panel held that impact analysis could be applied to subjec­
tive criteria used during interviews to screen candidates, but 
that the plaintiff must show that use of the criteria caused the 
adverse impact. See also Yartzoff v. Oregon, 745 F.2d 557, 
558 (9th Cir. 1984) (impact analysis of subjective promotion 
criteria appropriate in age discrimination case, but plaintiff 
failed to offer proof of disparate impact).

[7] In subsequent cases we have recognized the conflict 
between Heagney and Wang, but felt it unnecessary to resolve 
the question. See Moore v. Hughes Helicopters, Inc., 708 F.2d 
475, 481 (9th Cir. 1983) (noting that “[t]he law in this court 
is unsettled” stated disparate treatment focus well suited to 
analysis of subjective decision making); Spaulding v. Univer­
sity o f Washington, 740 F.2d 686, 709 (9th Cir.) (lack of well 
defined criteria facilitating wage discrimination better pres­
ented under disparate treatment model on the authority of 
Heagney, followed by a “hut cf.” citation to Wang), cert, 
denied, 105 S. Ct. 511 (1984).

2. Resolution

We now hold that disparate impact analysis may be applied 
to challenge subjective employment practices or criteria pro­
vided the plaintiffs have proved a causal connection between 
those practices and the demonstrated impact on members of 
a protected class. The three elements of the plaintiffs’ prima 
facie case are that they must (1) show a significant disparate 
impact on a protected class, (2) identify specific employment 
practices or selection criteria and (3) show the causal relation­
ship between the identified practices and the impact. We are 
persuaded that this holding comports with the express lan­
guage of the statute, the intent of Congress as revealed in its



Atonio, et al. v. W ards Cove Packing Co. 13

discussions of the 1972 amendments, the enforcement agen­
cies’ interpretation, and the broad prophylactic purposes of 
Title VII.

3. Rationale

a. Statutory Language

We begin with the observation that Title VII proscribes all 
forms of employment discrimination. It does so without ref­
erence to either objective or subjective practices. Title VII 
states that it is an unlawful employment practice “to limit, 
segregate, or classify . . .  employees or applicants for employ­
ment in any w ay” 42 U.S.C. § 2000e-2(a)(2)(1982)(emphasis 
added). The Supreme Court construed this language as pro­
scribing “not only overt discrimination but also practices that 
are fair in form, but discriminatory in operation.” Griggs, 401 
U.S. at 431. The Court developed the disparate impact model 
for proving discrimination in recognition of Congress’ intent 
to remove “artificial, arbitrary, and unnecessary barriers to 
employment.” Id. Although Griggs involved requirements of 
a high school diploma and an objective test, the opinion did 
not expressly limit impact analysis to such criteria.

b. Congressional Intent

[8] There is considerable evidence that Congress endorsed 
the Griggs decision during discussion of amendments to Title 
VII in 1972. H.R. Rep. No. 238, 92d Cong., 1st Sess. 19, 24 
(1971), reprinted in 1972 U.S. Code Cong. & Ad. News 2137, 
2164; S. Rep, No. 415, 92d Cong., 1st Sess. 1, 14-15 (1971); 
Connecticut v. Teal, 457 U.S. 440, 447 n.8 (1982); see 
Helfand and Pemberton, The Continuing Vitality o f Title VII 
Disparate Impact Analysis, 36 Mercer L. Rev. 939, 948-54 
(1985). The section-by-section analyses of the 1972 amend­
ments submitted to both houses of Congress expressly stated 
that in areas not addressed by the amendments, existing case 
law was intended to continue to govern. 118 Cong. Rec. 7166,



14 Atonio, et al. v. Wards Cove Packing Co.

7564 (1972); Teal, 457 U.S. at 447 n.8. Thus, although Title 
VII was not amended specifically to extend disparate impact 
analysis to subjective practices, decisional law incorporated 
at that time included not only Griggs, but such cases as United 
States v. Bethlehem Steel Corp., 446 F.2d 652, 657-58 (2d Cir. 
1971), which applied Griggs to invalidate subjective hiring 
standards and procedures.

c. Enforcement Agencies’ Interpretation

[9] Additional authority for our decision to apply the dispa­
rate impact model is found in the announcement of the four 
agencies charged with enforcement of Title VII—the Equal 
Employment Opportunity Commission, the Office of Person­
nel Management, the Department of Justice and the Depart­
ment of Labor—that the law requires application of the 
disparate impact model to all selection procedures whether 
subjective or objective. Griffin v. Carlin, 755 F.2d 1516, 1525 
(11th Cir. 1985). The Uniform Guidelines on Employee 
Selection Procedures, adopted in 1978, define the procedures 
to which impact analysis applies as:

[a]ny measure, combination of measures, or proce­
dure used as a basis for any employment decision. 
Selection procedures include the full range of assess­
ment techniques from . ..  physical, educational, and 
work experience requirements through informal or 
casual interviews.

29 C.F.R. § 1607.16(Q)(1985).

Because the statutory language and legislative history support 
the administrative interpretation, the guidelines are “entitled 
to great deference,” and can be treated as “expressing the will 
of Congress.” Griggs, 401 U.S. at 434.

d. Purpose of Title VII

[10] Applying the tool of disparate impact analysis to sub­
jective practices and criteria is necessary to fully implement



Atonio, et al. v. W ards Cove P acking Co. 15

the prophylactic purpose of Title VII to achieve equal 
employment opportunity and remove arbitrary and unneces­
sary barriers which have operated to favor white male 
employees over others. Teal, 457 U.S. at 451; Teamsters, 431 
U.S. at 364; Griggs, 401 U.S. at 431. It is essential precisely 
because such practices will quite often lack any discrimina­
tory animus. Subjective practices can operate as “ ‘built-in 
headwinds’ ” for minority groups as readily as can objective 
criteria, Griggs, 401 U.S. at 432, and these practices should 
likewise be exposed and eradicated when they cause adverse 
impact without proof of a redeeming business necessity. The 
Supreme Court has not held otherwise.

e. Furnco

There has been considerable discussion about the meaning 
of Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 
Some courts and commentators suggest the Supreme Court 
restricted the application of Griggs impact analysis to objec­
tive criteria.3 The majority of circuits, however, do not sub­
scribe to this reading of Furnco and have applied impact 
analysis to subjective practices.4

The employment practice challenged in Furnco was the 
refusal to accept jobsite applications for bricklayers to reline 
blast furnaces with firebrick. Instead, the job superintendent 
hired only bricklayers he knew were experienced or who had

3See, e.g., Larson, 3 Employment Discrimination § 76.36 n.90 (1984 & 
Supp. Nov. 1985)(collecting cases).

