City of Memphis v. Greene Brief for Respondents

    No. 1405

October T erm , 1.969

W illie Si Griggs et  al., petitioners

' v.
' !)[ ke P ower Com paw

ON P E T IT IO N  FO R W R IT  OF C E R T IO R A R I TO T H E  U NITED  S T A T E S  
COURT OF A P P E A L S  FOR T H E  F O U R TH  C IRC U IT

BRIEF TOR THE UNITED STATES AS AMICUS CURIAE

ERW IN N. GRISWOLD,
Solicitor General, 

JERRIS LEONARD.
A ssistan t A ttorney General.

DAVID L. ROSE,
DENIS F. GORDON,

Attorneys,
D epartm ent o f Justice, 

W ashington, U.O. 205SO.



I N D E X
Page

Opinions below____________________________________  1
Jurisdiction________________________________________ 1
Question presented_________________________________  1
Statute involved----------------------   2
Introduction and interest of the United States__________  3
Statement_________________________________________ 4
Argument_________________________________________  8
Conclusion________________________    14

CITATIONS
Cases:

Clark v. American Marine Corporation, 304 F. Supp.
603_________________________________________ 9

Dobbins v. Local 212, IBEW , 292 F. Supp. 413______  9
Local 53 Asbestos Workers v. Vogler, 407 F. 2d 1047_- 9
Local 189, United Papermakers v. United States, 416 F.

2d 980, certiorari denied, 397 U.S. 919___________  9
Quarles v. Philip Morris, Inc., 279 F. Supp. 505-------  9
Robinson, et al. v. P. Lorillard Co. (M.D. N.C., 1970),

62 Lab. Cas. 1f9423____________________________ 9
United States v. IP. K. Porter Co., 296 F. Supp. 40,

appeal pending, C.A. 5, No. 27,703______________ 10
United States v. Sheet Metal Workers, 416 F. 2d 123.- .. 9, 12

Statute:
Title VII of the Civil Rights Act of 1964 (42 U.S.C.

2Q0Qe, et seq.)___________________ 2, 3, 5, 8, 9, 10, 11, 12
Sec. 703(a), 42 U.S.C. 2000e-2(a)___________  2
Sec. 703(a)(2), 42 U.S.C. 2000e-2(a)(2)______  2, 11
Sec. 703(h), 42 U.S.C. 2000e-2(h)____2, 7, 11, 12, 13

(i)
388—073— 70— -—1



IX

Miscellaneous: Page
Bureau of Labor Statistics, Employment and Earnings,

June 1970, Table A-3, Major Unemployment In­
dicators_____________________________________  3

1980 Census of the Population, Characteristics of the 
Population, Yol. 1, U.S. Summary, Table 174,
p. 1-421____________________________________  10

Equal Employment Opportunity Commission, Guide­
lines on Employment Testing Procedures, August 24,
1966, reprinted in CCH Employment Practices
Guide, 1(16,904_______________________________ 1]

Order of Secretary of Labor, Validation of Employ­
ment Tests by Contractors and Subcontractors 
Subject to the Provisions of Executive Order 11246,
33 Fed. Reg. 14392___________________________ 3, 12



Jftr it it t̂ifveme fltmtri of tte states
October T erm , 1969

No. 1405
W illie  S. Griggs et al., petitioners

v.
D uke P ower Company

•ON P E T IT IO N  F O R  W R IT  OF C E R T IO R A R I TO TH E  U NITED  S T A T E S  
COURT OF A P P E A L S  F O R  T H E  F O U R TH  C IR C U IT

brief for the united states as amicus curiae

O PIN IO N S BELOW

The opinion of the court of appeals (Pet. App. 
18a-62a) is reported at 420 P. 2d 1225. The opinion 
of the district court (Pet. App. la--17a) is reported 
at 292 F. Supp. 243.

j u r i s d i c t i o n

The judgment of the court of appeals was entered 
on January 9, 1970. The petition for a writ of cer­
tiorari was filed on April 9, 1970. The jurisdiction of 
this Court is invoked under 28 TJ.S.C. 1254(1).

