Pegues v. Mississippi State Employment Service Brief for Plaintiffs-Appellants
Public Court Documents
July 21, 1981
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 80-3212
ROSIE LEE PEGUES, et al.,
Plaintiffs-Appellants,
v.
MISSISSIPPI STATE EMPLOYMENT SERVICE,
UNITED STATES SECRETARY OF LABOR, and
UNITED STATES EMPLOYMENT SERVICE, et al■,
Defendants-Appellees.
On Appeal from the United States
District Court for the Northern
District of Mississippi
BRIEF FOR PLAINTIFFS-APPELLANTS
WILLIAM L. ROBINSON
RICHARD T. SEYMOUR
LESTER GOLDNER
Lawyers' Committee for Civil Rights
Under Law
520 Woodward Building
733 Fifteenth Street, N.W.
Washington, D. C. 20005
NAUSEAD STEWART
Lawyers' Committee for Civil Rights
Under Law
720 Milner Building
210 South Lamar Street
Jackson, Mississippi 39201
DOROTHY A. WINSTON
824 Second Avenue, North
Columbus, Mississippi 39701
Attorneys for Plaintiffs-Appellants
Dated: July 2.1, 1981
Pegues v. Mississippi State Employment Service, No. 80-3212:
CERTIFICATE OF INTERESTED PERSONS
The undersigned, counsel of record, certifies that the fol
lowing listed persons and agencies have an interest in the outcome
of this case. These representations are made in order that the Judges
of this Court may evaluate possible disqualification or recusal.
Plaintiffs: and Plaintiffs-Intervenors:
Rosie Lee Pegues
Rebecca Gillespie
Mary Boyd
Robert Williams
Percy Bell
Sletta D. Brown
Mary Hervey
Christine Hodges
Phillip Milan
Pauline Willis
Minority Peoples Council on the Tennessee-Tombigbee Waterway
Defendants:
Mississippi State Employment Service of the Mississippi Employment
Security Commission
Ernest Lindsey
John Aldridge
United States Secretary of Labor
United States Employment Service
Class Members:
All black, and all female, past, oresent, and future applicants for
employment referrals through the Bolivar County branch office of
MSES (certified class)
All black, and all female, past, present, and future applicants for
employment referrals through MSES (proposed Statewide class for
injunctive purposes only)
RICHARD T. SEYMOUR
Attorney of Record for Plaintiffs-
Appellants
STATEMENT CONCERNING ORAL ARGUMENT
Plaintiffs-appellants request the Court to hold an oral
argument in this case. This appeal comes to the Court after a three-
week trial, in the course of which some hundreds of exhibits were
received and numerous witnesses testified. The opinion below did
not go into the facts in detail, and plaintiffs believe that oral
argument would be of substantial assistance to the Court in coming
to grips with the record. Moreover, the testing issues in this
case are complex, and oral argument may well help clarify them for
the Court,
INDEX
Page
Table of Authorities vi
Statement of Issues 1
Statement of the Case 2
A. Course of Proceedings and Disposition in the Court Below 2
B. Statement of the Facts 5
1. The Parties 5
2. The Importance of the Functions Performed by MSES 6
3. Stipulated Practices of MSES in Classifying and
Referring Applicants 8
4. Evidence of Discrimination in Referrals 9
a) The Acceptance and Servicing of Job Orders
with Stated Sex Preferences 9
b) Racially and Sexually Segregated Referrals
on Job Orders 11
c) Selecting Applicants for Referrals on the
Basis of Unvalidated Educational Requirements 15
d) Selecting Applicants for Referrals on the
Basis of Unvalidated Experience Requirements 18
e) Comparison of Classifications and Referrals
in 1970 19
f) Sharp Increases in the Rates of Black Referrals
After the Filing of Suit 21
g) Sharp Increases in the Rates of Black Referrals
to Material Handler Jobs, After the Cessation
of Business with Travenol Laboratories Made it
a Lower-Paid Job Area 23
h) Racial and Sexual Differences in the Rates of
Pay for Jobs to Which Referrals Were Given,
1970-1978 24
i) Racial and Sexual Differences in Rates of
Referrals 27
j) Referrals Out-of Code 27
-i-
k) Other Classwide Evidence of Discrimination
in Referrals 28
1) Dr. Malone's Analysis 30
m) The Defense that Job Openings Were Scarce 34
5. Evidence of Discrimination in the Classification
of Applicants 35
a) The Relationship Between Classification
and Referral 35
b) The Process by Which Occupational Codes
Are Assigned 36
c) Classifications and Referrals in Service
and Farmwork Occupations 40
d) Sharp Increases in the Numbers of Black
Women Assigned to Clerical and Sales Codes
After the Filing of Suit 43
e) Racial and Sexual Differences in the Class
ification of Female Applicants with a Seventh-
Grade or Lower Level of Education, 1974 44
f) Other Evidence of Discrimination in Class
ification 44
6. Discrimination in Testing 47
a) Evidence of Disproportionately Adverse Impact
of the Challenged Tests on Blacks 48
b) Evidence as to Validation 53
1) Evidence Other Than Dr. Hunter's
Testimony 53
2) Dr. Hunter's Testimony 58
