Watson v. Fort Worth Bank and Trust Brief Amici Curiae
Public Court Documents
October 6, 1986

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Brief Collection, LDF Court Filings. Watson v. Fort Worth Bank and Trust Brief Amici Curiae, 1986. e6a6e2b5-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c2c09ab8-b9bb-4abb-b476-1d776cb22ae4/watson-v-fort-worth-bank-and-trust-brief-amici-curiae. Accessed July 09, 2025.
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\ 1 l 1 9 4 5 534 m No. 86-0139 -------------- o-------------- - In The Supreme Court of the United States October Terra, 1986 -------------- o---------------- - CLARA WATSON, Petitioner, v. FORT WORTH BANK & TRUST, Respondent. o ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT --------------o-------------- — BRIEF FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC., THE EMPLOYMENT LAW CENTER, AND THE CENTER FOR LAW IN THE PUBLIC INTEREST AS AMICI CURIAE --------------o------------------ INTEREST OF AMICI CURIAE Amicus NAACP Legul Defense and Educational Fund, Inc. is a New York nonprofit organization that hue liti gated numerous enses on behalf of black persons seeking vindication of their civil rights, including Griggs v. Duke Power Co., 401 U.S. 424 (1971). Amicus Mexican Ameri can Legal Defense and Educational Fund, headquartered in Los Angeles, is a national civil rights organization that has brought various lawsuits on behalf of Latinos subject ^ to discrimination in employment, public education, voting rights and other areas of public life. Amicus Employment Law Center, a project of the Legal Aid Society of San Francisco, has represented women and minorities in nu- 1 535 2 morons employment discrimination cases, including Cali fornia Federal Savings and Loan Association v. Guerra, — U.S. —, 107 S.Ut. fJB.'t (11)87). Amicus Center for Law in the Public Interest is a non-profit corporation located in Los Angeles that for many years has prosecuted civil lights and public interest lawsuits, including employment discrimination class actions on behalf of women and minor ities. Letters from the parlies consenting to the filing of this brief have been filed with the Court. --------------o-------------- INTRODUCTION The Court granted certiorari to consider whether an employer’s selection or promotion practices may lie in sulated from disparate impact scrutiny under Title VII of the Civil Rights Act of 19(>4, 42 U.S.C. ^ 2000e to 2000c- 17 (1982 ed. & Supp. Ill), simply bccuuse they are subjec tive. Amici will uddress the merits of the issue so as to respond to the arguments made by tbe United States in its amicus curiuo brief supporting the petition for certiorari. Preliminarily, however, we have grave doubts that this important legal issue is properly presented by the case now before the Court. The record reflects that the peti tioner relied upon disparate treatment analysis in the trial court, and could not prove a case of denial of promotions based on disparate impact.* 1 * 1'Jvcn if this Court were to 'The evidence presented al trial was typical of a disparate treatment case. Petitioner testified as to her qualifications and the fact that she had applied for three promotions; the defen dant presented evidence that purported to establish legitimate, non-discriminatory reasons for each promotion action. Those reasons focused on the relative qualifications of the persons selected and the legitimacy of the employer's actions. Evidence was also presented showing a low hire rate and slower promo tion rate for blacks. The district court found—and those findings are not chal lenged here— that throughout the relevant lime period, the re spondent employed a total of only 15 blacks, and that at any one time, the number of blacks employed never exceeded eight (Continued on following page) 536 3 hold that disparate impact analysis should be applied to subjective employment practices, ns we urge below, the petitioner would be unable to establish a violation of Title VII on that basis. Accordingly, it is appropriate to dis miss certiorari ns improvidcnlly granted. Should the Court reach the merits in this—or another -case , amici urge the Court to reject the government’s proposed exemption for subjective employment practices.1 (Continued from previous page) The particular complaint of the plaintiff is that she was dis- cnmmatorily denied promotions on three occasions The dis- l" c{ c” urt. fV.rl êr found ‘hat, in addition to plaintiff, only one other black had applied for promotions given to whites Thus blacks applied for and were denied a total of five promotions.' Memorandum Opinion of District Court at 13 (Nov. 21 1984)- Testimony of Sylvia Harden, Tr. Vol. Ill, at 98-99. Such num bers do not permit a showing of disparate impact, since they cannot establish any pattern of the effect of an employment practice. The government agrees. See Brief for the United States as Amicus Curiae, at 20 n. 16. J1 he line between subjective and objective employment practices is not as bright as the government suggests. |A]lmost all criteria necessarily have both subjective and obiective elements. For example, while the requirement o a certain lest 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 an- pearance in fact include "objective" factors. Thus the terms represent extremes on a continuum . . . . Atonio v. Wards Cove Packing Co., 810 F.2d 1477 1485 fmh Cir. 1987) (en banc). In the words of one commentator "fm lost employment decisions contain some element of sub ectivitv" Comment Applying Disparate Impact Theory to Subjective Em ployee Selection Procedures, 20 Loy. L A L. Rev. 375, 400 (1987) See also_ I amber, Discretionary Decisionmaking: The Applica tion of Title VII c Disparate Impart Theory, 1985 U III F Rev 869. 874 n.14 ("In a sense all decisions-Tmm the p e hunch to the choice of using a dearlv defined objective rule-involve discretion. ). Cl. Nation v. Winn-Dixie Stores Inc 567 F 5nnn 917 1005 n 20 (N O. C . l ("M l. is especially £ The context of promotions to formulate employer derisionmakinp cnteria that are romoletely free of subjectivity."), ail’d on reli'e 570 F Supp 1473 (N.D. Ga. 1983). g' 537 4 Such an exemption ia directly contrary to Title V II’a plain meaning, the prior decisions of this Court, specific legis lative history, tin; Justice Department’s own guidelines on employee selection, and the prophyluclic purpose of the statute. The government would permit nn employer to make personnel decisions on tin; basis of “ subjective” criteria— <‘ven if those criteria are “ unrelated to measuring job capability,” Griggs v. Duke l'ower Co., 401 U.S. 424, 4,'12 (1971), and result in I lie disproportionate exclusion of minorities and/or women so long ns those delusions are made in good faith. The alternative, it is argued, would he to interfere with the employer’s management preroga tives. See Brief for the United Slates as Amicus Curiae at 14-17. Yet management prerogatives are necessarily cir cumscribed by Title VII’s essential purpose of “ achiev |ing] cqunlily of employment o pportun ity |.” Griggs, 401 IJ.S. at 429. They cannot he permitted to shield dis crimination, “ subtle or otherwise.” McDonnell Dougins Corp. v. Green, 411 U S. 792, 801 (1978). Accordingly, this Court has consistently rejected arguments founded on the notion of employer discretion where that discretion would he exercised in n manner contrary to Title V II’s prohibi tory pronouncements. In llishon v. King <(J Spalding, 407 IJ.S. G9, 78 (1984), for example, the Court held that Title VII applied to the partnership decisions of a law firm, not withstanding the possible infringement on that firm’s rights of expression and association. Cf. id. at 80 n.4 (Powell, J., concurring) (“ [Ij]aws that bnn discrimination . . . may impede the exercise of jiersonal judgment . . . . ” ). And last term, the Court rejected government arguments based on policy considerations relating to the prerogatives of unions. Goodman v. Lukcns Steel Go., — II.S. —, - , 107 S.Ct. 2017, 2024-25 (1987).J Whether or not such pre rogatives are diminished by the application of disparate 3 35ee Brief (or ihe United Stales as Amicus Curiae at 19-24, Goodman v. Lukens Steel Co., 107 S.Ct. 2617 (1907). 