*See, e.g. Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir. 1980), 
cert, denied, 452 U.S. 940 (1981)(a post Furnco decision in which, on virtu­
ally identical facts, the court held that word of mouth hiring should be eval­
uated as discriminatory treatment and for discriminatory impact. Id. at 
1016-11.)-Bauer v. Bailar, 647 F.2d 1037, 1043 (10th Cir. 1981)(“Subjective 
hiring and promotion decisions, particularly where made in the absence of 
specific standards and guidelines!,] may not go unexplained if there is a sig­
nificantly disproportionate non-selection of members of a [protected] 
group.. . . ”). See also cases cited supra, n. 1.



16 Atonio, et al. v. W ards Cove Packing Co.

been recommended by his foremen. Furnco, 438 U.S. at 570. 
In applying the McDonnell Douglas formula of disparate 
treatment the Court noted the case did not implicate employ­
ment tests previously treated in Griggs and Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 412-13 (1975)(Moody), or partic­
ularized physical requirements such as those discussed in 
Dothard, 433 U.S. at 329, and that it was not a pattern and 
practice case as was Teamsters, 431 U.S. at 358. Furnco, 438 
U.S. at 575 n.7.

We do not read this footnote to preclude impact analysis of 
the claims presented in the case at bar. Clearly, the facts giv­
ing rise to allegations of discrimination may support a prima 
facie case of disparate treatment or disparate impact. See, 
Teamsters, 431 U.S. at 336 n.15 (“[e]ither theory may, of 
course, be applied to a particular set of facts.”) In other 
words, Furnco imposes no limitation on use of impact analy­
sis beyond the restrictions inherent in demonstrating a prima 
facie case.

The Furnco plaintiffs identified a specific practice, but were 
unable to prove that the practice had an adverse impact on 
black bricklayers. 438 U.S. at 571. Because they failed to 
demonstrate disparate impact, they failed to establish a 
prima facie case of disparate impact, and thus, use of that 
analytic tool was inappropriate.

In contrast, the plaintiffs in this case contend they are con­
signed to lower paying jobs by a system of racial segregation 
implemented through a variety of specific employment prac­
tices. The statistics provide evidence of a significant disparate 
impact and the challenged practices are agreed to cause dispa­
rate impact. Thus, these plaintiffs are entitled to the applica­
tion of impact analysis as an appropriate analytic tool to 
challenge the discriminatory effect of the companies’ prac­
tices because they have satisfied the elements of the prima 
facie case: a significant disparate impact on a protected class, 
the identification of specific employment practices or selec-



Atonio, et al. v. Wards Cove Packing Co. 17

tion criteria and a causal relationship between the identified 
practice and the impact.

f. Logic Supports Impact Analysis

|11] Although the language of the statute and Congressional 
discussions of Title VII, as well as Supreme Court pronounce­
ments are sufficient authority for the application of disparate 
impact analysis to subjective employment practices, we 
should also note that we are unpersuaded by the defendants’ 
objections to our decision based on appeals to logic or social 
policy. Defendants argue that there is a logical basis for a dis­
tinction between objective and subjective practices and for 
the correlative categorization of the analysis of the proof of 
impermissible discrimination. In their view subjective prac­
tices are by nature and definition based upon intent and thus 
should be evaluated only for discriminatory animus. They 
argue that only objective practices can be evaluated for dispa­
rate impact.

[12] We disagree. Subjective practices may well be a covert 
means to effectuate intentional discrimination, as the defen­
dants point out, but they can also be engendered by a totally 
benign purpose, or carried on as a matter of routine adher­
ence to past practices whose original purposes are undiscov- 
erable. Subjective practices are as likely to be neutral in intent 
as objective ones.5 If, in fact, the subjective practices are a 
“covert means” to discriminate intentionally, by definition 
intent will be difficult to prove. If the practices are the cause 
of adverse impact, the purposes of Title VII are well-served 
by advancing proof of adverse impact, thereby obviating the 
necessity of proving intent. Proof of intent where adverse 
impact can be shown may be not only unnecessary but unde­
sirable because of the animus the process generates.

5See D. Baldus and J. Cole, Statistical Proof o f Discrimination § 1.23 
(1980 & Supp. 1985) (“The logic of the disparate impact doctrine appears 
to apply to covert legitimate policies, no matter how discretionarily they 
are applied, as well as it does to overt nondiscretionary criteria.”)



18 Atonio, et al. v. Wards Cove Packing Co.

We also do not agree that only objective practices can be 
analyzed for disparate impact. When we view employment 
practices from the perspective of their impact on a protected 
class, we are unable to see a principled and meaningful differ­
ence between objective and subjective practices. There is no 
bright line distinction between objective and subjective hir­
ing criteria, because almost all criteria necessarily have both 
subjective and objective elements. For example, while the 
requirement of a certain test score may appear “objective,” 
the choice of skills to be tested and of the testing instruments 
to measure them involves “subjective” elements of judgment. 
Such apparently “subjective” requirements as attractive per­
sonal appearance in fact include certain “objective” factors. 
Thus the terms merely represent extremes on a continuum, 
and cannot provide a line of demarcation to guide courts in 
choosing the appropriate analytic tool in a Title VII discrimi­
nation case.

