Watson v. Fort Worth Bank and Trust Brief Amici Curiae

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No. 86-0139
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In The
Supreme Court of the United States

October Terra, 1986
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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

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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
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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-

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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.

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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

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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



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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

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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).

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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

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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

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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

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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

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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



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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

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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



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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