538 5 impact analysis to subjective employment practices, “ Con gress has made the choice, and it is not for us to disturb it ” Chandler v. Houdcbusli, 425 U.S. 840, 804 (1970) (re jecting government’s proffered interpretation of Title VII in face of plain meaning of statute and its legislative his tory). -------------- o— ———— SUMMARY OF ARGUMENT “ A disparate impact claim reflects the language o f 1 § 703(a)(2),” Connecticut v. Teal, 457 U.S. 440, 448 (1982). I h(> plain terms of the statute provide absolutely no basiB for exempting the entire category of subjective employ ment practices from the scope of $ 703(a) (2). Had Con gress intended to exempt subjective criteria, it well knew how to do so. See llishon v. King <t! Spalding, 407 U.S. 09, 77-78 (1984) (“ When Congress wanted to grant an employer . . . immunity, it expressly diil so.” ). The legislative history of the 1972 amendments to Title VII demonstrates that Congress ratified and en dorsed the Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and contemplated its application to all employment practices, including subjective criteria, hav ing a discriminatory impact on minorities and women. In particular, Congress specifically indicated, with respect to the federal government’s personnel system, that Griggs applied to its subjective selection criteria. The adminis trative regulations issued by the agencies charged with enforcement responsibility confirm that Congress intended the disparate impact analysis to apply to “ the full rungo of assessment techniques from traditional paper and pen cil tests . . . through informal or casual interviews and un scored application forms.” 29 C.h’.Ii. $ 1007.10Q (198G). Limiting $ 703(a)(2) disparate impact analysis to ob jective criteria would frustrate Title V II’s primary goal of “ «<:l>iev(ing] equality of employment opportunities.” Griggs, 401 U.S. at 429. Moreover, the exclusion of sub jective practices from disparate impact analysis would 539 6 make employers less inclined to ‘‘ ‘self-examine and self- evaluate [their] employment practices,’ ” Albemarle Paper Co. v. jMoody, 422 U S. 405, 418 (1975) (quoting United States v. N.f,. Industries, 479 F.2d 354, 37!) (Hlh Fir. 1973)), as contemplated by Title VII. ARGUMENT The government would exempt from disparate impact analysis all practices and procedures of n subjective nature —i.e., discretionary selection devices such ns evaluative interviews, performance appraisals, and essay examina tions. Application of the disparate impact analysis would he li mi ted to objective criteria—i.e., noil-discretionary se lection devices such as height and weight requirements, see Dothard v. Hawlinson, 433 IJ.iS. 321, 324 (1977), me chanically scored intelligence tests, (Iriggs v. Duke Power Co., 401 U.S. 424, 427-28 (197.1 ), and diploma requirements, id* Accordingly, the government would make intent the Bole focus of most Title VII litigation. Sec sujira note 2. Hut just like their non discretionary counterparts, discre tionary selection criteria can “ opernte as ‘built-in head winds’ for minority groups (and women),” (Iriggs, 401 U.S. at 432, even in the absence of discriminatory intent. See infra at 24-25.5 Whether an employment practice is ob jective or subjective should not and cannot ‘‘provide! u line *Ct. W. Cascio, Applied Psychology in Personnel Manage ment 129 (2d ed. 1902) ("The method of scoring a test may be objective or non-objective. In the former case, there are fixed, impersonal standards for scoring . . . . On the other hand, the process of scoring essay tests and certain types of personality inventories . . . may be quite subjective . . . ."); D. Baldus & ). Cole, Statistical Proof of Discrimination § 1.23 (1900 & 1906 Supp.) (distinguishing between "nondiscrelionary criteria" and criteria that are "discretionarily . . . applied"). Hut see supra note 2. ’ Under the government's proposed exemption for subjec tive criteria, a non-discretionary requirement of supervisory ex perience might be shielded simply by taking that experience into account through a discretionary requirement of "leadership" ability. See infra at 26. 540 7 of demarcation to guide courts in choosing the appropriate analytic tool in a Title VII discrimination case.” Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1485 (9th Cir. 1087) (cm banc), 1 THE LANGUAGE OF TITLE VII SUPPORTS THE APPLICATION OF DISPARATE IMPACT AN ALYSIS TO SUBJECTIVE CRITERIA As the Court noted in Connecticut v. Teal, 457 U.S. 440, 448 (1982): “ A disparate-impact claim reflects the language of $ 703(a)(2).” Nothing in the statute can be read to exclude subjective employment practices from that section’s reach. A. Section 703(a)(2) Is a Crucial Element of Title VII’s Comprehensive Enforcement Scheme The two subparts of % 703(a) reflect the intent of Con gress to proscribe ‘‘not only overt discrimination but also practices that are fair in form, but discriminatory in oper ation.” (Iriggs, 401 U.S. at 431. It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms conditions, or privileges of employment, beenuse of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any wny 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. 42 U fS C. $ 2000e 2(a). Section 703(a)(2) is concerned with ‘‘the consequences of employment practices,” (Iriggs 401 U.S. at 432 (emphasis in original), for which disparate’ impact analysis is appropriate. The § 703(a) enforcement scheme evidences no intent to restrict a plaintiff to subpart ( I ) as an exclusive remedy 541 8 for any category of employment practices. Section 70.1(a) is a comprehensive framework, embracing all forms of employment discrimination by providing overlapping guar antees against both the overt discrimination to which $703 (a)(1) is primarily directed,6 as well as tbe denial of equal employment “ opportunities” with which $ 703(a)(2) is concerned, Teal, 457 U S. at 440; Griggs, 402 U.S. at 431. B. Section 703(a)(2) Draws No Distinctions Among Different Employment Practices Section 703(a)(2), by its terms, prohibits practices that “ limit, segregate, or classify . . . employees or appli cants . . . iti any way” so ns to deprive an individual of employment opportunities on the basis of race, sex, oi some other protected characteristic. 42 U.S.C. $ 2000e-2 (a)(2) (emphasis added). It nowhere suggests that sub jective practices should he exempted, and indeed, diaws no distinction between objective and subjective employ ment criteria. Accordingly, the government’s attempt to draw such a distinction should he rejected: |T |he plain, obvious and rational meaning of a statute is always to bo preferred to any curious, narrow, hidden sense that nothing hut the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would dis cover.’ ” Chandler v. llovdebush, 425 U.S. at H4H (quoting Lynch v. Alworth-Stephens Co., 2G7 U.S. 3G4, 370 (1025)). 'Pile most natural reading of § 703(a)(2) is that all em ployment practices arc covered by its broad prohibition and may come under disparate impact scrutiny. As this 6A violation of § 703(a)(1) may also he established by show ing that a practice is facially discriminatory. See City of Los Angeles v Manhart, 435 U.S. 702 (1978); Phillips v. Mailin Mari etta Corp., 400 U.S. 542 (1971). Several lower courts have held ' that disparate impact challenges may also he brought under § 703(a)(1). See, e g., Colby v. 1C Penney Co., 811 F.2d 1119 1127 (7th Cir. 1987); Wambheim v. 1C. Penney C o , 705 F 2d 1492 1494 (9lh Cir. 1983), cert, denied, 467 U.S. 1255 (1984); cl Nashville Gas Co v. Salty, 434 U.S. 136, 144 (1977) (1 ho Court "need not decide whether . . . it is necessary to prove intent to establish a prima facie violation of § 703(a)(1) "). 