Washington v. Davis Brief Amicus Curiae

    g>ttprtatf (Euurt of tijf liutteii States
October T erm, 1975 

No. 74-1492

I n  the

W alter E. W ashington, et al.,

v.
Petitioners,

A lfred E. Davis, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE

Jack Greenberg 
James M. N abrit, III 
Charles S tephen R alston 
B arry L. Goldstein 
D eborah M. Greenberg 
E ric S chnapper 
0 . P eter Sherwood 

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Amicus Curiae



I N D E X

PAGE

Interest of Amicus ...........   1

A rgument

I. Petitioners’ Arguments Would Render Title YII 
Ineffective as a Bar to Discriminatory Employ­
ment Criteria .............................................................  2

A. Adverse Impact .................................................... 3

B. The Validity of the Test ....................................  6

II. Police Department Selection Policies Should Be 
Subject to the Same Standards as are Those of 
Other Employers .......................................................  7

Conclusion .........................................................................  10

T able of A uthorities

Cases:

Albemarle Paper Co. v. Moody, ------  U.S. ------ , 45
L.Ed.2d 280 (1975) ..........................................2, 4, 6, 7, 7n

Alexander v. City of Augusta (S.D. Ga., No. 1777) .... 9n 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 7n 
Arnold v. Ballard, 390 F. Supp. 723 (N.D. Ohio 1975) 9

Bell v. City of Jackson (S.D. Miss., C.A. No 72-J-153) 9n 
Boston Chapter, NAACP, Inc v. Beecher, 504 F.2d 1017 

(1st Cir. 1971) ...............................................................  7n

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) .......  9
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ........... 5n
Castro v. Beecher, 365 F. Supp. 655 (D. Mass. 1973) .... 9
Chance v. Board of Education, 458 F.2d 1167 (2d Cir. 

1972) ................................................................................. 7n



11
PAGE

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .....2, 4, 4n,
6,7

Headon v. City of Cleveland (N.D. Ohio, No. C-73- 
330) ...................................................................................  9n

Kirkland v. New York State Dept, of Correctional 
Services, 520 F.2d 420 (2d Cir. 1975) ....................... 9

McDonnell Douglas v. Green, 411 U.S. 792 (1973) ....5n, 7n

North State Law Enforcement Officers Ass’n v. City of 
Charlotte (W.D.N.C. No. 2938) .....................................  9n

Officers for Justice v. Civil Service Commission, 371 
F. Supp. 1328 (N.D. Cal. 1973) ....................................  9

Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) 4

Shield Club v. City of Cleveland (N.D. Ohio, No. C-72- 
1088) .................................................................................  9n

United States v. Georgia Power Co., 474 F.2d 906 (5th 
Cir. 1973) ..............................................................,..........  7n

United States v. Local 638, 360 F. Sapp. 979 (S.D.N.Y. 
1973), aff’d sub nom. Rios v. Enterprise Ass’n. Steam- 
fitters Local 638, 501 F.2d 622 (2d Cir. 1974) ........... 5n

United States v. United Ass’n. of Journeymen & Ap­
prentices, 314 F. Supp. 160 (S.D. Ind. 1969) ...........  5n

Vulcan Society v. Civil Service Commission, 490 F.2d 
387 (2d Cir. 1973) .......................................................... 9

Other Authority:

Statistical Abstract of the United States, p. 870 (1971 
ed.) ...................................................................................  5n



I n  the

gatprattf (Eflttrt of th? lluitpii S’tatr.a
October T erm , 1975 

No. 74-1492

W alter E. W ashington, et al.,

v.
Petitioners,

A lfred E. Davis, et al.,
Respondents.

ON WRIT OE CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE

Interest of Amicus*

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, incorporated under the laws of 
the State of New York in 1939. It was formed to assist 
Negroes to secure their constitutional rights by the prose­
cution of lawsuits. Its charter declares that its purposes 
include rendering legal aid gratuitously to Negroes suffer­
ing injustice by reason of race who are unable, on account 
of poverty, to employ legal counsel on their own behalf. 
The charter was approved by a New York Court, authoriz-

# Letters of consent to the filing of this Brief from counsel for 
the petitioners and the respondents have been filed with the Clerk 
of the Court.



2

ing the organization to serve as a legal aid society. The 
NAACP Legal Defense and Educational Fund, Inc. (LDF), 
is independent of other organizations and is supported by 
contributions from the public. For many years its attor­
neys have represented parties in this Court and the lower 
courts, and it has participated as amicus curiae in this 
Court and other courts, in cases involving many facets of 
the law.