7. The Named Plaintiffs and Class Member Witnesses 63
8. Evidence on Class Determination 65
Summary of Argument 66
Argument 67
A. Plaintiffs Established a Prima Facie Case of Discrimination
Which Has Not Been Rebutted 67
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72
B. Plaintiffs Have Shown That the Challenged Tests Had a
Racially Disparate Inpact and the Defendants Have Not
Shown That They Were Valid
C. The District Erred in Granting Summary Judgement for the
Federal Defendants 75
D. The District Court Erred in Failing to Certify a State
wide Class 77
Conclusion 78
-in-
8
12
13
21
22
23
23
24
25
26
26
33
32
34
LIST OF TABLES
Percentage of Non-agriculture Referrals Resulting
in Hire, as Shown on the State Defendants' Self-
Appraisal Forms
Referrals to Travenol on Material Handler and
Assembles Job Orders (Plaintiffs' Exhibit 1,
Volume III)
Standard-Deviation Analysis of Referrals of
Women on Material Handler and Assembler Job
Orders frcm December 1969 through May 1970
(Travenol laboratories)
Rates of Classification and of Referral,
by Race and Sex in 1970
Standard Deviation Analysis of Rates of
Classification and of Referral in 1970
Proportions of Referrals Given to Blacks,
1970-1973
Proportions of Male Referrals to Structural
Work Jobs Other than Construction labor, and
to Construction labor Jobs, Given to Blacks,
1970-1973
Proportions of Referrals to Material Handler
Jobs Given to Blacks, 1970-1973
Average Hourly Pay Rates Per Referral Given,
1970-1973
Average Hourly Pay Rates Broken Down by
Applicants' Level of Education, per Referral
Given, 1975-1976
Average Hourly Pay Rates, Broken Down by Status
as Veteran or Nonveteran, per Male Referral
Given, 1975-1976
Percent of Job Orders Falling Within Dr. Malone's
Group 2 or Group 3 (Questionable Probability or
High Probability That More Referrals to the Job
Order in Question Should Have Been Given)
No. of Job Orders Closed. Without Referrals, or
Closed With One Referral
Numbers of Referrals Made on Job Orders, 1970-1972
-IV-
41
Table 15 Referrals of Black Women to Service Occupations,
1970-1973 41
Table 16 Results of Efforts to Upgrade the Codes of Male
Applicants With an 8th-Grade or Better Level of
Education, Classified in Service or Farmwork
Codes, 1970-1976 43
Table 17 Increases in the Numbers of Black Women Assigned
to Clerical and Sales Codes, FY 1972 to FY 1974 43
Table 18 Standard-Deviation Analysis of the Referrals to
the Nurse's Aide Training Program at East Bolivar
County Hospital 48
Table 19 Test Results fot the Licensed Practical Nurse
SATB Reported on Application Forms 51
Table 20 Standard-Deviation Analysis of the Test Results
for the Licensed Pratical Nurse SATB Reported on
Application Forms 52
-v-
TABLE OF AUTHORITIES
A. Cases
Pages
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) 74,75
Baxter v. Savannah Sugar Refining Corp.,
495 F.2d. 437 (5th Cir.), cert. den.
419 U.S. 1033 (1974) 71
Boston Chapter NAACP v. Beecher,
504 F.2d 1017 (1st Cir., 1974), cert,
den., 421 U.S. 910 (1975) 74-75
Burns v. Thiokol Chemical Corp.,
483 F .2d. 300 (5th Cir., 1973) 74
Corley v. Jackson Police Dept.,
566 F .2d. 994 (5th Cir., 1978) 68
Davis v. Califano,
613 F .2d. 957 (D.C. Cir., 1979) 69
Diaz v. Pan American World Airways,
442 F.2d. 385 (5th Cir.,), cert, den.,
404 U.S. 950 (1971) 69
Dothard v. Rawlinson,
433 U.S. 321 (1977) 69,72
EEOC v. United Virginia Bank,
615 F-2d 147 (4th Cir., 1980) 68
Ensley Branch of NAACP v. Seibels,
616 F.2d. 812 (5th Cir.), cert, den.,
66 L.Ed.2d 603 (1980) 73,75
Falcon v. General Telephone Co. of the Southwest,
626 F.2d. 369 (5th Cir., 1980), vacated
and remanded on other issue, 49 U.S. Law
Week 3743 (1981), opinion reinstated in
relevant part, 647 F.2d. 663 (5th Cir.,
1981) 69
Geller v. Markham,
635 F .2d. 1027 (2nd Cir., 1980) 73
Grant v. Bethlehem Steel Corp.,
635 F.2d 1007 (2nd Cir., 1980), cert, den.,
49 U.S. Law Week 3926 (1981) 69
- vx-
Pages
Griggs v. Duke Power Co.,
401 U.S. 424 (1971) 70
Hameed v. Int'l Ass'n of Bridge Workers,
637 F .2d 506 (8th Cir., 1980) 68
Interstate Circuit v. United States,
306 U.S. 208 (1939) 73
Int'l Bhd. of Teamsters v. United States,
431 U.S. 324 (1977) 68,71,72
James v. Stockham Valves & Fittings Co.,
559 F.2d. 310 (5th Cir., 1977) , eert.
den., 434 U.S. 1034 (1978) 69,71,72,75
Johnson v. Goodyear Tire & Rubber Co.,
491 F .2d. 1364 (5th Cir., 1974) 70
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) 71
Parson v. Kaiser Aluminum & Chemical Corp.,
575 F.2d. 1374 (5th Cir., 1978), cert.
den., 441 U.S. 968 (1979) 70,71
Payne v. Travenol Laboratories,
565 F.2d. 895 (5th Cir.), cert. den..
439 U.S. 835 (1978) 77
Phillips v. Joint Legislative Committee,
637 F.2d. 1014 (5th Cir., 1981) 69
Rogers v. Int'l Paper Co.,
510 F.2d. 1340 (8th Cir.), vacated
on other grounds, 423 U.S. 809 (1975),
modified in other respects, 526 F.2d.