[13] Finally, we think a distinction between subjective and 
objective practices serves no legitimate purpose. To the con­
trary, preserving the distinction could serve to encourage 
employers to abandon “objective” criteria and practices in 
favor of “subjective” decision making as a means of shielding 
their practices from judicial scrutiny. 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. See Griffin v. Carlin, 755 F.2d 1516, 1525 
(11th Cir. 1985) (“Rather than validate education and other 
objective criteria, employers could simply take such criteria 
into account in subjective interviews . . . .  It could not have 
been the intent of Congress to provide employers with an 
incentive to use such devices rather than validated objective 
criteria.”).

g. Policy Considerations Support Impact Analysis

[14] The defendants argue that the burden placed on an 
employer in an impact case is somehow made unduly onerous



Atonio, et al. v. Wards Cove Packing Co. 19

when the practices identified as having a disparate impact are 
subjective in nature. A class claim of disparate impact is 
essentially an allegation that a disparity in the position of 
nonwhites and whites, often proved through statistical evi­
dence, is “the systemic result of a specific employment prac­
tice that cannot be justified as necessary to the employer’s 
business.” Segar, 738 F.2d at 1267. As in a disparate treat­
ment claim, the initial burden is on the plaintiffs. To establish 
a prima facie case of disparate impact, the plaintiffs must 
prove that a specific business practice has a “significantly dis­
criminatory impact.” Teal, 457 U.S. at 446; Dothard, 433 
U.S. at 329. To reiterate, plaintiffs’ prima facie case consists 
of a showing of significant disparate impact on a protected 
class, caused by specific, identified, employment practices or 
selection criteria.

Once the plaintiff class has shown disparate impact caused 
by specific, identifiable employment practices or criteria, the 
burden shifts to the employer. The crucial difference between 
a treatment and an impact allegation is the intermediate bur­
den on the employer. To rebut the prima facie showing of dis­
parate impact the employer may refute the statistical 
evidence as in the treatment claim and show that no disparity 
exists. But if the employer defends by explaining the reason 
for the disparity he must do more than articulate that reason. 
He must prove the job relatedness or business necessity of the 
practice. Moody, 422 U.S. at 425. The Supreme Court’s deci­
sion in Burdine that the burden of persuasion always stays 
with the plaintiff in a treatment case expressly preserved the 
different allocation of burdens in an impact case. The Court 
stated that it “recognized that the factual issues, and therefore 
the character of the evidence presented, differ when the plain­
tiff claims that a facially neutral employment policy has a dis­
criminatory impact on protected classes.” 450 U.S. at 252 
n.5.

Precisely what the employer must prove will vary with the 
factors of different job settings, but “[t]he touchstone is busi-



20 Atonio, et al. v. W ards Cove P acking Co.

ness necessity.” Griggs, 401 U.S. at 431. In our view, proving 
business necessity is no more onerous in a case involving sub­
jective practices than one involving objective practices, 
because in either case the employer is the person with knowl­
edge of what his practices are and why he uses the methods 
and criteria he does, as well as the person with superior 
knowledge of precisely how his employment practices affect 
employees. See Segar, 738 F .2dat 127!; Pouncy v. Prudential 
Insurance Co., 668 F.2d 795, 801 (5th Cir. 1982). The burden 
of proof on the employer is commensurate with the greater 
burden on the plaintiff to prove impact and to establish the 
causal connection between the practices and the impact. 
Once a challenged practice which causes disparate impact is 
identified, it does not place an unfair burden to ask an 
employer to justify the challenged practice.6 We emphasize 
that while proving business necessity may be ‘ an arduous 
task,” Bunch v. Bullard, 795 F.2d 384, 393 n.10 (5th Cir. 
1986), this burden will not arise until the plaintiff has shown 
a causal connection between the challenged practices and the 
impact on a protected class.

In weighing competing policy considerations urged by the 
defendants, primary guidance is provided by the purpose of 
Title VII, namely to eradicate the existence and effects of dis­
crimination in employment. Treatment and impact analyses 
are interpretive constructions intended to provide guidance 
in evaluating the evidence presented in discrimination cases 
so as best to effectuate Congressional intent. In this case, that 
intent is best realized by a decision to apply disparate impact 
analysis to subjective employment practices.

6We note that a related concern is that the “impact model is not the 
appropriate vehicle from which to launch a wide ranging attack on the 
cumulative effect of a company’s employment practices.” Spaulding, 740 
F.2d at 707. However, this is not such a case. The class has not simply com­
plained about the overall consequences of a collection of unidentified prac­
tices; rather it has identified specific employment practices which cause 
adverse impact. These specific practices which cause adverse impact may 
be considered individually and collectively.



Atonio, et al. v. Wards Cove P acking Co, 21

CONCLUSION

For the reasons discussed, we hold that disparate impact 
analysis can be applied to subjective employment practices. 
To the extent our prior decisions have held to the contrary 
they are expressly overruled.

We return this cause to the panel to reconsider the district 
court’s disposition of the plaintiffs’ claims in light of this deci­
sion.

SNEED, Circuit Judge, with whom Goodwin, Wallace, and 
Anderson, Circuit Judges, join, Concurring Separately:

I agree that en banc resolution of a conflict, such as existed 
with respect to Heagney v. University o f Washington, 642 
F.2d 1157 (9th Cir. 1981), and Wang v. Hoffman, 694 F.2d 
1146 (9th Cir. 1982), is the appropriate means of unraveling 
a tangle of conflicting holdings in circuit law.