QUESTION PR ESE N T E D

Whether it is unlawful under Title Y II of the Civil 
Flights Act of 1964 for an employer to require the

(i)



2

completion of high school or the passage of certain 
general intelligence tests, as a condition of eligibility 
for employment for, or transfer to, jobs formerly re­
served only for white employees, when

(1) both the high school standard and the sub­
stitute tests operate to disqualify Negroes at a 
substantially higher rate than whites; and
(2) neither possession of a high school educa­
tion, nor passage of the substitute tests, has 
been shown to measure the capacity of em­
ployees to perform such jobs.

STA TU TE IN VO LVED

Title Y II of the Civil Rights Act of 1964 (42 U.S.C. 
2000e et seq.) provides in pertinent part as follows:

Sec. 703(a) I t  shall be an unlawful employ­
ment practice for an employer—

* * * *
(2) to limit, segregate, or classify his em­

ployees in any way which would deprive or 
tend to deprive any individual of employment 
opportunities or otherwise adversely affect his 
status as an employee, because of such indi­
vidual’s race, color, religion, sex, or national 
origin.

* * * # #
(h) * * * it shall not be an unlawful employ­
ment practice for an employer to * * * give and 
to act upon the results of any. professionally 
developed ability test provided that such test, 
its administration or action upon the results 
is not designed, intended or used to discriminate 
because of race, color, religion, sex or national 
origin. * * *



3

lETTRODITCTIGN A ND  IN T E R E S T  OP T H E  U N IT E D  STATES

This brief is submitted in response to an order of 
this Court, entered on May 25, 1970, inviting the 
Solicitor General to file a brief in this case expressing 
the views of the United States.

Federal responsibility for enforcing Title Y II of 
the Civil Rights Act of 1964 is assigned by that Title 
to the Attorney General and the Equal Employment 
Opportunity Commission. Pursuant to that statutory 
mandate, and the provisions of Executive Order 11246 
prohibiting employment discrimination by govern­
ment contractors and subcontractors, the United 
States is engaged in comprehensive efforts to eliminate 
racially discriminatory employment practices and to 
remedy the continuing effects of past discrimination. 
But the goal of equal employment opportunity remains 
unrealized; unemployment among Negroes and other mi­
nority groups continues to be substantially higher than 
it is among the population at large,1 and such unemploy­
ment and underemployment continues to be a serious 
national problem.

The decision of the majority of the court of ap­
peals, if permitted to stand, would give judicial sanc­
tion to the use of employment screening devices which 
do not measure abilities to perform specific jobs but 
have the effect of seriously limiting employment and 
promotion opportunities for Negroes and other mi­
nority groups. This result would seriously impede the

1 For example, in May 1970, unemployment for non-whites 
was 8%, while that for whites was 4.6%. See Bureau of Labor 
Statistics, Employment and Earnings, June 1970, Table A-3, 
Major Unemployment Indicators.



4

government’s efforts to achieve equality of employ­
ment opportunities.

STA TEM EN T

1. Traditionally, and at least until some five years ago, 
respondent Duke Power Company discriminated on the 
basis of race in the hiring and assigning of employees 
at its Dan River Steam Station in Eden, North 
Carolina. Negroes were employed only in its Labor 
Department, where the best jobs paid less than the low­
est paying jobs in the four “operating” depart­
ments, staffed solely by white personnel. While nor­
mally promotions were made within each department 
on a job seniority basis, there was some mobility 
between the operating departments. No Negro held a 
job in a department other than Labor, however, until 
August 1966, some five months after the filing of charges 
with the Equal Employment Opportunity Commission. 
At that time, a Negro employee assigned to the Labor 
Department was promoted into a formerly white job 
in the Coal Handling Department.

Beginning in 1956, the Company instituted a policy 
of requiring a high school education as a prerequisite 
for initial assignment to any department except Labor 
and for transfer from the Coal Handling Depart­
ment or from Watchman to any “inside” department 
(i.e., Operations, Maintenance or Laboratory and 
Test Departments). When the Company abandoned 
its policy of restricting Negroes to employment in the 
Labor Department, the high school requirement was



5

also applied to transfers from Labor to any other 
department.

In July 1965, the Company instituted the additional 
requirement that new employees register satisfactory 
scores on two commercially prepared aptitude tests2 
to qualify for assignment to any but the Labor De­
partment. Possession of a high school education alone 
continued to render incumbent employees eligible for 
transfer to the four desirable departments. In Sep­
tember of that year, a procedure was instituted 
whereby incumbent employees who lacked a high school 
education could qualify for transfer by passing the same 
two aptitude tests. One of the tests purports to 
measure general intelligence; the other, general 
mechanical comprehension. Neither of the tests was 
intended to measure the ability of an employee to 
perform any particular job. For both initial hiring 
and for transfers, the cut-off scores chosen were the 
national median scores of all high school graduates, 
making the test standards more stringent than the 
high school requirement, since the tests would screen 
out approximately half of all high school graduates.