722 (8th Cir., 1975) 74,75
Rowe v. General Motors Corp.,
457 F .2d. 348 (5th Cir., 1972) 68,75
Shelak v. White Motor Co.,
581 F .2d. 1155 (5th Cir., 1978) 73,74
Sledge v. J.P. Stevens & Co.,
585 F .2d 625 (4th Cir., 1978), cert.
den., 440 U.S. 981 (1979) 70,72
Swint v. Pullman-Standard,
539 F .2d. 77 (5th Cir., 1976) 69
Pages
Texas Dept, of Community Affairs v. Burdine,
U.S. , 67 L .Ed.2d 207 (1981) 71
United States v. City of Chicago,
59-9 F.3d. 415 (7th Cir.), cert, den.,
434 U.S. 875 (1977) 74,75
United States v. County of Fairfax,
629 F .2d. 932 (4th Cir., 1980) 69
United States v. Georgia Power Co.,
474 F .2d. 906 (5th Cir., 1973) 70,74
United States v. Jacksonville Terminal Co.,
451 F .2d. 418 (5th Cir., 1971), cert,
den., 406 U.S. 906 (1972) 74
Vulcan Society of N.Y.C. Fire Dept. v. Civil
490 F .2d. 387 (2nd Cir., 1973)
Service Comm’n,
72
Vuyanioh v. Republic Nat'l Bank of Dallas,
505 F. Supp. 224 (N.D. Tex., 1980) 68,72
Ward v. Apprice,
6 Mod. 265 (Q.B., 1705) 73
Weeks v. Southern Bell Telephone & Telegraph
408 F.2d. 228 (5th Cir., 1969)
Co.,
69
B. Constitution. Statutes, Regulations and Rules
Constitution, Fifth Amendment 4
Constitution, Thirteenth Amendment 4
Constitution, Fourteenth Amendment 4
Equal Employment Opportunity Act of 1972,
Pub.L. 92-261, 86 Stat. 103 4,75,76,77
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. passim
§701 (c) of the Civil Rights Act of 1964,
78 Stat. 253-54 75,76
42 U.S.C. §1981 4
42 U.S.C. §1983 4
EEOC Guidelines,
29 C.F.R. §§ 1607.1 et seq. (1972),
reprinted in relevant part at 2a 75
-viii-
Pages
Uniform Guidelines on Employee Selection Procedures,
29 C.F.R. §§ 1607.1 et seq. (1980)
reprinted in relevant part at
Rule 52(a), F.R.Civ.P.
C. Other Authorities
American Psychological Association,
Standards for Educational & Psychological
Tests (1971+)
2 Conrad, Modern Trial Evidence
§960 (1956)
Senate Subcommittee on Labor of the Committee on Labor and
Public Welfare, "Proposed Equal Employment
Opportunities Enforcement Act of 1971, S.2515,
S.2617, and H.R.17M-6, Bill Texts, Section by
Section Analyses, Changes in Existing Law,
Comparison of Bills Introduced" (1971) (Reprinted
in Legislative History of the Equal Employment
Opportunity Act of 1972 (1972))
2 Wigmore, A Treatise on the Anglo-American System of Evidence
§291 (3rd ed., 191+0)
67 ,73,7i+,75
68
57,74
73
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 80-3212
ROSIE LEE PEGUES, et al.,
Plaintiffs-Appellants,
v.
MISSISSIPPI STATE EMPLOYMENT SERVICE,
UNITED STATES SECRETARY OF LABOR, and
UNITED STATES EMPLOYMENT SERVICE, et al.
Defendants-Appellees.
On Appeal from the United States
District Court for the Northern
District of Mississippi
BRIEF FOR PLAINTIFFS-APPELLANTS
STATEMENT OF ISSUES
1. Did the district court err in finding that the State and the Federal
defendants had not discriminated against black, and against female, applicants
for employment referrals at the Bolivar County branch office of the Mississippi
State Employment Service ("MSES") and at other branch offices across the State?
2. Did the district court err in allowing the Federal defendants to
present surprise expert testimony on test validation at the trial, where the
expert propounded novel theories on which the Court relied, and where the
effect of this surprise manuever was to deprive plaintiffs of any effective
opportunity either to discover any problems which may have existed in the
research on which he based his theories, or to prepare for effective cross-
examination?
3. Did the district court err in holding that the 1972 amendments to
Title VII of the Civil Rights Act of 1964- withdrew that Act's coverage of the
United States Employment Service?