542 9 Court noted in Franks v. Boivman Transportation Co., 424 U.S. 747, 703 (197G) (emphasis added): “ Congress in tended to prohibit all practices in whatever form which create inequality in employment opportunity due to dis crimination on the basis of race, religion, sex, or national origin.” 0. The Asserted Exemption From $ 703(a) (2) Is Found Nowhere in the Language of Title VII, and Must Be Rejected The government would exempt a whole category of employment practices from § 703(a) (2) ’s coverage, though no such exemption appears in the language of that section or the other provisions of Title VII. That absence of text ual support is telling: “ When Congress wanted to grant an . . . immunity, it expressly did so.” llishon v. King & Spalding, 4G7 U.S. G9, 77-78 (1984) (rejecting assertion of immunity for partnership decisions); In l’l Bhd. of Team sters v. United States, 431 U.S. 324, 349 (1977) (“ Were it not for $ 703(h), the seniority system in this case would seem to fall under (lie Griggs rationale.” ). For example, Congress Bpecificnlly exempted the use of bona fide occupational qualifications based on religion, sex or national origin, $ 703(e)(1), 42 U.S.C. $ 2000e-2(e) (1), see Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971); bona fide seniority or merit systems, $ 703(h), 42 U.S.C. § 2000c-2(h), see Teamsters, 431 U.S. at 350 5G (exemption applying to ■§ 703(a)(2) cases only); ability tests “ not designed, intended or used to discriminate,” $ 703(h), 42 U.S.C. § 2000c-2(h), see Griggs, 401 U.S. at 433-36; and certain preferential treatment of Indians, § 703(i), 42 U.S.C. ■$ 2000e 2(i), sec Morton v. Mancari, 417 U.S. 535, 545 (1974). Congress also provided express exemptions for the employment practices of Indian tribes and certain agencies of the District of Columbia, § 701(h) (1), 42 U.S.C. § 2000e(b)(l); small businesses nnd bona fide private membership clubs, $ 701(h)(2), 42 U.S.C. $ 2000e(h) (2); certain religious organizations, § 702, 42 U.S.C. §2000e-l; and certnin religious educational insti tutions, $ 703(e) (2), 42 U.S.C. § 2000e-2(e) (2). 543 10 Here, tlie government would liuvo this Court create— where Congress did not—a § 703(a)(2) exemption for sub jective employment practices and exclude them from dis parate impact scrutiny. Hecuuse tliut usserted exemption falls outside the express language of Title VII, however, it must he rejected. Sec llishon, 407 U.H. at 77-78. II. THE COURT’S DECISIONS SUPPORT APPLICA TION OF DISPARATE IMPACT ANALYSIS TO SUBJECTIVE CRITERIA This Court’s dicisions are consistent with the above- proffered construction of $ 703(a)(2). In Albemarle Taper Co. v. Moody, 422 U.S. 405, 432-33 (1075), the Court ac knowledged difficulty in determining whether subjective appraisals, executed ns part of a validation study, had measured job-related ability. The same concern exists when such appraisals constitute the employment practice being challenged. Implicit in the Court’s opinion is the recognition thnt, notwithstanding a lack of discriminatory intent, minorities and women might be adversely affected by discretionary practices that do not closely relate to job capability. While the Court has not specifically discussed the ap plication of disparate impact analysis to subjective employ ment practices, it has never excluded any practice from the scope of $ 703(a)(2).7 * Moreover, the Court has eon- 7Those practices "clearly fall[ ing] within the literal lan guage of § 703(a)(2)," Tea/, 457 U.S. at 440, include written examinations, Albemarle, 422 U.S. at 425; Griggs, 401 U.S. at 433, educational requirements, id., height and weight require ments, Dothard, 433 U.S. at 328-29, a policy against employing persons who use narcotic drugs, New York City Transit Authority v Beazer, 440 U.S. 568, 584-87 (1979), and a residual category of practices that perpetuate the effects of prior discrimination, Teamsters, 431 U.S. at 349 ("One kind of practice 'fair in form, but discriminatory in operation' is that which perpetuates the effects of discrimination "). Of course, within such a residual category, one would expect to find subjective, as well as ob jective employment practices. See Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 (4th C ir) (" | e jlusive [and] purely subjective standards" may effectively perpetuate past discrimination), cert, denied, 409 U.S. 982 (1972) 544 11 sistently spoken in broad-brush terms such as “ practices,” “ criteria,” and “ barriers”—terms that clearly encompass both subjective and objective practices—in discussing and applying the disparate impact theory.* That subjective practices are susceptible to challenge under the disparate treatment analysis of $ 703(a)(1) does not mean that they ure not susceptible to challenge under the disparate impact analysis of $ 703(u) (2). As the Court acknowledged in Teamsters, 431 U.S. at 335 n.15, “ [ejither theory may, of course, be applied to a particular set of . facts.” An objective selection criterion may be discrim inatory either because its adoption is traceable to a dis criminatory motive,9 or because the practice has an un justified discriminatory effect. The some is true for a sub jective selection criterion. The government, without men tioning Teamsters, argues tliut this Court expressly de- *5ee, eg ., Griggs, 401 U.S. at 430 ("practices, procedures, or tests"); id. at 431 ("criteria for employment"); id. at 432 ("any given requirement"); Dothard, 433 U.S. at 328 ("arbitrary barrier to equal employment opportunity"); Beazer, 440 U.S. at 584 ("an employment practice nas the effect of denying . . . equal access to employment opportunities"); Teal, 457 U.S. at 448 ("nonjob-related barrier"). Cl. General Tel. Co. ol South west v. Falcon, 457 U.S. 147, 159 n.15 (1982) ("Title VII pro hibits discriminatory employment practices," including "sub jective decisionmaking processes.") (emphasis in original). 95ee, eg ., United States v Georgia Power Co., 695 F.2d 890, 893 (5th Cir. 1903) (non-discrelionary seniority system "maintained out of an unlawful purpose"); Sears v. Dennett, 615 F.2d 1365, 1374 (10th Cir. 1901) (seniority system "main tained with the purpose of discriminating against black em ployees"), cert, denied, 456 U.S. 964 (1902); Chicago Police Ollicer's Ass'n v. Stover, 552 F.2d 918, 921-22 (10th Cir. 1977) Rase remanded for determination of whether employment test having discriminatory impact was adopted with discriminatory intent); cl. Wallace v. City ol New Orleans, 654 F.2d 1042, 1047 (5th Cir. 1901) (police department's adoption of height/weight requirement held not a product of intentional discrimination); Hicks v. Crown Zellerhach Corp., 319 F.Supp. 314, 318 (E.D. la 1970) ("There was no claim that defendants had adopted the tests for the express purpose of capitalizing on these dif ferential passing rales . . . ."). 545 12 dined to npply $ 703(a)(2) to discretionary employment practices in McDonnell Douglas Corp. v. Green, 411 U.S. 71)2 (1973), and Furnco Construction Corp. v. Waters, 438 U.S. 5G7 (1978). Sec Brief for the United States ns Amicus Curino at 11-12. A close look ut those cases, however, dem onstrates otherwise. In McDonnell Douglas, there was simply no assertion of disparate impact. The plaintiff's claims were limited to disparate treatment and retaliation under $$ 703(a)(1) and 704, see 411 U.S. at 796-98, 807; a § 703(a) (2) claim was never made. Indeed, the plaintiff made no effort to establish any group-wide effects of the practice at issue. See id. at 805. Thus, the ense neither holds nor implies that $ 703(a)(2) disparate impuet analysis is inapplicable to subjective practices. Nor does Furnco support such a contention.10 The Court granted certiorari “ to consider important questions raised by th[c| case regarding the eiact scope of the priina facie case under [the] McDonnell Douglas (disparate treat ment approach] and the nature of the evidence ncccssnry to rebut such a case.” Id. at 569. The Court agreed with the court of appeals that the plaintiff had made out a prima facie case of disparate treatment, but reversed on the issue of the defendant’s burden of rebuttal. The gov ernment’s assertion that the Court “ expressly refused to apply disparate impact analysis,” Brief for the United States as Amicus Curiae at 12, is incorrect: A disparate impact claim was not before the Court. While the Court loln Furnco, several black applicants for employment chal lenged. on both disparate impact and disparate treatment grounds, an employer's practice of hiring only those applicants who were known by the superintendent or who were otherwise recommended. The district court rejected both claims, finding, 1 on the impact claim, that blacks as a group were not dispro portionately excluded by the employer's selection process. 