2. This suit was brought by the thirteen Negro em­
ployees of the Labor Department on October 20, 1966, 
alleging that the testing, transfer, and seniority prac­
tices violated the rights of incumbent Negro employees 
under Title Y II of the Civil Rights Act of 1964 by con­
ditioning their eligibility to transfer out of the Labor 
Department on educational or testing requirements 
which did not have to be met by white employees pre­

2 The tests used at all times relevant to the action were the 
Wonderlic test and the Bennett Mechanical test.



6

viously assigned to jobs in the more desirable depart­
ments. They further contended that, even if applied 
by the Company only to Negroes hired after 1956, the 
high school requirement and the alternative testing 
requirements were unlawful ; by disqualifying Negroes 
in substantially higher proportions than they did 
whites, the requirements tended to restrict Negroes 
to the low paying jobs in the Labor Department, without 
any business necessity for doing so, thus unlawfully per­
petuating the effects of the Company’s past discrimi­
nation.

Through expert testimony, the plaintiffs attacked 
the testing requirements on the ground that the Com­
pany had not shown that the tests measured capacity 
to perform the work of any particular job or class of 
jobs in the plant, or that they predicted success on 
any job or category of jobs. The testimony of the 
experts for plaintiffs also tended to show that the 
testing requirements disqualified Negroes in dispro­
portionate numbers (App. 140a, 147-148a, 154-155a), 
The Company’s expert conceded that the tests were 
not designed to measure a person’s capacity to per­
form certain jobs, but testified that they were intended 
merely as a substitute for a high school education 
“ on the assumption that a high school education pro­
vides the training, ability and judgment that a person 
needed to do the jobs in the plant” (App. 181a).

3. The district court found that the Company had 
followed a policy of overt racial discrimination prior 
to the adoption of the Act, and agreed that the in­
equities of the pre-Act racial discrimination were 
continued by the Company’s limitations on transfer



7

eligibility and department seniority system, but found 
that, as of the time of trial, the practice of making- 
initial assignments based on race had ceased. The 
court ruled that, since the application of Title V II 
was intended to be prospective only, no relief was 
authorized as to any of the Negro incumbents.

The court of appeals reversed in part, unanimously 
rejecting the district court’s holding that Title V II 
does not prohibit allegedly neutral practices which 
perpetuate the effects of past discrimination. The 
court ruled that Negroes hired and assigned to the 
Labor Department at a time when there was no high 
school requirement for entrance to the higher paying 
departments could not now be made subject to that 
requirement, since whites hired contemporaneously 
into the other departments were never subject to such 
a requirement. As to those Negroes, the court also 
ruled that their seniority rights be measured on a 
plant-wide, rather than on a departmental, basis.

With respect to Negroes hired after imposition of 
the high school requirement, however, a majority of 
the court of appeals affirmed, the holding of the dis­
trict court, finding that the high school requirement 
had been applied fairly to whites and Negroes alike. 
The court found that there was no racial purpose or 
moti-eJf in the adoption of the education requirements, 
and that in the absence of such a purpose, their use was 
permitted by Section 703(h) of the Act. The court ex­
pressly rejected petitioners’ contention that, since both 
the high school requirement and the tests operated to 
disqualify proportionately more Negroes than whites, 
those requirements were unlawful under Title V II ab­



8

sent a showing that they were, in fact, valid predictors of 
job success (that is, that they were “job-related”). 
Judge Sobeloff dissented from this part of the decision, 
maintaining, as do petitioners in this Court, that 
Title V II does not protect the use of employment 
tests which do not measure the skills or abilities 
necessary to performance of the jobs which the appli­
cants are seeking.