Attorneys for the Legal Defense Fund have handled 
many cases involving Title V II of the Civil Rights Act of 
1964 and discrimination in employment generally. Among 
these were the two cases in this Court that have established 
the basic principles regarding the validity of tests and 
other employee selection criteria under Title VII. Griggs 
v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper
Co. v. Moody, —  U.S. ------ , 45 L.Ed.2d 280 (1975).
Amicus has a continuing interest in the development and 
application of the decisions in those cases because of its 
extensive involvement in all facets of Title VII litigation.

ARGUMENT

I.

Petitioners’ Arguments Would Render Title VII In­
effective as a Bar to Discriminatory Employment Cri­
teria.

Amicus urges that the arguments of petitioners are con­
trary to established law, particularly as expressed in Griggs 
v. Duke Power Co., 401 U.S. 424 (1971), and Albemarle
Paper Co. v. M oody,------ U .S .------- , 45 L.Ed.2d 280 (1975),
and that their acceptance would seriously undermine the 
effectiveness of Title VII as it applies to all employers.



3

A. Adverse Impact.

It is undisputed that the test in question here excluded 
blacks from consideration at a rate three times that of 
whites. Nevertheless, petitioners urge that there is no 
“adverse impact” because their overall hiring policies 
have resulted in an appropriate percentage of blacks on 
the Washington, D. C. police force. The argument is 
wrong for a number of reasons.

1. In essence, the petitioners’ argument is that if an 
employer hires a percentage of blacks equal to the pro­
portion of blacks in the relevant geographical area,1 then 
a court may not examine or hold illegal the employment 
criteria used in the process. What is being argued for 
is quota hiring in its true and invidious form, i.e., the 
hiring up to and no more than a set number of blacks.2 
Thus, for example, an employer living in an area where 
20% of the population eligible for employment is black, 
could hire 20 blacks out of every 100 employees. The 
21st black could be denied employment because of his 
race, and no inquiry would be possible since the proper 
percentage was achieved. Thus there would be no “ dis­
proportionate racial impact . . . traceable to selection 
practices considered as a whole” (Brief for Petitioners, 
p. 12), as opposed to the particular practice of rejecting 
the 21st black “ considered in isolation” (Ibid.). In the 
present case, although the test excluded one out of every 
two blacks, as opposed to about one out of six whites, it

1 The relevance of the 7,500 square miles petitioners seek to use 
is discussed, infra.

2 An upper-limit quota is to be distinguished from a goal or 
standard (often erroneously called a quota), i.e., a minimum, num­
ber of a minority group to be aimed for as a demonstration that 
employment practices are not discriminatory.



4

is, according* to petitioners, not “ discriminatory” because 
the police department has met its quota by other means.

Of course, Griggs v. Duke Power Co. and Albemarle 
Paper Co. v. Moody, do not hold that the focus is on the 
overall process to the exclusion of the particular pro­
cedures used. To the contrary, the issue in both cases 
was precisely whether uthe tests in question” ,3 “ operate 
to exclude Negroes” 4 disproportionately. Petitioners fail 
to understand that the ultimate inquiry in a Title VII case 
is whether particular individuals have been denied their 
right to be free of discrimination. A  black applicant 
who is denied employment because the employer’s quota 
is filled, or because he is required to pass a test that 
excludes blacks, does not have his rights vindicated be­
cause someone else has been hired. Indeed, in Phillips v. 
Martin Marietta Corp., 400 U.S. 542 (1971) the employer 
similarly argued that because 70-75% of the applicants 
for the job in question and 75-80% of those hired were 
women, there was no discrimination against women shown. 
The Court rejected this argument because the challenged 
rule—barring women with pre-school-age children from 
hire—excluded the plaintiff because of her sex. The fact 
that most women were not denied employment was irrele­
vant to whether the particular practice in question was 
illegal.