430 U.S. at 572. The court of appeals reversed on the disparate treatment claim, id. at 573-74, and the employer sought and petitioned for certiorari only on disparate treatment issues. See id. at 574 n.6 (questions presented in petition for certiorari) 546 13 noted that the selection procedure nt issue in Furnco “ did not involve employment tests which we[re] dealt with in Griggs . . . and in Albemarle . . ., or particularized require ments such as the height and weight specifications con sidered in Dotliard . . .,” id. at 575 n.7, it cannot be con cluded that the Court intended this bare listing to announce a decisional rule restricting use of the disparate impact nnalysis to objective criteria." Although the government fails to mention it, the Court also noted, in the same dis cussion, (hat Furnco “ was not a . . . case like Teamsters . . id., in which the employment practices at issue were discretionary in nature. See Teamsters, 431 U.U. at 338 n.19. ’There is, in short, nothing in Griggs or its progeny that would limit use of the dispurate impact analysis to objective criteria. III. LEGISLATIVE HISTORY SANCTIONS APPLICA TION OF THE DISPARATE IMPACT ANALYSIS TO SUBJECTIVE PRACTICES While “ lujndoubtedly disparate treatment wus the most obvious evil Congress had in mind when it enacted Title V l l” in 1964, Teamsters, 431 U.S. at 335 n.15, “ it was clear to Congress tliut * 11 ]ho crux of the problem [was] to open employment opportunities for Negroes in occupations which have been traditionally closed to them,’ "First, the complained-of practice in Furnco was itself non- discretionary or objective in nature: The employer simply "refusfedj to consider . . . applications at the gate." Furnco, 430 U.S. at 576 n.0. Second, while the employment practices in Griggs, Albemarle, and Dotbard all might have been susceptible to disparate treatment analysis, in none of those cases would the McDonnell Douglas approach have been appropriate. To make out a prima facie case under McDonnell Douglas, the plaintiff must show "that be . . . was qualified for ( tliej job" at issue. 411 U.S. at 002 (emphasis added). However, the Plaintiffs in Griggs, Albemarle, and Dothard brought suit be cause discriminatory selection criteria bad rendered them "un qualified." Thus, perhaps the Court meant only to suggest that the case before it was (unlike Griggs, Albemarle, and Dotbard) susceptible to the McDonnell Douglas approach, and not that the plaintiff was foreclosed from making a disparate impact challenge. 547 14 110 Cong. Rec. 6548 (1064) (remarks of Sen. Humphrey), and it is to this problem that Title V II’s prohibition against racial discrimination in employment wns primarily ad dressed.” United Steelworkers v. Weber, 443 U.S. 103, 203 (1070). Ry 1072, when it enacted several major amend ments to Title VII, Congress fully understood that (lie opening of those opportunities could not be achieved by the eradication of just intentional discrimination. See S. Rep. No. 415, 02d Cong., 1st Sees. 14 (1071) [herein after “ S. Rep. No. 415” ] (“ [WJhero discrimination is in stitutional, rather than merely a matter of bad faith, . . . corrective measures appear to be urgently required.” ); see also 117 Cong. Rec. 32103 (Sept. 16, 1071) (remarks of Rep. Fraser) (“ Often the source of discriminatory pat terns is inertia rntlier than deliberate intent. Rut that docs not lessen the injustice and economic damage done to the recipients.” ). The 1072 amendments, among them a broadening of $ 703(a)(2) to include “ applicants for employment,” see Equal Employment Opportunity Act of 1072, Rub. L. No. 02-261, 86 Stat. 103, 100, were the result of a thorough re view by Congress of both the stntuto and the existing case lnw, including this Court’s Griggs decision. Indeed, “ 111lie legislative history . . . demonstrates that Congress recog nized and endorsed the disparuto-impuct analysis employed by the Court in Griggs,” Teal, 457 U.S. at 447 n.8, and contemplated its application to all employment practices having a discriminatory effect.12 In extending to state and municipal employees the protections of Title VII—“ ns interpreted by Griggs,” id. ,2This Court has relied upon the 1972 legislative history not only in Teal, 457 U.S. at 447 n.8, but also in Franks, 424 U.S. ■at 764 n.21, 796 n.18 (Powell, J., concurring in part and dis senting in part), Albemarle, 422 U.S. at 420-21, and johnson v. Railway Express Agency, 421 U.S. 454, 459 (1975). Compare Teamsters, 431 U.S. at 354 n.39 (little, if any, weight given to 1972 legislative history in light of clear language of § 703(b), which was unaffected by 1972 amendments). 548 15 at 449 Congress was concerned with “ both institutional and overt discriminatory practices,” and specifically iden tified “ stereotyped misconceptions by supervisors regard ing minority group capabilities” as having perpetuated the effects of past discrimination. II.R. Rep. No. 238 92d Cong., 1st Sess. 17 (1971) [hereinafter “ II.R. Rep. No. 238” ] (emphasis added); see also S. Rep. No. 415, at l(h Congress also relied upon a report authored by the United .States Commission on Civil Rights, which specifically iden tified “ supervisory ratings” as a “ [bjnrrierjJ to equal opportunity.” U.S. Commission on Civil Rights For All Hie People . . . Ry All the People-A Report on Equal Opportunity in State and Local Government Employment 119 (1969), reprinted in 118 Cong. Rec. 1817 (1972) See Teal, 457 U.S. at 449 n. 10. The extension of Title VII to federal employees was grounded in similar concerns about both subjective and objective practices. Quoting the presidential memorandum accompanying Executive Order 11478, both Committee re ports declared that “ discrimination of any kind based on factors not relevant to job performance must be eradicated completely from Federal employment.” II R Re ,, No 238, at 22-23; S. Rep. 92-415, at 13 (emphasis added).'2 Indeed, legislative hislory is particularly instructive with regard to the selection procedures of the federal gov ernment. At the Senate hearings, Rep. Fauntroy of the District of Columbia testified concerning the numerous complaints received from his constituents regarding dis crimination by federal agencies. lie was particularly crit ical of the Civil Service Commission’s focus on attempting to find supervisors with malicious intent “ rather than focusing on personnel policies that have the inherent cf- "Congress was well aware of the widespread existence of discretionary employment practices in the federal government See II.R. Rep. No. 238, at 24 (referring to employees' fears that administrative complaints "will only result in antagonizing their supervisors and impairing any hope of future advancement")- S Rep. No. 415, at 14 (same). ’ ’ 549 feet of discriminating against Mack, Spanish surname and women employees.” 14 In (lie eourse of the hearings in the House of Rep resentatives on what was to heroine the 1972 Act, there was a speeific foeus on the question of whether the Civil Ser vice Commission had validated all of its selection pro cedures and instruments. Thus, the Chair of the House Committee asked not only whether Civil Service tests and written examinations Inul been validated, hut also if other selection techniques had (icon validated.15 The Civil Ser vice Commission, in reply, identified selection techniques other than tests as including the evaluation of the experi ence and training of applicants or employees, and went on to state: ‘‘In a few instances interviews are a part of the examination process. In other cases, and in the pro motion program particularly, the appraisals of an indi vidual’s job performance and potential are considered in relation to the job to he filled.” 