On the other hand, while I agree that the mere fact that an 
employment practice is subjective does not shield it from 
attacks under the disparate impact theory, my view of the 
problems this case presents is different enough from that of 
the majority that it is best to set forth in some detail both my 
summary of the facts and my analysis of the law with respect 
to those facts. My thesis, in a nutshell, is that the disparate 
impact theory is designed to be applied to certain types of 
cases only. The majority opinion, although not holding other­
wise, might unfortunately be read to suggest that the dispa­
rate treatment and disparate impact theories may be used 
interchangeably in any given fact situation. While this would 
read the opinion too broadly, it is certainly fair to say that the 
majority opinion provides no guidance in describing the cir­
cumstances to which each theory is applicable. This guidance



22 Atonio, et al. v. W ards Cove P acking Co.

is necessary to prevent the conversion of all, or substantially 
all, Title VII class actions into disparate impact cases.

I now turn to the facts which will be set out somewhat dif­
ferently than in the majority opinion.

I.

FACTS

The five defendant canneries are located in remote and 
widely separated areas of Alaska. They operate for a short 
period each year, during the summer salmon runs, and lie 
vacant for the remainder of the year.

The cannery operations begin in May or June, a few weeks 
before the anticipated fish run, with a period known as the 
preseason. The companies bring in workers to assemble the 
canning equipment, repair winter damage to the facilities, 
and prepare the cannery for the onset ot the canning season. 
Shortly before the fishing season, the cannery workers arrive. 
Cannery workers, who comprise the bulk of the summer work 
force, generally are unskilled individuals who staff the actual 
canning lines. These workers remain at the cannery as long as 
the salmon run lasts; they are guaranteed payment for a mini­
mum number of weeks if the run is shorter than usual. When 
the canning is completed, the cannery workers depart and the 
canneries are disassembled and winterized by postseason 
workers.

Salmon are extremely perishable and must be processed 
within a short time after being caught. Because the fish runs 
are of short duration, cannery work involves intense and long 
hours. The canning process proceeds as follows. Independent 
fishermen catch the salmon and turn them over to company- 
owned boats, which transport the fish from the fishing 
grounds to the canneries. Cannery workers eviscerate the fish, 
remove the eggs, clean the fish, and place them in cans. Next,



Atonio, et al. v. Wards Cove P acking Co. 23

the cannery workers cook the salmon under precise time and 
temperature requirements established by the Food and Drug 
Administration (FDA) and inspect the cans to ensure that 
proper seals are maintained on the top, bottom, and sides.

Because of their remote location, the canneries must be 
completely self-contained, employing individuals in a great 
variety of jobs. Machinists and engineers, for example, main­
tain the canning equipment. Quality control personnel con­
duct the FDA-required inspections and record-keeping. Boat 
crews operate transport boats. Other tasks require, for exam­
ple, cooks, carpenters, store-keepers, bookkeepers, and beach 
gangs for dock yard labor and construction. Because of the 
brevity of the salmon runs, most of the jobs are of short dura­
tion. The few permanent employees either staff the home 
offices in Seattle, Washington and Astoria, Oregon in the win­
ter, or maintain the winter shipyard in Seattle.

Another consequence of the canneries’ location in remote 
areas is that the companies hire the necessary employees from 
various areas—primarily Alaska and the Pacific Northwest— 
and transport them to and from the canneries each year. They 
provide housing and mess halls at the canneries throughout 
the season.

Most of the cannery worker jobs, which are unskilled, are 
held by minorities. Most of the higher-paying jobs are held by 
Caucasians. The plaintiffs presented statistical evidence dem­
onstrating the breadth of this disparity. Relying on this evi­
dence, they challenged the following hiring practices the 
canneries use in filling the higher-paying jobs at issue: (1) the 
use of separate hiring channels and word-of-mouth recruit­
ment for skilled workers; (2) nepotism; (3) rehire policies; and 
(4) the lack of objective job qualifications. They also alleged 
racial discrimination in the canneries’ messing and housing 
practices.

The district court evaluated all of the practices under the 
disparate treatment model; it found for the defendants, hold-



24 Atonio, et al. v . W ards Cove P acking Co.___________

ing that they had shown nondiscriminatory motivations for 
these practices. It also evaluated some of the practices, those 
it characterized as “objective,” under the disparate impact 
model; it found for the defendants under this analysis also.

The panel to which this case was assigned agreed with the 
district court that disparate impact analysis should be applied 
only to “objective” factors. Its conclusion was based on 
Heagney v. University o f Washington, 642 F.2d 1157 (9th Cir. 
1981), but conflicted with Wang v. Hoffman, 694 F.2d 1146 
(9th Cir. 1982). See Atonio v. Wards Cove Packing Co., 763 
F.2d 1120, 1132 & n.6 (9th Cir. 1985).

As already mentioned, we granted en banc review to 
address the circumstances under which it is appropriate to 
employ the disparate impact analysis. Part II of this opinion 
sets forth an analytic framework for determining when the 
disparate impact approach should be used. Part III applies 
that framework to the facts of this case.

II.

ANALYTIC FRAMEWORK

The relevant section of Title VII, 42 U.S.C. § 20Q0e- 
2(a)(2), provides:

It shall be an unlawful employment practice for an 
employer

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



Atonio, et al. v. Wards Cove Packing Co. 25

The Supreme Court’s interpretation of this provision has 
identified two separate theories of recovery: disparate treat­
ment and disparate impact. Put briefly, a plaintiff alleging 
disparate treatment must demonstrate intentional discrimi­
nation. See, e.g., International Bhd. o f Teamsters v. United 
States, 431 U.S. 324, 335 n.15 (1977). A disparate impact 
claim, on the other hand, does not require proof of discrimi­
natory intent. Instead, it attacks “employment practices that 
are facially neutral in their treatment of different groups but 
that in fact fall more harshly on one group than another.” Id. 
at 336 n.15.

The Supreme Court has not clearly articulated the types of 
cases to which each of these theories should be applied. In 
Teamsters, for example, the Court said that “[ejither theory 
may, of course, be applied to a particular set of facts.” Id. One 
could conclude from this comment that both theories were 
applicable to all Title VII claims without regard to their spe­
cific nature.