A R G U M EN T

This case presents the issue whether Title V II of 
the Civil Rights Act of 1964 permits the use of 
allegedly objective employment criteria which dis­
qualify disproportionately large numbers of Negro 
and other minority group persons from employment 
opportunities for which they are actually or poten­
tially qualified. The issue is one of a high importance, 
because use of employment criteria of the kind utilized 
by the Company here is widespread in many parts of 
the country today. Yet those criteria bear no demon­
strated relationship to employees’ abilities to perform 
the jobs for which they are used, and they operate to 
disqualify Negroes in substantially higher propor­
tions than they do whites. In these circumstances, the 
use of such criteria needlessly perpetuates the effects 
of past discrimination, and is, in our view, prohibited 
by Title V II of the Civil Rights Act of 1964. In 
holding to the contrary, the court of appeals expressly 
rejected the interpretation of Title V II adopted by 
the Equal Employment Opportunity Commission, and 
refused to follow an Eighth Circuit decision proscrib­



9

ing the use of tests which do not measure relevant 
abilities. Review by this Court is appropriate to re­
solve tliis important issue.

1. In the nearly five years since Title Y II of the 
Civil rights Act of 1984 became effective, efforts to 
enforce that Act through litigation, both by the 
United States and by aggrieved private individuals, 
have resulted in nearly unanimous judicial acceptance 
of the proposition that covert as well as overt, and 
residual as well as active, discrimination is proscribed 
by Title YII.

The courts have regularly been confronted with 
records showing prior racial discrimination by em­
ployers or unions and current restrictions and prac­
tices which, although arguably serving some identi­
fiable business or economic purpose, were not derived 
from any compelling business necessity and which, 
while not inherently discriminatory, tended to per­
petuate the discriminatory disadvantages at which 
Negroes had been placed. In each of these cases, the 
courts of appeals have ruled that the “ neutral prac­
tices” involved were unlawful. Local 189, United 
Papermakers v. United States, 416 F. 2d 980 (C.A. o), 
certiorari denied, 397 U.S. 919; Local 53 Asbestos 
Workers v. Vogler, 407 F. 2d 1047 (C.A. 5); United 
States v. Sheet Metal Workers, 416 F. 2d 123 (C.A. 8). 
The district courts have generally reached the same 
result.3

3 Quarles y. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Y a.); 
Dobbins v. Local 121%, IB E W , 292 F. Supp. 413 (S.D. 
O hio); Clark v. American Marine Corporation, 304 F. Supp. 
603 (E.D. L a .) ; Robinson, et al. v. P. LoriMard Co. (M.D. K.G.



10

In our view, the high school education and test re­
quirements used by the Company in this case are 
legally indistinguishable from the employment, pro­
motion and referral restrictions found unlawful in 
the cases cited above. Like the apparently neutral re­
strictions in those cases, imposition of the high school 
requirement and use of the test alternatives here 
demonstrably fall far more heavily on Negroes than 
they do on whites. Nationally, of all non-white males 
over the age of 25, only 12.8 percent have attained 
12 years of formal education as compared with 34.6 
percent of all white males in the same age group.4 
Necessarily, the imposition of a high school educa­
tion, or the ability to demonstrate the equivalency of 
such formal educational attainment on a paper and 
pencil test, as a condition precedent to consideration 
for employment or employment advancement, will re­
sult in a disproportionately higher percentage of 
Negroes being excluded.

To be sure, if the possession of a twelfth grade 
education or its intelligence test score equivalent is 
shown to be a necessity for satisfactory performance 
on the jobs for which it is required, the fact that such 
a requirement eliminates a disproportionately higher 
percentage of Negroes than it does whites, does not 
make it an unlawful employment practice. Title Y II 
does not prohibit the use of valid criteria to select

1970), 62 Lab Cas. If 9423; but see, United States v. II. K. Porter 
Co., 296 F. Supp. 40 (N.D. Ala.), appeal pending, C.A. 5, No. 
27,703.

4 1960 Census of the Population, Characteristics of the Popu­
lation, Vol. 1, U.S. Summary, Table 174, p. 1-421.



11

qualified applicants for particular jobs. On the other 
hand, if the requirement does not measure the appli­
cant’s ability to perform the job in question satis­
factorily, then the requirement serves to restrict the 
employment opportunities of Negroes to the advantage 
of other applicants without satisfying a demonstrated 
business need, and is unlawful.

In the case at bar, the respondent acknowledges, 
and the courts below have found, that the requirement 
of a high school education or attainment of minimum 
scores on the tests are not valid predictors of success 
in performing the jobs involved in this litigation. 
Unless and until such a showing is made, we think 
the discriminatory impact of those requirements for 
promotion and transfer constitutes a classification of 
employees which would “tend to deprive [Negroes] 
of employment opportunities” on account of race, in 
violation of Section 703(a)(2) of the Civil Rights 
Act of 1964 (42 U.S.C. 2000e—2(a) (2)).