16 * * With regard to all these qualification requirements, the Civil Service Commission claimed that: ‘‘The showing of direct relationships of job demands to the qualification requirements . . . is fully in conformity with the Supreme Court decision in Griggs v. Duke Dower Co.’’11 1G >4Equal Employment Opportunities Enforcement Act of 1971, Hearings before tbe Subcommittee on Labor of (he Senate Committee on labor and Public Welfare on S.2515, S.26I7, and H R. 1746, Oct. 4, 6 and 7, 1971, p. 205. ’’ Letter to John H Dent, Chairman, General Subcommittee on Labor, Committee on Education, and Labor, U S. House of Representatives, from Irving Kalor, Assistant Executive Director, United Stales Civil Service Commission, April 23, 1971, repro duced in Equal Employment Opportunity Enforcement Proced ures, I learings before the General Subcommittee on Labor of the House Committee on Education and Labor on H R. 1746, March 3, 4, and 18, 1971, pp. 362-03. l6/d. at 383. ,7/d. As part of its submission, the Civil Service Commis sion introduced into the record tbe text of the 1969 Federal Personnel Manual Supplement (FPM) 335-1. Evaluation of Em- (Continued on following page) 550 17 (liven the criticisms of the Commission it had heard, Congress was understandably skeptical. Therefore, the House and Senate reports echoed Representative Faun- troy’s criticisms and instructed: I he Commission should be especially careful to en sure that its directives issued to Federal Agencies address themselves to the various forms of systematic discrimination in the system----- It apparently has not I idly recognized that the general rules and procedures that it his promulgated may in themselves constitute systematic barriers to minorities and women. f , N°- 92-415, 92d Cong, 1st Hess, 1971, p. 14. The Senate report goes on to state: The Committee expects the Civil Service Commission to undertake a thorough reexamination of its entire testing and qualification program to ensure that the standards enunciated in the Griggs case are fully met. Id. at 14-15. See also II. Rep. No. 92-238, 92d Cong, 1st Sess, 1971, pp. 24-25. In short, it is clear beyond any rea sonable question that in 1972 Congress specifically man dated that the Griggs rule apply to all forms of selection and qualification requirements. Finally, when Congress enacted the amendments to Idle VII, the courts had uniformly extended disparate im- (Continued from previous page) ployees for Promotion and Internal Placement. Id. at 336-62 The supplement required agencies to "give careful considera- on *° winch of the available evaluation instruments "are rele- van to the |ob and are sound and dependable measures of the qualifications needed." Id. at 337. Tbe FPM went on to discuss various evaluation instruments, including not only written and other types of tests, hut also interviews and procedures for ap praisals and assessment of potential. Id. at 340-42. With reeard to all evaluation instruments, whether objective subjective o r mixed the FPM required that an agency determine the effective ness of the instrument through establishing its validity and dis cussed and defined the three types of validity: content construct and criterion related. Id at 342-43. Thus, the Civil Service Com mission attempted to convince Congress that all of the methods sed m lie federal service to select employees for jobs at all levels had been fully validated. 551 IH pact scrutiny to suhjce.livo employment practices. And “ in language that could Imrdly he more exp lic it ,” I1'tanks v. liowman Transportation do., 424 II .S . at 7(il i i .2 I, Ihe seclion-hy-Keclioii iiunlyscH suhmitled to both Houses “ con- f ir in [ c«11 (Jongress’ resolve to accept prevailing judicial in lerp ietations regarding the scope of T it le V I I , ” Loral 28 of Sheet Metal Workers’ International Association v. E K O C , — U S . - , - , Kit; s .( !t . 2019, :i()47 (1980): “ In any area where the new law does not address itse ll, or in any areas where a specific contrary intention is not indi cated, it was assumed that the present ease law as devel oped by the courts would continue to govern the applica bility and construction of Title I I I . ” 118 Cong. Hee. 7160, 7561 (11172) (emphasis added)." Congressional awareness of cases applying disparate impact analysis to subjective employment practices ex tended at least to United States v. Sheet Metal I Yorkers International Association, Local Union No. 2(1, 410 I1’.2d 122 (Hlh C ir . 1909), cited by the House Committee Report as having “ contributed significantly to the tederal effort to combat employment d iscrim ination,” I I .R . Rep. No. 228, at 12 n.M , and Local f>.l of the International Association of Heat <6 Frost Insulators v. i’oglcr, 407 l'\2d 1047 (fdli C ir. 1000), cited by both the House and Senate Committee Re ports as support for the “ complex and pervasive” nature of employment discrim ination, l l . i t . Rep. No. 228, at 8 n.2; S . Rep. No. 415, at 5 n . l . ,w Sheet Metal Workers involved * 06 "Moreover, with respect to the new § 706(a), which gave the EEOC more power to prevent persons from engaging in Ihe employment practices made unlawful by §§ 703 and 704, see 06 Slat, at 104, the section by-section analyses expressly stated tlipt "the unlawful practices encompassed by | §§ ] 703 and 704, which were enumerated in 1964 in the original Act, anil as de fined and expanr/ed by die courts remain in effect." 1 Ifl Cong Rec. 7167, 7564 (1972) (emphasis added). ,9ln explaining the "complex and pervasive" nature of cm ployment discrimination, the House and Senate Committee Re ports also cited Cooper A Sobol, Seniority and Testing Under (Continued on next page) 552 I!) n union's practice of administering an examination, “ pnr- lin lly subjective in nature ,” with “ no established | pass/ foil I standard .” 410 I<\2d at 120. The E ighth C ircu it thought “ it . . . essential that journeym en’s examinations be objective in nature [nnd| that they be designed to test (he ability of Ihe applicant to do that work usually re quired of a journeym an.” Id . In reaching this conclusion, we do not necessarily accept the government’s contention that [the test ad ministrator |, as an individual, would, because of his past participation in the exclusionary policies of the Local, discriminate against Negroes in giving and grading journeymen’s examinations. We are not here concerned with the individual who gives and grades the examination. )Ve arc concerned rather with the system, the nature of the. examination, its objectivity and its susceptibility to review. Id. (emphasis added). In Vogler, the F ifth C ircu it also focused on the effects of subjective crite ria . A d istrict court order requiring a union to develop objective criteria for membership “ based on industry need” was upheld be cause subjective c r ite r ia —calling for applicants to obtain recommendations from present members and to receive a favorable vote of a m ajority of the membership—caused the exclusion of blacks. Sec 407 l'\2d at 1049-50, 1054-55/° * 20 (Continued from previous page) Fair Employment Laws: A General Appioadi to Objective Criteria of Hiring and Promotion, 02 llarv. L. Rev. 1590 (1969) Sec H R. Rep. No. 230 at 0 n.2; S. Rep. No. 415, at 15 n.1. That article argued that " f i l f any subjective procedure lias a sys tematic effect in disadvantaging, macks, Ihe employer should be required to show the same justification as for a test or other objective procedure." 02 llarv. L Rev. at 1677. 