<4. Did the district court err (a) in denying the applications of a
number of blacks, harmed by the identical practices of MSES in other counties,
to intervene as plaintiffs in this case, and (b) in denying plaintiffs' motion
to certify a Statewide class for the purposes of injunctive relief?
STATEMENT OF THE CASE
A. Course of Proceedings and Disposition in the Court Below
The plaintiffs filed their original EEOC charges in March 1970, and
timely filed the Complaint after receipt of Notices of Right to Sue. They
filed supplemental charges in 1973 and 1974, and timely moved to amend the
Complaint after receipt of additional Notices. The motions were granted.
1/
(Stipulation, 59 2-5; stipulation exhibits 2-6, 10-13, 16-19, 21-24; R. 1,
2/
862, 866, 1497, 1609.
The original and amended Complaints in this action alleged across-the-
board classwide discrimination against blacks and against women who applied to
MSES for referrals to employers with available job vacancies. (R. 4-6, 129-33)
The original Complaint alleged a countywide class, and the Amended Complaint
1/ The stipulation and the stipulation exhibits were received in
evidence at trial. (Tr. 45.) All "Tr." references are to the trial transcript.
2/ The original and Amended Complaints alleged both racial discrimina
tion against blacks and sexual discrimination against women. (R. 4-6, 129-33.)
One of the original plaintiffs, Willie Mae Payne, had alleged both race and
sex discrimination in her 1970 EEOC charge. (R. 154). On January 10, 1974---
while the Order has a typed 1973 date, this is clearly In error--she was
dropped as a named plaintiff. (R. 544) . The EEOC charges filed in January
and March, 1974, by plaintiffs Pegues, Gillespie and Boyd alleged both race
and sex discrimination. (Stipulation, 99 2-5; stipulation exhibits 4, 12
and 23) .
-2-
alleged a Statewide class. (R. 3, 128) . On April 3, 1974-, plaintiffs moved to
certify such a Statewide class. (R. 633). On November 16, 1977, six unsuccess
ful black applicants for employment referrals at the Aberdeen, Amory, Green
ville, Picayune, Tupelo, and West Point offices of MSES, as well as the
Minority Peoples Council on the Tenessee-Tombigbee Waterway, applied for
leave to intervene as plaintiffs and additional class representatives, to
strengthen class representation and to support certification of a Statewide
class. (R. 1561-63). On February 6, 1978, the named plaintiffs modified their
197M- motion to seek certification of a Statewide class solely for purposes of
obtaining a declaration on liability and for injunctive relief. (R. 1671).
At a hearing held on February 27, 1978, the district court announced
that it would not certify a Statewide class, but would grant Statewide
injunctive relief if plaintiffs proved Statewide discrimination, arising from
practices similar to those followed in the Bolivar County office. (February
27, 1978 Hearing Tr. 253-56, App. 93-96). The orders denying the applications
for leave to intervene, and certifying a countywide class of blacks and of
women seeking employment referrals at the Bolivar County branch office of MSES,
were entered on March 8, 1979. (R. 1782A, App. 59; R. 1788, App. 61).
The defendants are described in Stipulation 6-21, and the claims
against them were set forth in the Amended Complaint (R. 125). Mr. Lindsey has
been Manager of the Bolivar County branch office of MSES since November 1968,
and Mr. Aldridge was Executive Director of the Mississippi Employment Security
Commission, which operates MSES, from July 1960 until February 1978. The State
defendants have asserted a cross-claim against the Secretary, alleging that any
liability on their part was "was the result of policies the U.S. Secretary of
3/ The Minority Peoples Council alleged that it had 800 members in
Mississippi alone, and that some of its members had claims against MSES.
-3-
Labor has required. MSES to follow." (R. 610; R. 2035, App. 70) .
On March 28, 1978, the district court entered summary judgment on all
claims raised by plaintiffs against the Federal defendants, holding that the
1972 amendments to Title VII withdrew the United States Employment Service
from the reach of Title VII, that the United States was immune from suit under
42 U.S.C. §1981 and the Thirteenth Amendment, and that the pleadings and the
record did not show intentional conduct in violation of the Fifth Amendment.
The State defendants' cross-claim against the Secretary was allowed to stand.
(R. 1791, App. 63) .
On December 27, 1978, the district court entered the agreed Pretrial
Order, to which witness lists were then attached. Paragraph 18 of the Order
recited that it would control the course of trial, and that "it may not be
amended except by consent of the parties and the Court, or by order of the
Court to prevent manifest injustice." (R. 2034B, 204-2, App. 69, 77).
Six days before the start of trial, the Federal defendants notified
plaintiffs of their intention to call an expert witness, John Hunter, Ph.D., to
testify on the test validation issues. (R. 2076). These issues had been
present in this case since the filing of the original Complaint. (R. 5).
Plaintiffs took a hurried deposition of Dr. Hunter on July 5 and 6, 1979. The
Federal defendants moved on the first day of trial for leave to call Dr. Hunter,
i+/ The original Complaint alleged violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,_and of 42 U.S.C. §§ 1981 and
1983 (R 2). The Amended Complaint alleged violations of these provisions,
and 'also alleged violations of the Fifth, Thirteenth and Fourteenth Amendments.