This conclusion, however, is plainly inconsistent with the 
Supreme Court’s disposition of Furnco Construction Corp. v. 
Waters, 438 U.S. 567 (1978). In that case, the Supreme Court 
expressly refused to apply disparate impact analysis. The 
plaintiffs were individual bricklayers who were not hired 
because they applied at the jobsite, rather than through the 
regular application process. The Supreme Court’s explana­
tion consisted of a footnote stating that the case was not simi­
lar to Griggs v. Duke Power Co., 401 U.S. 424 (1971) 
(evaluating standardized tests under disparate impact analy­
sis), Dothard v. Rawlinson, 433 U.S. 321 (1977) (evaluating 
height and weight requirements under disparate impact anal­
ysis), or Teamsters (a class-action disparate treatment case). 
See Furnco, 438 U.S. at 575 n.7.1

'Comprehension of the court’s treatment of the impact claim in Furnco 
is complicated by Justice Marshall’s explanation. He argues that the 
Court’s rejection of the impact claim was merely an affirmance of the cir-



26 Atonio, et al. v. Wards Cove Packing Co.

It should not be surprising that the lower courts have 
employed different explanations of this footnote in Furnco. 
Two basic explanations have emerged, one represented by 
Wang and the other by Heagney. The Heagney approach 
restricts the disparate impact analysis to objective practices; 
the Wang approach applies it to all practices.21 think both of 
these approaches ignore how the alleged practice functions. 
As a consequence, one is too broad and the other too narrow.

Moreover, the distinction between “objective” and 
“subjective” employment practices or criteria is not as clear 
as these cases suggest. A requirement, for example, that an 
applicant pass a qualifications test is “objective.” On the 
other hand, hiring on the basis of good looks and appearance 
is by no means entirely “subjective.” Specific aspects of these 
two criteria can be identified and to the extent so identified 
become “objective.” Only an employment practice resting 
entirely on personal whim and caprice can be said to be

cuit court’s affirmance of the district court’s rejection of that claim on the 
merits. 438 U.S. at 584-85 (Marshall, J., concurring in part, dissenting in 
part.) Because this explanation is not consistent with the explanation of the 
Court’s own opinion, I refuse to rely on it.

2The decisions in other circuits in fact reflect a more complicated situa­
tion, with a variety of different positions. It is fair to say, however, that 
some courts apply disparate impact analysis only to practices closely akin 
to the counting, measuring, and weighing evident from the existing 
Supreme Court cases. See, e.g., Carroll v. Sears, Roebuck & Co., 708 F.2d 
183, 188-89 (5th Cir. 1983) (Wisdom, J.) (refusing to apply disparate 
impact analysis to claims of discrimination in training, promotion, and 
classification of employees); Harris v. Ford Motor Co., 651 F.2d 609 (8th 
Cir. 1981) (per curiam) (refusing to apply disparate impact analysis to sys­
tem allowing firing based on evaluations of supervisors). Other courts apply 
disparate impact analysis to any identifiable practice whatsoever. See, e.g., 
Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 92-93 (6th Cir. 1982) (per 
curiam) (applying disparate impact analysis to system allowing rehiring 
based on opinions of foremen); Clark v. Chrysler Corp., 673 F.2d 921, 927 
(7th Cir.) (applying disparate impact analysis to word-of-mouth recruit­
ment and discriminatory selection of hiring channel), cert, denied, 459 U.S. 
873 (1982).



Atonio, et al. v. Wards Cove Packing Co. 27

wholly “subjective.” In short, “subjective” and “objective” 
are only the extremes of a continuum, like night and day. I 
believe they are inappropriate tools for defining the bounds of 
disparate impact and disparate treatment analysis. More­
over, even “subjective” practices, as the majority points out, 
have the same capacity to cloak discrimination that in Griggs 
led the Supreme Court to create disparate impact analysis.

I think the key to understanding the proper spheres of dis­
parate impact and disparate treatment analysis is found in 
the nature of the claims of discrimination. A brief recapitula­
tion of the nature of the two forms of analysis demonstrates 
this point. To establish a prima facie disparate impact case 
requires that the practice be identified, that there exists an 
impact adverse to a protected class, and that the practice 
caused the adverse impact.

Obviously, the burden of establishing this prima facie case 
will preclude certain claims from receiving disparate impact 
analysis. For example, the requirement that the plaintiffs 
identify a specific practice prevents plaintiffs from 
“launching] a wide ranging attack on the cumulative effect of 
a company’s employment practices.” Spaulding v. University 
o f Washington, 740 F.2d 686, 707 (9th Cir.) (quoting Pouncy 
v. Prudential Insurance Co. o f America, 668 F.2d 795, 800 
(5th Cir. 1982)), cert, denied, 105 S. Ct. 511 (1984). But c f 
Griffin v. Carlin, 755 F.2d 1516, 1523-25 (11th Cir. 1985) (ap­
plying disparate impact analysis to the end result of a hiring 
process, without requiring the plaintiffs to articulate which 
specific practices caused the impact in question). Absent this 
requirement, the disparate impact test would put on employ­
ers the burden of demonstrating the business necessity of 
each facet of their employment decisions, even if the plain­
tiffs could demonstrate no disparate impact caused by some 
of those facets. See Pouncy, 668 F.2d at 801. Accordingly, the 
analysis requires the plaintiff to identify some specific prac­
tice; the defendant must show the business necessity of that 
specific practice.