20rhe other courts that had considered the issue prior to Congress' enactment of the amendments to Title VII agreed that disparate impact analysis could be applied to subjective practices. See United States v Dillon Supply Co., 429 F.2d OCX), 002, 004 (4th Cir. 1970) (district court committed reversible error by failing to consider that " | p |radices, policies or pat- (Continued on next page) 553 ‘20 Inasmuch as the coulcmpnruncnuu ease law included not only Griggs, hut also lower court decisions applying $ 703(a) (2) disparate impact analysis to subjective prac tices, Congress’ express intent in 1072 firmly compels that application today. IV. THE ADMINISTRATIVE INTERPRETATION OF TITLE VII SUPPORTS THE APPLICATION OF DISPARATE IMPACT ANALYSIS TO SUBJEC TIVE EMPLOYMENT PRACTICES Further support for the application of disparate im pact analysis to subjective practice is found in the adminis trative regulations concerning Title VII, which have con sistently required the validation of all selection procedures. The Uniform (luidelines on Employee Selection Proce dures, 2!) C.F.R. ̂ I tit >7 (IttHti), “ based upon principles which have been consistently upheld by the courts, the Con gress, and the agencies," Id Fed. Reg. 2H2!)(J ( 11)7H), con template application of disparate impact analysis to "any selection procedure,” id. at § l(i()7.d, including "the full range of assessment techniques from traditional paper and pencil tests . . . through informal or casual interviews and unscored application forms.” Id. at ^ IG()7.1(i(j. And as the enforcing agencies’ "administrative interpretation of (Continued from previous page) terns, even though neuli.il on their face, may operate to seg regate and classify on the basis of race at least as effectively as overt racial discrimination" wheie "the government offered proof of a decentralized system of hiring and assignment which vested broad authority on the supervisors of largely segregated departments and whir It bad no uniform or objective standards for hiring or assignment"); United States v. /lef/i/e/iem Steel Carp., 446 F.2d C>5>2, 655 (2d C'ir. 1971) (finding that "jobs were made available to whites rather than to blacks" in part because "ft]here were no fixed or reasonably objective standards anti procedures for hiring"); Rowe v. General Motors Co., 457 F 2d 340, 355, 359 (5th Cir. 1972) (although employer liar) no "de liberate purpose to maintain or continue practices which dis criminate," court struck down "promotion/transfer procedures which depend[erl] almost entirely upon the subjective evalua tion and favorable recommendation of the immediate fore man"). 554 21 the Act,” 21 the (luidelines nre “ entitled to grent defer ence.” Albemarle, 422 U.S. nl 431; Griggs, 401 U.S. nt 433-34; see also Local 28 of Sheet Metal 1I'orkers’ Interna tional Association v. EEOC, — U.S. nt —, 10G S.Ct. at 3044-45 (Court’s interpretation of Title VII “ confirmed by I In* contemporaneous interpretations of . . . both the Jus- lire Department and Hit* FFCC, the two federal agencies charged with enforefement responsibility.]” ); Local No. !)8, International Association of Firefighters v. Citg of Cleveland, — U.S. —, —, I0G S.Ct. 30G3, 3073 (108G) ( p i l fered construction of Act supported by EFOC guidelines). Compare General Electric Co. v. Gilbert, 429 U.S. 125, 141 4,r> (197(5) (EFOC regulations not followed because (hey coni indicted agency’s earlier positions and were in consistent with Congress’ plain intent); Espinoza v. Farah Mfg.Co., 414 U.S. 80,93-94 (1973) (same).22 21 the Guidelines were jointly adopted in 1970 by the De partment of Justice, as well as the FEOC, the Civil Service Com mission, and the Department of Labor. 29 C.F.R. § 1007.1A. Section 713(a) of Title VII authorizes the FEOC "to issue, amend or rescind suitable procedural regulations to carry out the pro visions of | the statute]." 42 U.S.C. § 20(X)e-12(a). 22According to the Uniform Guidelines, a selection pro cedure having an adverse impact must be validated unless the employer "choose! s| to utilize alternative selection procedures in orcler to eliminate adverse impact." 29 C.F.R. § 1607.6A. No selection procedures are exempted from Ibis requirement. The government, however, points out that " 11 ]here are circum stances in which a user cannot or need not utilize the valida tion techniques contemplated by these guidelines," id. at § 1607.6R, and asserts that one such circumstance is the use of "informal or unscored selection procedureTs]." Id. at §1607.611 (1). The government then concludes that an employer need only "justify libel continued use of |such| procedure|s| in accord with Federal law," id., and that the articulation of a legitimate, nondisc riminatory reason suffices as the requisite justification. Sec brief for the United Slates as Amicus Curiae at 19 20. This argument is a distortion of the Guidelines. Tirst, the Guidelines also include "formal and scored procedures" as circumstances in which an employer cannot or need not utilize validation techniques. See id at § 1607.6B(2). Second, the government (Continued on next page) 555 22 In requiring nppliealon of the disparate impact analy tes to nil selection procedures, the Guidelines track the now superseded administrative regulations upon which this Court relied in its affirmation of the disparate im pact test in Griggs. The IOEOO’s 15)66 and 15)70 Guide lines,21 which the Court treated “ as | having] express|ed| * 3 (Continued fiom previous page) has neglected to mention the tiist two clauses of § 1f>07.6li(1), which provide that an employer using an informal or unscored procedure should (1) "eliminate the adverse impact," or (2) "modify the procedure to one which is a formal, scored or quantified measure." finally, the government's "belief" that the use of a selection procedure having a disparate impact may be justified by the mere articulation of a legitimate, nondiscrim- inatory reason is undermined by the questions and answers provided to explain the Guidelines: 36. How can users justify continued use of a pro cedure; on a basis other than validity? A. Normally, the method of justifying selection pro cedures with an adverse impart and the method to which the Guidelines are primarily addressed, is validation. The method of justification of a procedure by means other than validity is one to which the; Guidelines are not addressed. See Section 60. In Griggs v Duke rower Co., 401 U S. 424, 3 FIT Cases 175, the* Supreme Court indicated that the bur den on the user was a heavy one, but that the selection procedure could be used if there was a "business neces sity" for its continued use; therefore, the Federal agencies will consider evidence that a selection procedure is neces sary for the safe and efficient operation of a business to justify continued use of a selec lion procedure. 44 Fed. Reg. 11996, 12002 (1979). Cl Comment, Applying Dis parate Impact Theory to Subjective Employee Selection Pro cedures, 20 toy. L.A.L. Rev 375, .309 (1907) ("Flow to 'other wise justify' . . . selection procedures remains an open ques tion."). The government's proposed standard of justification would flout, rather than "accord" with, the federal law as an nounced in Griggs. 2JThe Guidelines on Employment Testing Procedures, issued in 1966, were not published in the Federal Register. They were superseded in 1970 by the Guidelines on Employee Selection Procedures, published at 35 Fed Reg. 12333 (1970) (codified at 29 C.F.R. § 1607, superseded in 1978). 556 i 23 tin* will of Congress,” Griggs, 401 IJ.S. at 434, interpreted Title VII to prohibit the use of any “ test” that was dis criminatory in operation and for which job iclatedness could not be; established. 