(R. 134, 137). Allegations of claims arising under other provisions have been
dismissed, (R. 1240; R. 1791, App. 63), and are not involved on this appeal.
5/ Fourteen months before the entry of this ruling, plaintiffs had^
filed their Second Motion to Compel Discovery, seeking to obtain information
bearing on this question (R. 1287). The district court denied the discovery
motion a month before it entered summary judgment against plaintiffs because
of their failure to produce such information. (R. 1790, App. 62) .
4/
-4-
(R. 2075), and plaintiffs opposed the motion on the grounds that Dr. Hunter
was being called to support a novel approach to test validation which was radi
cally different from the work previously done in the field, that he was going to
rely on 26 articles which he had published or which were in the process of being
published, that plaintiffs had received only 16 of the 26 articles by the Friday
evening before the start of trial, that the subject matter of Dr. Hunter’s
testimony was very involved, and that it would be extremely difficult for
plaintiffs’ counsel to be able to check his work and to conduct an effective
cross-examination. (Tr. 14— 16). The Court granted the Motion. (Tr. 16-18;
6/
R. 2080, App. 78) .
Trial was held from July 9 through July 26, 1979. The district court
entered its decision on March 10, 1980, finding all issues in favor of the
defendants. (Decision, R. 2110, App. 79) . Judgment was entered against
plaintiffs on their claims against the defendants, and was entered against the
MSES defendants on their third-party claim against the Federal defendants. (R.
2174, App. 137) . Plaintiffs filed their Notice of Appeal on March 14-, 1980.
(R. 2175) .
B. Statement of the Facts
1. The Parties
The four named plaintiffs are black residents of Bolivar County who
attempted to obtain employment through the services of the Bolivar County branch
office of MSES. Three are female, and one is male. They did not seek employ
ment with MSES, but sought referrals to employers with jobs available to be
6/ While plaintiffs were also allowed to call an additional expert, they
did not do so because there was not sufficient time for such an expert to study
Dr. Hunter's research and to prepare meaningful testimony. Thus, the research
predicates of Dr. Hunter's opinion, on which the trial court placed heavy
reliance, were never subjected to any verification.
-5-
filled by hire. (Stipulation, 59 2-5; stipulation exhibits, 1, 7-9, 14—15,
and 20). Their claims are discussed at 63, infra.
2. The Importance of the Functions Performed by MSES
The primary functions of MSES are to help job applicants to find employ
ment, and to help employers with job openings to fill their jobs. (Stipula
tion, 5 22) . One of the ways in which MSES is to serve its primary function
is to inform qualified applicants of job opportunities they had not known
existed, and thus may not have discovered on their own, and by referring them
to such vacancies. (Stipulation, 5 23). Providing information about such
job opportunities can be extremely important to black applicants, who may have
no other practical means of finding out about job vacancies for many local
7/
employers.
By agreement with local employers, MSES sometimes pre-screens all ap
plicants for production jobs and decides which applicants to refer. In such
cases, the employer will not consider any applicant who has not been referred
by MSES. From February 1965 to November 1971, for example, the Baxter
("Travenol") plant in Cleveland refused to consider applicants for its major
entry-level jobs-- Assembler and Material Handler-- unless those applicants
had first been referred by the Cleveland branch office. (Testimony of Olin
Taylor, the former Baxter personnel manager, Tr. 276-78; testimony of Mr.
Lindsey, Tr. 980-81). Mr. Lindsey thought that similar arrangements may have
existed with respect to two other large local manufacturers although he was
somewhat uncertain in his testimony, but he was convinced that MSES pre-screened
7/ Testimony of Rebecca Gillespie, Tr. 65-66; testimony of Mary Boyd,
Tr. 14-0-4-1. Both of these plaintiffs live in Mound Bayou. (Id.) . Mound Bayou
is an all-black city, and most job opportunities are in other parts of the
county. (Testimony of Calvin Jones, Tr. 1894-95, 1910).
-6-
all of the applicants for the Licensed Practical Nurse training program at
East Bolivar County Hospital. (Tr. 993-95) . Where an employer will only con
sider an applicant who has been referred by MSES, a refusal by MSES to refer an
applicant will bar that applicant from consideration for hire.
Referrals by MSES account for a substantial share of the hires by lar
ger local employers. Mr. Lindsey prepared an analysis of hires by the 85 or 90
8/
local employers with ten or more employees. In the time periods covered by
his analysis, the Bolivar County branch office was responsible for filling up to
43.9% of the new hires of these "major market" employers. From January 1969
through December 1970, a period which includes the filing of EEOC charges herein
the Bolivar County branch office placed 1,030 of the 3,356 new hires of these
"major market" employers, or 30,7% of the total. From January 1976 through
August 1978, the Bolivar County branch office placed 732 of the 3,421 new hires
of such employers, or 21.4% of the total. (Calculation of counsel from State
defendants' exhibit 32) .
While giving a referral to an employer with a job vacancy does not
guarantee that the person referred will be hired, the vast majority of persons
referred are in fact hired. This is true for all applicants in general, for
black applicants, and for female applicants. State defendants’ exhibits 44
through 52, and 55, contain monthly year-to-date statistics on nonagricultural
referrals and placements from 1973 through late 1978. They show the following:
8/ Testimony of Mr. Lindsey, Tr. 2226-27. Mr. Lindsey’s analysis did
not include placements with, or new hires of, the several hundred local employ
ers with fewer than ten employees. Tr. 2227-28.