2. Petitioners assert that their overall hiring practices 
are valid because the proportion of blacks hired is close 
to that in the geographical area from which the pool of 
applicants comes. The acceptance of their argument would 
render meaningless the extensive body of law permitting

3 Albemarle Paper Co. v. Moody, 45 L.Ed.2d at 301.
4 Griggs v. Duke Power Co., 401 U.S. at 431.



5

a prima facie case of discrimination to be made through 
statistical data,5 by permitting employers to manipulate 
the relevant population pool. Petitioners assert that be­
cause they recruited outside the immediate metropolitan 
area the relevant area has a radius of 50 miles. This 
more than 7500 square mile area is three times the size 
of the Standard Metropolitan Statistical Area,6 and en­
compasses not only the District of Columbia and its im­
mediate suburbs, but most of Maryland, including Balti­
more and Annapolis, and half-way to Richmond.7

Once an employer can arbitrarily adopt any geographical 
area, it can so manipulate statistical data as to be able to 
defeat any claim of racial discrimination in hiring. Thus, 
for example, the use of a 50 mile radius for an Oakland, 
California, based company would sweep in an area past 
San Jose to the South and include suburban areas that are 
nearly all-white. Similar results would obtain for heavily 
black cities such as Chicago, Detroit, and Cleveland. All 
an employer would have to do would be to conduct some 
recruitment in a location to include not only it but every­
thing between it and his place of business. Clearly, par­
ticularly for an employer such as a police department whose

5 See, e.g., Castro v. Beecher, 459 F.2d 725, 728 (1st Cir. 1972); 
United States v. Local 638, 360 F. Supp. 979, 989 (S.D. N.Y. 
1973), aff’d sub nom. Bios v. Enterprise Ass’n Steamfitters Local 
638, 501 F.2d 622 (2d Cir. 1974) ; United States v. United Ass’n 
of Journeymen & Apprentices, 314 F. Supp. 160 (S.D. Ind. 1969). 
See also, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-805 
(1973).

6 See, Statistical Abstract of the United States, p. 870 (1971 ed.). 
Indeed, only 5 S.M.S.A.’s in the United States are over 7,500 Square 
miles.

7 A t one time petitioners recruited nation-wide, and amicus can 
only speculate • as to why the claim is not made that the entire 
country is the relevant recruitment area, So that a 12% black 
population figure can be used.



6

activities are limited to the immediate metropolitan area, 
the logically relevant geographical area would be the city, 
county or the immediate suburbs, i.e., those places where 
in fact the great bulk of employees reside.8

B. The Validity of the Test.

Petitioners’ argument as to the validity of the test used 
must also be rejected as inconsistent with Title VII. An 
employer could set up a three-tiered system of tests— 
training—job and only show a relationship between test per­
formance and training performance to circumvent Griggs 
and Moody. He would never have to demonstrate that 
performance either on the test or the training was a valid 
measure of job performance. He would be able to insulate 
his selection process from the ultimate relevant question 
in a Title Y II case, viz., is the disproportionate exclusion 
of minorities from a job justified? Thus, there would be 
no determination:

“whether the criteria actually considered were suffi­
ciently related to the [employer’s] legitimate interest 
in job-specific ability to justify a testing system with 
a racially discriminatory impact.” Albemarle Paper 
Co. v. Moody, 45 L.Ed.2d at 305.

8 Typically, concentrations of blacks in the inner city are sur­
rounded by white residential areas. Thus, a fifty-mile radius would 
maximize the whites in the pool without regard to whether they 
belong to the socio-economic groups most likely to be interested in 
the job at issue. For example, a 50-mile radius in the San Fran­
cisco Bay Area, New York, or Cleveland would include suburbs 
and counties with some of the highest median incomes in the United 
States (Marin County, Westchester County, and Shaker Heights, 
respectively). Residents in such areas would be the least likely to 
even apply for the kinds of industrial, police or fire department 
jobs at issue in the typical Title Y II case. I f the city itself and 
its immediate suburbs are used as the relevant area, on the other 
hand, the population, both white and black, is much more likely to 
accurately reflect the actual applicant pool.



7

Similarly, the petitioners’ suggestion that the require­
ment that objective validation standards must demonstrate 
a “manifest job relationship” (Griggs v. Duke Power, 401 
U.S. at 432; see also Albemarle Paper v. Moody, 45 L.Ed.2d 
at 301, 306-307), be replaced with a subjective standard 
must be rejected. The Courts have accorded deference to 
the EEOC guidelines precisely because they embody such 
a requirement. The vague Civil Service Commission stan­
dard that a “ rational relationship” be shown is simply not 
in accordance with the attainment of the objectives of 
Title VII. There can be no assurance of, in the words of 
this Court, “equality of employment opportunities and [the 
elimination of] those discriminatory practices and devices 
which have fostered racially stratified job environments,” 9 
if such a standard is all that must be met. Thus, the adop­
tion of petitioners’ arguments would result not only in the 
effective overruling of Moody and Griggs, but the overturn­
ing of a body of case law in the lower courts that has made 
equality in employment a reality for blacks and other 
minorities.10

II.