28 Atonio, et al. v. Wards Cove Packing Co.

The requirement of causation also prevents disparate 
impact analysis of certain claims. For example, a plaintiff s 
class consisting of children cannot state a cause of action 
against an employer merely because his recruiting practices 
designed to obtain quarry workers overlooked children. No 
significant number of children are qualified to be quarry 
workers. Because there are not a significant number of chil­
dren so qualified, the employer’s practices in recruiting 
quarry workers cannot be said to have caused any impact on 
the children. At a minimum, then, the causation element 
requires demonstration by the plaintiff that significant num­
bers of the plaintiff class are qualified for the job. See, e.g., 
Segar v. Smith, 738 F.2d 1249, 1274 (D.C. Cir. 1984), cert, 
denied, 105 S. Ct. 2357 (1985); Grant v. Bethlehem Steel 
Corp., 635 F.2d 1007, 1019 (2d Cir. 1980) (noting that some 
members of the plaintiff class were clearly qualified, despite 
the employers’ protestations to the contrary), cert, denied, 
452 U.S. 940 (1981 ).3

Once the plaintiff has established a prima facie case, the 
employer must either attack one of the three elements of the 
prima facie case or demonstrate that the practice is a 
“business necessity.” The latter can be shown only when the 
practice is job-related and serves to help identify the qualities 
necessary to perform the work satisfactorily. See, e.g., 
Dothard v. Rawlinson, 433 U.S. 321, 332 n,14 (1977); Griggs 
v. Duke Power Co., 401 U.S. 424, 431 (1971).

3I do not mean to say that plaintiffs must introduce statistical proof 
based on qualifications of applicants who have been rejected for the job. 
Obviously, the applicant pool itself could fail to represent adequately the 
number of qualified minorities because of discriminatory recruitment prac­
tices. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 330 (1977). Those dis­
criminatory recruitment practices themselves are subject to disparate 
impact analysis. But it is important to remember that a prima facie case 
that the recruitment practices in question have caused a disparate impact 
requires demonstration of a significant number of qualified persons over­
looked because of the challenged practices.



Atonio, et al. v. W ards Cove Packing Co. 29

The disparate treatment structure is quite different. There 
the prima facie case typically requires that the aggrieved show 
(1) that he is a member of a protected class, (2) that he 
applied, (3) that he was rejected, and (4) that after the rejec­
tion the position remained open and applicants having quali­
fications similar to the aggrieved’s continued to be accepted. 
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 
(1973). The burden then is on the employer to show that a 
non-discriminatory reason explains his conduct. See id. at 
802-03. Thereafter, the aggrieved may attempt to show that 
the preferred explanation is pretextual. See id. at 804. The 
ultimate burden of persuasion remains on the aggrieved to 
show discriminatory treatment. Texas Dept, o f  Community 
Affairs v. Burdine, 450 U.S. 248, 253 (1981).

The Supreme Court cases to date have applied disparate 
impact analysis only to practices akin to counting, weighing, 
and measuring, an even narrower limitation than the 
“objective”/“subjective” distinction some courts have 
adopted. I think the appropriate distinction can be more 
accurately delineated. As I see it, disparate impact analysis 
should be applied whenever the plaintiff claims that the 
employer has articulated an unnecessary practice that makes 
the plaintiff’s true qualifications irrelevant. This differs from 
a treatment case, in which the plaintiff claims that, knowing 
the plaintiff’s qualifications, the employer refused to hire him 
because of race or some other impermissible characteristic. A 
showing of discriminatory intent is extremely difficult, if not 
impossible, when an employer asserts that he did not hire an 
individual because of a facially neutral requirement. Faced 
with this reality the Court in Griggs held that employers must 
justify such requirements under the business necessity test.

The crucial issue in any Title VII case is into which cate­
gory the employer’s alleged wrong properly fits. Has the 
employer allegedly failed by reason of some facially neutral 
employment practice to ascertain the qualifications of a pro­
tected class, or has the employer ignored the known qualifica-



30 Atonio, et al. v. Wards Cove Packing Co.

tions for a discriminatory reason? The nature of the wrong as 
pleaded and proved determines the nature and extent of the 
plaintiffs burden. Because it would be futile in an impact case 
to require the plaintiff to show discriminatory intent, the 
plaintiffs burden principally is one of showing the “impact” 
of the practice. Proof of the “impact” goes far toward estab­
lishing a failure to consider the qualifications of a substantial 
number of the protected class. At that point the employer’s 
response logically can only be that the practice serves to ascer­
tain a relevant job-related qualification; that is, the practice 
rests on business necessity.

This burden of showing a business necessity has no place if 
the plaintiffs grievance is that his qualifications, although 
available to and known by the defendant employer, have been 
ignored because of a discriminatory motive. To treat this as 
an impact case rather than a treatment case would relieve the 
plaintiff of the burden of establishing a discriminatory intent 
and impose on the defendant the burden of demonstrating 
that what he did was done because of business necessity. In 
the context of a treatment case, this would amount to impos­
ing the burden on the defendant to prove that he did not dis­
criminate.

Thus, it is necessary to determine from the pleadings and 
the evidence the nature of each claim the plaintiff makes. 
Although it is true that neither impact nor treatment analysis 
can be tied irrevocably to a specific category of practices, it is 
also true that they properly cannot be employed interchange­
ably. It follows that in this case each claim must be analyzed 
to determine which type of analysis, impact or treatment, is 
proper. An employee, alleging only that the employer’s failure 
to hire him is based on race or religion, cannot force the 
employer to prove that his failure was due to business neces­
sity. This remains true even if the plaintiff' shows that others 
of plaintiffs race or religion also had not been hired. The 
employee has alleged a treatment case and the burdens are 
allocated as McDonnell Douglas and Burdine indicate. On the



Atonio, et al. v. W ards Cove Packing Co. 31

other hand, such an allocation is entirely inappropriate where 
the allegation is that the test employed by the employer dis­
qualifies all applicants other than Protestants. This pleads an 
impact case.

Complications arise when the practices lend themselves to 
being alleged as the basis of either a treatment or impact case. 
Equally complicated are situations in which multiple prac­
tices are employed and some properly suggest impact analysis 
while others treatment analysis. In such situations, a court 
should evaluate each practice separately, applying the appro­
priate analysis to each practice. Guided by this analysis, I 
now proceed to examine the district court’s treatment of the 
plaintiffs claims in this case.4

{Text continued on page 33)

4I acknowledge that this position has not been articulated in the deci­
sions of other courts that have examined similar questions. A brief survey 
of the law in other circuits reveals, however, that most of the decisions in 
this area are consistent with the approach I suggest.