-7-
Table 1. Percentage of Non-agricultural Referrals Resulting in Hire,
as Shown on the State Defendants’ Self-Appraisal Forms_____
Percentage of Non-Agricultural
State Referrals Resulting in Hire
Defendants’ Date of All Black 9/ Female
Exhibit No. Appraisal Form Applicants Applicants Applicants
55 11/9/73 93.1% 93.6% N.A.
94 7/5/74 75.2% 73.7% 70.3%
45 10/10/74 72.9% 70.7% 69.5%
46 6/26/75 71.4% 98.1% 69.8%
48 10/24/75 72.2% 64.7% 70.5%
49 6/8/76 76.2% 71.6% 73.2%
47 10/18/76 73.1% 68.5% 68.1%
50 6/10/77 67.5% 61.2% 77.8%
51 2/23/78 69.1% 63.8% 55.7%
52 8/16/78 67.7% 63.3% 61.8%
Thus, the decision whether or not to give a referral to an applicant
have a substantial effect on that applicant's chances of obtaining employment.
3. Stipulated Practices of MSES in Classifying and Referring
Applicants
The general operations of the Bolivar County branch office of MSES are
set forth in some detail in Stipulation 59 22-61. In summary, applicants for
employment referrals come to the office, are interviewed and occupational codes
are assigned to them. The code is supposed to represent the type of work for
which the applicant is best qualified. The actual practices of MSES in classi
fying applicants are described at 35-47̂ infra.
When a job order is received from an employer, the employer’s job is also
assigned an occupational code. MSES then makes referrals by matching the occu
pational codes of active applications with the occupational codes of active job
orders, and by matching the education, experience, and other requirements set
by the employer with the characteristics of the applicants being considered.
The actual practices of MSES in selecting applicants for referral are discussed
at 9-35, infra.
9/ Data for "Minorities" was used where data for blacks was not stated.
-8-
4-. Evidence of Discrimination in Referrals
a) The Acceptance and Servicing of Job Orders with
Stated Sex Preferences
Plaintiffs' exhibit 57 is a list of job orders, accepted and serviced
by the Bolivar County branch office of MSES from November 1969 through June
1973, which contained specifications that only men, or only women, be referred
on the job order. (Testimony of Linda Thome, Tr. 635-39) . The exhibit shows
that MSES honored the employers’ sexual preferences, referring only males on
job orders specifying an employer preference for males, and referring only
females on job orders specifying an employer preference for females.
The U.S. Department of Labor had cautioned all State Employment Services
in 1965, 1966, 1967, and 1970 that accepting and servicing such sex specifica
tions on job orders was unlawful under Title VII except where sex Is ”a bona
fide occupational qualification reasonably necessary to the normal operation
of that particular business or enterprise." (Stipulation 5 74, stipulation
exhibits 51, 52; Federal defendants’ exhibits 11, 17; State defendants’ exhibits
23, 26 (both documents)) . Stipulation exhibit 52 expressly cautioned State
Employment Services that they will "share responsibility with the employer" if
they service such sex preferences without evidence that they are a BFOQ, and
caution that a written record must be kept whenever a sex specification is
accepted as a BFOQ. On June 29, 1968, the U.S. Department of Labor wrote to
the defendant Aldridge, informing him that a review of the Cleveland (Bolivar
County) and other branch offices of MSES had shown that all of the offices in
vestigated were accepting and servicing discriminatory sex specifications on
job orders. (Plaintiffs’ exhibit 114, p. 10, part VI). In his August 19, 1968
response, Mr. Aldridge did not quarrel with the Department’s findings as to the
Cleveland office, and promised to institute a compliance review process.
-9-
(Plaintiffs’ exhibit 158 at p. 5). The problem was again brought to Mr.
Aldridge’s attention in an interoffice memorandum dated May 5, 1969. (Plain
tiffs’ exhibit 115, p. 3). Nevertheless, plaintiffs' exhibit 57 showed that
the problem continued in the Cleveland office for more than four years after
the date of this memorandum.
When questioned about this practice, Mr. Aldridge stated that he thought
"the sex part of the Act came along a little bit later", that "the Department
of Labor and the others were not quite as quick to tackle it", and that the
question was in "a transitory period for a while as to just what to do ... .’’
"And in the South we, some people just didn’t think that a woman ought to be in
certain things." Tr. 1226. Although plaintiffs' exhibit 114- had put Mr.
Aldridge on notice that the Cleveland office had engaged in this discriminatory
practice and that it should not be continued, Tr. 1227-28, he stated that he
"had no reason" to inquire thereafter whether the Cleveland office had stopped
the practice, and was not aware that it had continued until 1973. (Tr. 1229-30).