Police Department Selection Policies Should Be Sub­
ject to the Same Standards as are Those of Other Em­
ployers.

No one would quarrel with the general proposition that 
police departments must be able to select persons fully 
qualified for police work. But petitioners’ apparent conten­
tion that police departments must therefore be free to im­

9 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). 
See also, Alexander v. Gardner-Denver Go., 415 U.S. 36, 44 (1974); 
Albemarle Paper Co. v. Moody, 45 L.Ed.2d at 296-300.

10 See, e.g., Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 
1017 (1st Cir. 1974) ; Chance v. Board of Education, 458 F.2d 1167 
(2d Cir. 1972); United States v. Georgia Power Co., 474 F.2d 906 
(5th Cir. 1973).



8

pose whatever qualifications they deem “ rationally related” 
to such work must be rejected. The issue in a Title VII 
lawsuit against the police, as in one against any other 
employer, must be whether job qualifications that screen 
out disproportionate numbers of minorities are in fact 
shown to be manifestly related to job performance. This 
burden cannot be met by generalized assertions as to e.g., 
the necessity for verbal skills, without a professionally 
acceptable demonstration that such skills are in fact neces­
sary for the position.

Petitioners’ discourse on opinions expressed in various 
President’s commissions’ reports (Brief for Petitioners, 
pp. 18-22) is notable in its omission of the same reports’ 
emphasis on the necessity of increasing minority repre­
sentation in urban police departments. Thus, for example, 
the National Advisory Commission on Civil Disorders 
found:

[T]hat for police in a Negro community to be pre­
dominantly white can serve as a dangerous irritant; 
. . . Negro officers also can increase department in­
sight into ghetto problems. . . . 11

Similarly, the Second Circuit, in a decision applying a 
strict standard of validation rather than a “ rational basis” 
test, noted:

[TJhis is not a private employer and not simply an 
exercise in providing minorities with equal oppor­
tunity employment. This is a police department and 
the visibility of the Black patrolman in the community 
is a decided advantage for all segments of the public 
at a time when racial divisiveness is plaguing law en­
forcement. Bridgeport Guardians v. Bridgeport Civil 
Service Commission, 482 F.2d 1333,1341 (2d Cir. 1973).

11 Report, p. 165 (U.S. Government Printing Office, 1968).



9

The lower courts have found that there is no irreconcil­
able conflict between the two concerns thus expressed, i.e., 
having non-discriminatory, valid employment criteria and 
thereby increasing black representation, and selecting qual­
ified police officers. See, Arnold v. Ballard, 390 F. Supp. 
723 (N.D. Ohio 1975); Officers for Justice v. Civil Service 
Commission, 371 F. Supp. 1328 (N.D. Cal. 1973). Cf., 
Castro v. Beecher, 365 F. Supp. 655 (D. Mass. 1973). And 
in cases involving not only police but fire and corrections 
departments, the lower courts have required the develop­
ment of new examinations that will serve both functions. 
See, e.g., Vulcan Society v. Civil Service Commission, 490 
F.2d 387 (2d Cir. 1973); Kirkland v. New York State Dept, 
of Correctional Services, 520 F.2d 420 (2d Cir. 1975); 
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971). In these 
cases the courts have been able to assess the feasibility of 
requiring selection methods that meet Title VII standards 
without interfering with legitimate personnel standards. 
The experience of amicus in similar cases also has been 
that the district courts are fully capable of exercising their 
equitable discretion so as to fashion remedies that achieve 
a proper balance between these interests. Thus, in a num­
ber of our cases, following a showing of discriminatory 
impact of non-validated tests, appropriate orders have 
been entered, a number by consent, requiring police and 
fire departments to restructure their selection methods. 
In none of these has there been a decline in the quality of 
personnel or level of performance as a result.12

12 Alexander v. City of Augusta (S.D. Ga., No. 1777); Bell v. 
City of Jackson (S.D. Miss., C.A. No. 72-J-153) ; Shield Club v. 
City of Cleveland (N.D. Ohio, No. C-72-1088) ; Headon v. City of 
Cleveland (N.D. Ohio, No. C-73-330); North State Law Enforce­
ment Officers Ass’n v. City of Charlotte (W.D.N.C. No. 2938).



10

CONCLUSION

For the foregoing reasons, the decision of the conrt 
below should he affirmed.

Respectfully submitted,

Jack Greenberg 
James M. N abrit, III 
Charles S tephen R alston 
B arry L. Goldstein 
D eborah M. Greenberg 
E ric S chnapper 
0 . P eter S herwood 

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Amicus Curiae



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