The Second Circuit has applied disparate impact analysis to employment 
systems that relied on subjective employee evaluations. Zahorik v. Cornell 
Univ., 729 F.2d 85, 95-96 (2d Cir. 1984). Under my approach, such deci­
sions would often be subject to the disparate impact analysis.

The Third Circuit applied disparate impact to invalidate a test that par­
tially based promotions on administrative skills. In that case, the employer 
had a practice of assigning whites to jobs that developed the administrative 
skills tested for by the exam. Accordingly, reliance on the administrative 
skills was improper. See Wilmore v. City o f Wilmington, 699 F.2d 667, 675 
(3d Cir. 1983).

None of the Fourth Circuit decisions commonly cited in this area seems 
to have dealt specifically with the objective/subjective distinction. For 
instance, in EEOC v. Federal Reserve Bank, 698 F.2d 633, 638-39 (4th Cir. 
1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 
U.S. 867 (1984), the court flatly stated that disparate impact analysis could 
be applied only to objective practices. In that case, however, the plaintiffs 
apparently identified no specific practice; instead, they seem to have been 
challenging the entire employment process. I would reach the same result, 
refusing to apply disparate impact unless the plaintiffs can identify a spe­
cific practice that causes a disparate impact. Similarly, Pope v. City o f 
Hickory, 679 F.2d 20 (4th Cir. 1982), was a disparate treatment case; the



32 Atonio, et al. v. W ards Cove Packing Co.

plaintiffs alleged discrimination in general, not that it was implemented 
through some specific practice. Brown v. Gaston County Dyeing Machine 
Co., 457 F.2d 1377 (4th Cir.), cert, denied, 409 U.S. 982 (1972), failed to 
distinguish between the impact and treatment analysis at all. Robinson v. 
Lorillard Corp., 444 F.2d 791 (4th Cir.), cert, dismissed pursuant to Sup. Ct. 
R. 60, 404 U.S. 1006 (1971), is actually precedent for application of dispa­
rate impact analysis to more subjective systems, despite the flat statement 
in EEOC. In Robinson, the Fourth Circuit applied disparate impact to use 
of a seniority system that was at least partially subjective.

The decisions in the Fifth Circuit display a similar lack of resolution in 
drawing a line between objective and subjective practices. Several panels of 
that circuit have thought that the law of the circuit precluded application 
of the disparate impact analysis to subjective factors, relying on Pouncy v. 
Prudential Ins. Co. o f Am., 668 F.2d 795 (5th Cir. 1982). See Vuyanich v. 
Republic Nat’lBank, 723 F.2d 1195,1201-02 (5th Cir.), cert, denied, 105 S. 
Ct. 567 (1984); Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188-89 (5th 
Cir. 1983) (Wisdom, J.); Pegues v. Mississippi State Employment Serv., 699 
F.2d 760, 764 (5th Cir.), cert, denied, 464 U.S. 991 (1983). But at least one 
recent Fifth Circuit panel noted Pouncy and went on to apply disparate 
impact analysis to a system that based promotions on the subjective evalua­
tions of foremen. See Page v. U.S. Indus., 726 F.2d 1038, 1045-46 (5th Cir. 
1984). The clarity of the ostensible rule of Pouncy is also not evident from 
that opinion itself. In fact, the opinion had alternative holdings: first, that 
the plaintiffs had not established that the practices caused the impact; and, 
second, that the practice was not susceptible to the disparate impact analy­
sis because of its subjectivity. 668 F.2d at 800-01.1 also note that in none 
of the Fifth Circuit cases following Pouncy would plaintiffs clearly have pre­
vailed under my disparate impact analysis anyway. See Vuyanich (plaintiff 
apparently failed to identify a specific practice); Carroll (apparently the 
plaintiffs failed to show causation); Pegues (practice not by an employer, 
but by a state employee commission).

In the Sixth Circuit, disparate impact analysis has been applied in cases 
challenging rehiring based on unguided opinions of foremen. See Rowe v. 
Cleveland Pneumatic Co., 690 F.2d 88, 92-93 (6th Cir. 1982) (per curiam).

The Seventh Circuit, in a case strikingly similar to this one, applied dis­
parate impact analysis, as I do here, to word-of-mouth recruitment and 
selection of hiring channels. See Clark v. Chrysler Corp., 673 F.2d 921, 927 
(7th Cir.), cert, denied, 459 U.S. 873 (1982).

In the Eighth Circuit, I do find cases that are not reconcilable with my 
approach. That circuit has maintained a firm refusal to apply disparate 
impact analysis to what it characterizes as “subjective” practices. See, e.g.,



Atonio, et al. v. W ards Cove Packing Co. 33

III.

APPLICATION TO THIS CASE

A. Separate Hiring Channels and Word-of-Mouth Recruit­
ment

The first practice the plaintiffs challenge is the use of sepa­
rate hiring channels and word-of-mouth recruitment for can­
nery workers and for the skilled at-issue jobs. The use of

Gilbert v. Little Rock, 722 F.2d 1390 (8th Cir. 1983) (applying treatment 
analysis to a system relying on individual discretion), cert, denied, 466 U.S. 
972 (1984); Talley v. United States Postal Serv., 720 F.2d 505, 506-07 (8th 
Cir. 1983) (refusing to apply impact analysis), cert, denied, 466 U.S. 952 
(1984); Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir. 1981) (per curiam) 
(same). For the reasons articulated in the text, I think these cases are incor­
rect. I note that this footnote demonstrates that my approach is consistent 
with the great majority of existing authority.