Mr. Lindsey also testified that he thought that "they didn’t start at the same
time. I think the sex came along later.” (Tr. 956-57). He testified that he
was unsure whether he had known in 1969 that the prohibition of sex discrimina
tion was in effect, but he thought he did. (Tr. 961). He had no personal
knowledge of the job orders listed on plaintiffs’ exhibit 57, and could not say
whether there was any investigation into the question whether those sex pre
ferences were justified as BFOQ’s; if there had been such an investigation and
it was not recorded on the job order, he knew of no place where it could have
been recorded. (Tr. 959-60). A Bulletin sent to MSES local office managers on
September 8, 1969, required any such investigations to be recorded on the job
order. (State defendants' exhibit 25, first document p. 2). The bulk of the
job orders in question were included in plaintiffs’ exhibits 1, 2, and 3, and
-10-
none of them show any sign of such an investigation.
Louis Beverly, Jr., the Equal Employment Opportunity officer for MSES
(Tr. 2239), agreed on cross-examination that State Defendants' exhibits 23 and
26 should have alerted the staff of the Cleveland office in 1966 and 1967 that
it was unlawful to engage in such practices. (R. 2289-91).
At trial, Mr. Lindsey was asked whether his office now accepted the
types of job orders shown on plaintiffs’ exhibit 57. He answered: "We do not.
I think our improvement, if that is what you want to call it, has gotten to
the point that we do not." (Tr. 963).
The trial court’s decision did not mention the evidence as to this prac
tice, but stated only that ”[l]ocal offices are prohibited from processing job
orders that contain unlawful sex specifications." (R. 2142, App. 108).
b) Racially and Sexually Segregated Referrals on Job Orders
Mr. Lindsey testified at trial that Travenol Laboratories required
applicants to its Cleveland plant to be referred by MSES before they would be
considered by the company, that this continued from at least 1965 through
November 1971, that he had never seen any sex specification on the master job
order forms for the Assembler and Material Handler jobs, and that he did not
remember any instructions from Travenol’s Personnel Manager as to the sex of
the referrals to be made on these two different jobs. (Tr. 980-85) . Travenol’s
former Personnel Manager, Mr. Taylor, also testified that he did not recall
authorizing MSES to refer only males on the Material Handler job orders and
10/ There can be no contention that the defendants were surprised by the
listing of job orders on plaintiffs’ exhibit 57, or that they had not had suf
ficient time to inquire into those job orders. Pursuant to the pretrial pro
cedure followed in the trial court, the parties exchanged exhibits prior to the
Pretrial Conference in October 1978 (see R. 2034B, 2038-40, App. 69, 73-75),
and Mr. Lindsey and Mr. Aldridge had thus had copies of this exhibit nine months
before the start of trial. (Plaintiffs’ exhibits 1 through 117 were included in
this exchange).
10/
-11-
11/
only females on the Assembler job orders. (Tr. 280, 285-86).
Plaintiffs' exhibit 1, volume III, shows referrals to Travenol on
Material Handler and Assembler job orders. The Material Handler job then paid
$2.21 an hour to start, and the Assembler job then paid $1.97 an hour to start.
(Id., pp. 31, 38) . Disregarding referrals for part-time positions, fid.. p.
46) , referrals marked "FWD" ("foreward") indicating the recordation of hires
of persons previously referred, and using MSES's own counts of referrals when
ever possible (e ,g,, p. 4) , it is clear that MSES referred only males on Materi
al Handler job orders in the six months ending in May 1970, and referred only
females on Assembler job orders in the same period of time:
Table 2. Referrals to Travenol on Material Handler and Assembler
Job Orders (Plaintiffs' Exhibit 1, Volume III)_________
Page No. in Referrals of Referrals of
PX-1, Vol. Ill Date of Job Order Males Females
Material Handlers:
14-15 12/1/69 39 0
16-17 1/2/70 41 0
22-23 2/2/70 21 0
29-30 3/2/70 24 0
-31-32 5/5/70 23 0
33 4/1/70 4 0
34-35 4/21/70 21 0
48 1/20/70 10 0
Total 183 0
Assemblers:
1-2 11/3/69 0 45
3-5 12/1/69 0 42
6-7 12/22/69 0 43
8-9 2/2/70 0 45
10-13 3/2/70 0 63
38-39 4/1/70 0 18
40-43 5/5/70 0 45
Total 0 301
11 / Stipulation exhibits 59 and 60 show that MSES used the occupational
titles "Packager, Solutions and Syringes" and "Table Worker" to describe the
lower-paid Assembler job, and the occupational titles "Material Coordinator”
and "Fork-Lift Truck Operator" to describe the higher-paid Material Handler
job. Mr. Lindsey agreed. (Tr. 986) . The exhibits show that neither of these
job categories required any prior experience, and that on-the-job training
would be provided in each.
-12-
(A table covering referrals for a shorter period of time was introduced as
plaintiffs’ exhibit 156).
37.9% of the 485 referrals were male, and 62.1% were female. Using
these proportions to indicate the availability of applicants of each sex for
these entry-level production jobs, Table 3 shows that it would be extremely
difficult to explain this result by chance:
Table 3. Standard-Deviation Analysis of Referrals of Women on Material
Handler and Assembler Job Orders from December 1969 through
May 1970 (Travenol Laboratories)_____________________________
Material Handler
Job Orders
Assembler
Job Orders
Availability of Women in Total Group
Referred for Both Jobs 62.1% 62.1%
Sample Size (No. of Referrals) 183 301
Expected No. of Female Referrals 114 187
Observed No. of Female Referrals 0 301
Difference - 114 + 114
Standard Deviation 6.6 •
00
No. of Standard Deviations Between Expected
and Observed Nos. of Female Referrals -17.3 +13.6
Mr. Lindsey was shown the job orders in plaintiffs’ exhibit 1, volume
III, and was asked to explain the sexually segregated referrals when the employ
er had not given MSES a sexual preference to follow. He said that he could not
explain it, that he thought there were sexually integrated referrals on later
job orders, and that he did not know what brought about that change. (Tr. 986-
12/
88, 992).