35 Keel. Iteg. at 12334 (§ 1607.3). They defined the term “ test” broadly, including within its scope such subjective practices as “ scored interviews” and “ interviewers’ rating scales.” Id. at 12334 ($ 1607.2). Klsewhere, the KKOU Guidelines recognized that “ |s]elec- tion techniques other Ilian tests,” such as unscored “ casual interviews” and “ application forms,” might also “ hpve I lie* effect of discriminating against minority groups.” Id. at 12336 1607.13). Under those circumstances, the em ployer was required to validate the selection lcclmiquc(s) at issue or to eliminate the disparate impact. ld.2A V. APPLICATION OF THE DISPARATE IMPACT ANALYSIS TO SUBJECTIVE PRACTICES FUR THERS THE PRIMARY PROPHYLACTIC PUR POSE OF TITLE VII The application of $ 70.3(a)(2) to subjective practices is entirely consistent with T itle V I I ’s central aim of “ elim inating the effects of discrim ination in the workplace.” Johnson v. Transportation Agency, Santa Clam County, Calif., 11.8. — , -, 107 K.G’i. 1412, 1451 (19H7); see. also Teal, 457 IJ.S . at 44!) ( “ Congress’ prim ary purpose was the prophylactic one of achieving equality of employment ‘ opportunities’ and removing ‘ h a rr ie rs ’ to such equal it y .” ). It is also consistent with the statute’s goal of en t it le Department of Labor, in its interpretation of Execu tive Order 11246, 33 Ted. Reg. 14392 (I960) (Employment Tests by Contractors and Subcontractors: Validation), similarly con templated the validation of "any . . . performance measure used to judge qualifications for hire, transfer or promotion," includ ing measures of "intelligence," "ability," "aptitudes," "knowl edge and proficiency," as well as measures of "personality or temperament," id. at 14393 (§9). See id at 14392 (§ 1(g)). Not ing that " | s |election techniques other than tests may also be im properly used so as to have the effor t of discriminating," the Department required that such techniques as "unscored inter views" and "unscored application forms" also be validated or adjusted to eliminate any disparate impact. Id. at 14393 (§ 10). 557 24 conniving employers to engage in voluntary self examina- Iion of their employment practices, and will not unneces sarily or unreasonably diminish management preroga tives. A. Title VII “ Prohibits All Pactices in Whatever Form Which Create Inequality in Employment Opportunity” While § 7<).'t(n) (2 ) 's broad proscription of discrimina tion in employment extends to all “ practices, procedures, or I (is t s neutral on their face, and even ventral in terms of intent . . . Hint operate as ‘built in headwinds’ for mi nority groups and are unrelated to measuring job capa bility,’’ Griggs, 40! IJ.S. at 4:t(), 422 (emphasis added), the government would have plaintiffs prove intent in all challenges to subjective employment practices. However, irrespective of an employer’s good inten tions, the use of subjective selection criteria may unfairly restrict employment opportunities for minorities and wom en. Subjective criteria leave substantial room for deeply ingrained, unconscious biases. As one commentator has written: “ A supervisor | who is) judging a subordinate for promotion potential tends to look for traits [in the subordinate| which the supervisor feels he himself has. It is, of course, much easier for a Caucasian male to find such traits in other Caucasia........ . than in minorities and women.” Stacy, Subjective (/Vitoria in Employment De cisions Under Title VII, 1(1 (la. I,. Rev. 7.'(7, 711!) (1970). See also It. IMunihley, Recruitme.nt and Selection 145-4(5 (1 !)B 1) ( When a candidate’s background and personality “ appear to have been similar to his, the interviewer is presupposed to be biased in favour of him......... lodgment can be warped in this way without the interviewer being conscious of it.” ).25 Moreover, the criteria themselves may JS5ee/ eg., Wilmore v. City oI Wilmington, 699 F.2d (>f>7, 673-74 (3d Cir. 19(13) (exclusion of blacks from adminislralive jobs a result of both conscious and unconscious biases); Chance v. Bil. of Examiners, 330 F.Supp. 203, 223 (S.D.N.V. 1971) (while interviewers may have unconsciously discriminated against blacks and llispanics), al'<l 4r>() I 2d 1167 (2d Cir. 1972). 558 25 be “ unrelated to measuring job capability.” Griggs, 401 II.M. 4.32; see 1). Baldus & J. Cole, Statistical Proof of Dis crimination §1.2:1, nt 27 (11)80 Supp.) (“ (Tjlie defendant I may bej unbiased in evaluating the candidates and . . the disparate impact [may be] caused by differences in characteristics of the candidates which, if measured ob ject ividy, would surely trigger u demand for proof of job telaledness.” ).26 The Court has made precisely this point with respect to subjective performance appraisnla put forth by the employer in Albemarle in an attempt to vali date the objective test at issue there. The Court rejected the proffered correlation, however, because the “ super visors |had been | asked to rank employees by a ‘standard’ that was extremely vague and fatally open to divergent interpretations.” 422 U.S. at 4.T1. The Court had no way of knowing “ whether the criteria actually considered were sufficiently related to the Company’s legitimate interest in job specific ability to justify [the] testing system.” Id. (emphasis in original).17 Thus, the Court was rightly concerned that the subjective performance appraisals may not have measured job related skills. In order to achieve Congress’ primary purpose of “ achieving equality of employment 'opportunities’ and removing ‘barriers’ to such equality,” Teal, 457 U.S. at 449, the disparate impact analysis must be applied to all employment practices, both objective and subjective. 265ee, e g., Hawkins v. Bounds, 752 F.2d 500, 504 (10th Cir 1905) ("The record in Ibis case contains no evidence . . that the practice of totally discretionary detailing or its use in the promotion procedure [was] required by business necessity")- Segar v. Smith, 730 F.2d 1249, 1200 (D C. Cir. 1904) (defendant never even attempted to showing job-relatednoss of subjective experience requirement), cert, denied, 471 U.S 1115 (1905)- Greenspan v Automobile Club, 495 F.Supp. 1021, 1033 (F (V Mich. 1900) (defendant failed to base evaluations on job analy- Ct. B Schlci & P. Grossman, Employment Discrimination ■'w 203 (2d ed. 1903) (. . |T|be evaluative devise (should have! fixed content and cnllfl for discrete judgments "). 559 B. Title VII Requires That Employers “ Self-Exam- ine and Self Evaluate Their Employment Prac tices" 1 lie government’s apparent concern for management prerogatives cannot obscure the fact Hint the exclusion of subjective criteria from disparate impact analysis would allow and even encourage employers to avoid the intro spective assessment of their employment practices as eon templated by Title VII. Provided a convenient sanctuary in subjective criteria, employers would be loathe " Mo self- examine and to sell evaluate their employment practices and to endeavor to eliminate . . . the last vestiges of an unfortunate and ignominious page in this country’s his tory.’ ’’ Albemarle, 422 U.S. at 418 (quoting United States v. N.Ij. Industries, 47!) l-’.2d .454, ;t7!) (8th (hr. 197.1)). Cf. United Steelworkers v. IVebcr, 448 U.S. at 204 (Title VII “ intended as a spur or catalyst" for employer efforts to eliminate effects ol discrimination). I lather than encourage self examination, the govern nient’s proposed exemption for subjective practices would hkely encourage blind adherence to those practices. See (\ri ' f f in v: Carlin, 7f>f> l-’.2d IT.If,, 1525 (11th Cir. 1085) ( I'jxclusion of . . . subjective practices from the reach ot Hu, disparate impact model of analysis is hkely to en courage employers to use subjective, rather than objec tive, selection criteria.’’); 1). Baldus & J. Cole, Statistical I ' o o f of Discrimination § 1.28, at 27 (I08G Supp.) ("ex clusion ol subjective criteria from review under the dispa rate impact model may encourage employers to rely less on objective criteria and more on general standards") "•Iced, to avoid the potential for disparate impact lia- , . e,,1l'b)yers would be inclined simply to consider oh jective criteria, such as a diploma requirement, within the context of a subjective interview. Yet " | i j | could not l-ave been the intent of Congress to provide employers with an incentive to use such devices rather than validated objective criteria." (h iff in v. Carlin, 755 l-’.2d at 1525- see also Atonio v. Wards Cove Sacking Co., 810 I<’.2d at 20 560 1 1485 ( " I t would subvert the purpose of Title VII to create