2. We turn to the Company’s contention, sustained 
by the court of appeals, that the use of the Wonderlie 
and Bennett tests as a substitute transfer require­
ment is specially protected by Section 703 (h) of the Act 
(42 U.S.C. 2000e-2(h)).

Shortly after Title V II of the Civil Rights Act of 
1964 became effective, the United States Equal Em­
ployment Opportunity Commission interpreted Sec­
tion 703(h) as protecting only tests which measured 
the ability to perform the jobs for which they were 
used, that is, valid and “job-related” tests.5 Similarly,

5 Equal Employment Opportunity Commission, Guidelines 
on Employment Testing Procedures, August 24, 1966, re­



1o  &

the Eighth Circuit has proscribed under Title YI1 
the use of a journeyman’s test which does not measure 
the ability of the applicant to do the work usually re­
quired of journeymen. United States v. Sheet Metal 
Workers, supra, 416 E. 2d at 136. Conceding that the 
tests in the case at bar were not job related,6 the 
majority below rejected the “ job-related” standard 
and concluded instead that in adopting Section 
703(h), Congress specifically intended to permit the 
use of any professionally developed test, so long as 
there was no discriminatory purpose or motive. We 
think that reading of Section 703(h) is in error, and 
that, notwithstanding the majority’s disclaimer,7 it 
invites the use by employers of a wide and varied 
array of tests and other qualifying devices which 
operate unjustly to limit employment opportunities 
for Negroes as a class.

While the legislative history surrounding the adop­
tion of the Tower amendment is subject to more than 
one interpretation,8 the overall congressional intent 
manifested by the enactment of Title V II compels 
the view that, where tests tend to perpetuate the ef­
fects of past discrimination by disqualifying dispro­
portionately large numbers of Negroes, only those 
tests which are job related are protected by Section
printed in CCH Employment Practices Guide, 16,904. Tlie 
Secretary of Labor has applied that standard with respect to 
the employment practices of Federal contractors and subcon­
tractors under Executive Order 11246, see, 33 Fed. Reg. 14392.

6 The district court so found, and the majority below’ did not 
question that finding. 420 F. 2d at 1234,

7 420 F. 2d 1235, n. 8.
s Compare the legislative analysis of the majority below, 420 

F. 2d at 1234-1235, -with that of Judge Sobeloff dissenting, 420 
F. 2d at 1241-1243.



13

703(h). For while it is understandable that Congress 
should have reserved to employers the right to test 
the abilities of prospective employees to perform the 
jobs for which they are being considered, it is con­
trary to the language of section 703(h) itself,9 and 
inconsistent with the overriding objective of Title VII, 
to conclude, as the majority below did, that Congress 
intended to protect the use of such tests in circum­
stances where they are not shown to measure any 
such abilities.

The majority of the court of appeals also appears 
to have relied upon the proposition that the tests in 
question were the equivalent of the requirement of a 
high school education, and could be justified on that 
ground. But the passing scores used were the median 
scores of high school graduates, so that approximately 
one-half of all high school graduates would be barred 
from jobs by the use of those tests.

More significantly, however, the Company’s reliance 
on Section 703(h) begs the question. For it is clear 
that the requirement of a high school education has 
a highly discriminatory impact. And the lack of any 
business necessity is shown by the fact that white 
employees have performed satisfactorily and have 
been promoted to high ranking jobs in the favored 
“ inside” departments without such an education.

9 The protection of 703(h) is limited to “any professionally 
developed ability test” which is not “intended or u s e d to 
discriminate (emphasis added). The concept of an “ability 
test” suggests a test which measures relevant abilities. And the 
coupling of the word “used” with that of “intended” demon­
strates that Congress was concerned with discriminatory im­
pact as well as discriminatory motive and purpose.



14

CONCLUSION

For the foregoing reasons, the petition for a writ 
of certiorari should be granted.

Respectfully submitted.
E rw in  1ST. Griswold,

Solicitor General.
J erris L eonard,

Assistant Attorney General.
D avid L. R ose,
D enis F . Gordon,

Attorneys.

J une 1970.

U .S .  GOVERNMENT PRINTING OFFICE:  J 9 7 0