The Tenth Circuit has uniformly applied disparate impact analysis to 
practices that use subjectivity to cloak discrimination. See, e.g., Hawkins v. 
Bounds, 752 F.2d 500, 503 (10th Cir. 1985); Lasso v. Woodmen o f the 
World Life Ins. Co., 741 F.2d 1241, 1245 (10th Cir. 1984), cert, denied, 105 
S. Ct. 2320 (1985); Coe v. Yellow Freight Sys., 646 F.2d 444, 450-51 (10th 
Cir. 1981) (dicta); Williams v. Colorado Springs, Colo. School Dist. No. 11, 
641 F.2d 835 (10th Cir. 1981).

I have already noted the inconsistency of one recent Eleventh Circuit 
decision with my opinion. See Griffin v. Carlin, 755 F.2d 1516, 1523-25 
(11th Cir. 1985) (applying disparate impact analysis to the end result of a 
hiring process without requiring the plaintiffs to identify a particular prac­
tice). That disagreement as to the requirements of the prima facie case does 
not extend, however, to the scope of the impact analysis itself. I would 
apply impact analysis to the facts of Griffin, only reaching a different result.

Finally, the D.C. Circuit has recently articulated a complicated position, 
not completely in accord with either of the common positions exhibited in 
the other circuits. See Segar v. Smith, 738 F.2d 1249, 1270-72 (D.C. Cir. 
1984), cert, denied, 105 S. Ct. 2357 (1985). In that opinion, the panel dis­
cussed the following scenario. After a plaintiff establishes a prima facie 
treatment case, defendants frequently advance an employment practice as 
a legitimate reason for their hiring decisions. According to the Segar panel,



34 Atonio, et al. v. Wards Cove Packing Co.

separate hiring channels can insulate an employer’s decision­
making process from any need to consider the qualifications 
of unwanted minorities. Accordingly, disparate impact analy­
sis of this claim is appropriate.5

But this does not mean that Atonio’s claim must prevail. As 
part of his prima facie case, he must establish causation. In 
turn, that element requires proof that a substantial number of 
the class possess the qualifications legitimately required for 
the skilled jobs. The district court did not make any findings 
on this point. Because the record is unclear, I would remand 
for further factfinding on this point. See Icicle Seafoods, Inc. 
v. Worthington, 106 S. Ct. _ , _  (1986). For each job that the 
district court finds a substantial number of qualified plain­
tiffs, the district court must evaluate the business necessity of 
separate hiring channels.

B. Nepotism

The second hiring practice the employees challenge is nep­
otism. The district court subjected this claim to impact analy­
sis pursuant to our decision in Bonilla v. Oakland Scavenger 
Co., 697 F.2d 1297, 1303-04 (9th Cir. 1983), cert, denied, 467 
U.S. 1251 (1984). It rejected the claim, finding that the indi-

the employers’ articulation of that practice as a defense to the treatment 
case establishes a prima facie impact case against the practice in question. 
Accordingly, the defendants must defend the practice under the business 
necessity test required by disparate impact analysis.

5I recognize that this claim is quite similar to the claim presented in 
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978), a claim to which 
the Court refused to apply disparate impact analysis, id. at 575 & n.7. In 
that case, the Court emphasized the “importance of selecting people whose 
capability has been demonstrated to defendant.” Id. at 574 (quoting the 
lower court opinion). If this were treated as a job qualification, under my 
analysis the impact analysis would apply, but the plaintiffs would have 
failed to establish a prima facie case because they were not qualified. Most 
importantly, however, the Furnco footnote is just not specific enough to 
resolve the question before us. I do not think it is useful to search at length 
for an explanation for the Furnco result the Court declined to give us.



Atonio, et al. v. Wards Cove Packing Co. 35

viduals were hired because of their abilities rather than their 
relation to the employers. Excerpt of Record (E.R.) at 324-25. 
I might construe this as a finding that the canneries had no 
practice of nepotism, apart from their admitted practice of 
word-of-mouth recruitment. If this were so, the plaintiffs’ 
challenge would fail. Because the appropriate legal standard 
was less than clear at the time the district court considered 
this case, I would remand this claim back to that court for fur­
ther consideration.

C. Rehire Policies

The third practice the employees challenge is the rehire pol­
icies of the employers. Like the practices discussed above, 
rehire policies insulate the employer from the need to con­
sider the applications of possibly qualified minorities. The 
district court properly applied disparate impact analysis to 
this practice, but rejected the employees’ challenge because it 
found the practice was justified by business necessity, viz. the 
short season and the dangers of the industry. E.R. at 334. 
Because this finding is not clearly erroneous, I would affirm 
the district court’s disposition of this claim without address­
ing other aspects of it.

D. Lack o f Objective Employment Criteria

Next, the employees challenge the employers’ lack of objec­
tive employment criteria. The district court found as a fact 
that the employers did have objective criteria. The defen­
dants’ pretrial order listed a number of qualifications 
assertedly necessary for the jobs in question. After hearing 
evidence, the court explicitly found that these qualifications 
were “reasonably required for successful performance.” E.R. 
at 299. Although some evidence in the record suggests that 
these qualifications were not applied evenhandedly, discrimi­
nation in  application raises a treatment claim. It is only the 
choice of qualifications that is subject to disparate impact 
analysis. I cannot say that the district court’s decision was



36 Atonio, et al. v. W ards Cove Packing Co.

clearly erroneous. Accordingly, I would affirm its disposition 
of this claim.

E. Housing and Messing Practices

Finally, the employees allege racial discrimination in the 
canneries’ housing and messing practices. I do not think this 
claim is properly susceptible to disparate impact analysis. In 
no way do these practices enable an employer to reject pro­
spective minority employees without considering their quali­
fications. The only Title VII challenge to these practices can 
be under the disparate treatment theory. The district court’s 
rejection of the claim on that theory, E.R. at 336-37, was not 
clearly erroneous. Accordingly, I would affirm the district 
court’s treatment of this claim.

In summary, I would affirm the district court’s dismissal of 
the plaintiffs’ claims regarding rehire policies, subjective 
employment criteria, and racial discrimination in housing 
and messing practices. I would reverse the district court’s dis­
missal of the separate hiring channels and nepotism claims 
and would remand for further factfinding.

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