an incentive to abandon efforts to validate objective cri teria in favor of purely discretionary hiring methods.” ).21 * * * * * * * Aloreover, if any distinction were to be drawn between subjective and objective employment practices, one would expect the courts to scrutinize the former more carefully: Subjective employment practices are more susceptible to alms,, Ilian their objective counterparts. As (he Ninth Circuit noted in Nanly v. Harrows Co., (ifi() l-'.2d 1827 1884’ (!Hh Cir. 1!)8I) (footnote omitted): “ Subjective job cri teria present potential for serious abuse and should be viewed with much skepticism. Use of subjective job cri teria not only has, in many instances, a disparate impact on minorities, but also provides u convenient pretext for discriminatory practices."29 The government suggests that application of the dis parate impact analysis to subjective criteria would impose “ The government asserts that the application of disparate anpacl analysis to subjective criteria will force employers either to abandon such criteria or to eliminate statistical disparities trough the adoption of quotas—because "subjective selection <1 wices . . m a y not be susceptible to validation or other such objective substantiation." Uriel for the United States as Amicus C-uriae at 15. As noted infra at 20-10, the premise for such a,, « ! serlion is unfounded: subjective criteria arc in fad susceptible vahdation techniques. The government makes no mention of the fact that the failure to apply disparate impact analysis to subjective criteria will cause employers to abandon objective cr.tena for reasons unrelated to either the promotion of business necessity or the enhancement of equal opportunity in emjdoj nSee a/so Harnett v. W.T. Grant Co , 510 F.2d 541 sqn fail, Cir. 1975) ("Nonobjective hiring standards are always sus|>ect because of heir capacity for masking racial I bias ) .") Rogers v Internatuuial I'a,ter ( o , 510 f.2d 1140, 1145 (Oil, Cir ) ("Greater possibilities for abuse . aie mbeient in subjective definitions of employment selection and promotion criteria ") vacated on other grounds 421 U.S. 000 (1-175): Mailer v. United States Steel Corn., 509 F.2d 921, 920 (10th Cir.) ("personal and subjective T tf T ' r r ; ,IS(cri' " i"'l li ,,n " )' « v l. denied, 421 bon § j 2 , S ' t nnr c ei ^ 'C tica l Proof of Discrimination 9 1.21, at 27 (1900 Supp.) (subjective criteria are "more susceptible to abuse"). re 27 561 28 an insuperable bunion on employers because of the un feasibility of validating suoli criteria. See Brief for the llnilod States as Amicus Curiae at 14-15. That suggestion is without merit. The industrial psychology profession uni versally recognizes that “ [ijntei viewers ure subject to (lie same standards of reliability and validity as apply to tests.” W. Casein, Applied Psychology in Personnel Mono,,mient .(1 (2d ed. 1982).30 All selection procedures, whether oh joctive or subjective, may he demonstrated to he job-re lated through acceptable validation procedures.11 ! ° 7 he I industrial psychology) profession has taken the stand that al selection systems, including subjective ones, can and indeed should he validated. The literature contains numer ous descriptions of validity studies of the most commonly used subjective processes, such as interviews, the evaluation of bio- grajnucal data, and assessment center techniques.” Bartholot V" ,! ,I,S in 1 l>la«s , 95 //arv. L. Rev. J I7 , 900 (IJ02). See a/so Arvey & Campion, The Employment Interview: A Summary and Review of Recent Research 35 Per sonnel Psychology 20I (1902) ("Industrial and organizational (psychologists have been studying the employment interview tor more than 60 years in an effort to determine the reliability and validity of judgment based on the assessment device and also to discover the various |>sychological variables which in fluence these judgments.” ); W. Cascio, Applied Psychology in lersonnel Management I t (2d ed. 1902) ("| R leliability and validity analyses |of interviews! can easily he made by accu rately maintaining . records fof information gathered, action taken, and jrredn lions of future |>erformance] .” ). "See generally Doverspike, Harrell & Alexander, The Feasi- hdity of Trad.t'onal Valbh.tion Procedures for Demonstrating Job-KelaliMlness, 9 Law & Psyi hology Rev. 35 (1905). The Standards for Educational and Psychological Testinn (1905) jointly issued by the American Psychological Association, the American Education Rescan h Association and the National Council on Measurements in Education, slate that validity is the most important consideration in evaluating tests, id. at 9 ("Tech nical Standards for Test Construction and Evaluation") and broadly define tests to indude all "evaluative devices" as well as standardized ability instruments. Id al 3. See also Ct.ion, Recruiting, Seler lion and lob Placement, in Handbook oI In lo n iw m c if/ °.7?dn,z‘1" f>n<i/ Psychology 799 (M. Diinnetle ed 1)03) ( ISIjrecific items of information drawn from interviews and | global judgments made by interviewers and others must be considered as "tests"). 562 29 That tho Riibjcctive elements of a promotion or hir ing system can he validated is further evidenced by the government’s own experience. Tho standard process for selecting federal employees for competitive positions con- fnins a number of subjective elements, including tho use of pei foi mance evaluations, interivews, and recommenda tions.32 Nevertheless, (he Office of Personnel Manage ment requires, as did flic Civil Service Commission hefoi’9 it, see supra at 16, that federal agencies, where feasible, validate all selection procedures and standards—including subjective criterin-according to the Uniform Guidelines on I'iiiqiloyee Selection Procedures. See Federal Person nel Manual, Chap. 335, Supplement 335-1, suhehapter 3 4(a) (1980). In those few instances where strict valida tion is not possible, the procedures and standards still must he shown to he job related. Id. Amici have been involved in a number of cases under Title VII against a variety of federal agencies. In several instances, such agencies have validated their entire selec tion procedures, including those that involve subjective elements. For exumple, in Harrison v. Lewis, 559 F.Supp. 943 (D.I).C. 1983), the district court, nfter finding that blacks had suffered discrimination in selections for pro fessional and adminisfrelive positions under flic disparate impact theory, ordered the agency to revise and validate all elements of its selection process pursuant to the Uniform Guidelines, including subjective rating, ranking, and selec tion procedures. See 559 F.Supp. at 953. Subsequently, the agency commissioned a study by an industrial psy chology firm and has reported to (lie court that they had successfully validated their procedures as ordered. In short, the actual and practical experience of the country’s largest single employer, the United States Government, sharply contradicts the contentious advanced by Ihe gov- J25ee fi. Schlei and P. Grossman, Employment Discrimination law 1107 n.5 (2d ed. 1903), lor a summary description of the process. 563 no ~ ll0rc H,al s,,l‘j aclivo »"> '.nptmail.ln ‘ - ' — ( ) -------- - . CONCLUSION Mir the reasons nl.ovo, if it is appropriate to decide tho merits, the judgment of the Fifth (Jirc.it should |)0 reversed. 1,0 DATKI); September I t, 10H7 Respectfully sii limit ted, H i m , L a nn L e e * ►S'l'El’IlEN M. CoTI.ER Center for Law in the Ciihlic Interest •Ini,m s L e V o n n e C mamuerh R o NAIJ) L. I'h.MS O i i ari .es S tki i i e n R auston NAAFI* Legal Defense and I'idnralionnl Fund, Ine. A ntonia H er nand ez I'<. R i chard L arson doHE RoilERTO dl/AREZ Mexican American Legal Defense nnd Fdncalionul Fund doAN M. O raee 1‘atricia A. S iiiu Fmploynient Law Center # Counsel for Amici Counsel of Record 564 * * * * * * * * SUPREH FO ON WR1 STATES CO STATE OF RIGHTS; Tl HAWAII; TI MASSACHU! TION; THE OHIO AND STATE OF TIONS; TH WYOMING / EMPLOYMEf ON THE Bl ELAINE RC Legal In ter 565