12/ One month after the last of the job orders reflected in Table 2, the
MSES defendants were served with copies of the plaintiffs’ EEOC charges.
(Plaintiffs’ exhibits 97, p. 1, and 101, p. 1). Some of the post-service-of-
charges job orders in plaintiffs’ exhibit 2, volume III, show both males and
females referred for the Assembler job (Id,, pp. 10 (a)-13 (c) , 15(a)-15(f), 17(a)
17 (i)) , although only males were referred on Material Handler job orders.
(Id., pp. 7 (a)-7 (c) , 19). MSES staff at State headquarters were aware of these
patterns of segregated referrals. (Plaintiffs’ exhibit 116).
-13-
A manual analysis of MSES referral records for the Bolivar County branch
office for the period from November 1969 through December 1970, the period in
which the initial EEOC charges in this case were filed, show that there were
185 job orders on which two or more applicants were referred. Of these, 175
job orders__ 94.6% of the total---resulted in either all-male or all-female re
ferrals, and H O -- 59.5% of the total---resulted in either all-white or all
black referrals. (Plaintiffs1 exhibit 58, p. 1; testimony of Linda Thome, Tr.
639-M-l, 681). Mr. Lindsey was asked for an explanation, but said that he
13/
could give no answer. (Tr. 992-93) .
The trial court did not address this evidence in its decision. Instead,
the court found nondiscrimination in reliance on Mr. Lindsey's testimony,
"based on random examination of referrals on job orders", that referrals "were
made without regard to the race or sex of the applicants referred", and on the
basis of its view that MSES performed nondiscriminatorily, within the limita
tions under which it labored. (R. 2123, 2125-26, App. 91-93).
The "random examinations" of job orders mentioned by the court below were
reflected in the "self-appraisal" forms introduced as State defendants' exhibits
14/
44-55. Typically, the self-appraisal forms in evidence recite that a "random
sample" of ten or so job orders was pulled from the file and found to be non-
discriminatory. However, Mr. Lindsey testified that he did not pull any
13/ This was not an isolated phenomenon. Calculations of counsel from
the 1972 job orders in evidence as plaintiffs' exhibit 3 show that there were
427 job orders with two or more referrals. Sex was identified for all refer
rals on 424 job orders. Of these, 402 or 94.8% of the total resulted in
referrals only of males, or only of females. There were 407 job orders with
race identified for all referrals. Of these, 214 job orders 52.6% of the
total resulted in referrals only of whites, or only of minorities.
14/ There was no self-appraisal form for 1970 or for 1971, and the
district court's rationale is therefore inapplicable to the situation at the
time the charges of discrimination were filed, or to the exhibits and testimony
concerning the Travenol job orders.
-14-
"random samples" from the files; he asked the interviewers whose conduct he
was examining to pull a "random sample" of the job orders they had handled.
(Tr. 2233-34-) . He admitted that he gave them no instructions to follow in
picking job orders for his review, because he believed that that would destroy
the randomness of the sample. (Tr. 24-58-59) . He further admitted that the
interviewers pulling out job orders for his review were probably aware that it
was for the purpose of filling out a civil rights self-appraisal form. (Id.)
The lower court sustained an objection to the question whether Mr. Lindsey
actually knew if the job orders he reviewed were being pulled by interviewers
on a random basis (Tr. 24-59) . Counsel for plaintiffs then asked the following
question:
Q. Did you ever take any steps to find out whether
the interviewers in fact had pulled out the best possible
job orders in terms of minority referrals?
The MSES defendants objected on the basis that this constituted "harassment of
the witness." The lower court sustained the objection. (Tr. 24-60).
Subsequently, Mr. Lindsey admitted, as to the format of the self-ap
praisal reports: "It just sort of lends itself to showing a satisfactory
15/
situation, just on the face of it.” (Tr. 24-78) .
c) Selecting Applicants for Referral on the Basis of Unvalidated
Educational Requirements ___________ _______________________
Mr. Lindsey testified that it was the policy of his office to accept
whatever an employer sets down as its educational requirement, and to refer
only applicants meeting the requirement, unless there were too few applicants
15/ Compare, for example, State defendants' exhibit 53, p. 2, the self-
appraisal form dated August 30, 1972, which says "All orders for the six-month
evaluation period were checked and no discriminatory specifications found as
to age and sex", with plaintiffs’ exhibit 57, p. 3.
-15-
with that level of education. If that occurred, his office would then try to
obtain some leeway from the employer with respect to the requirement. He could
not recall any specific instance in which his office had in fact been short of
people with the requisite level of education. (Tr. 976-78) . Lane Hart, the
Director of MSES from November 1957 through August 1, 1975 (plaintiffs'
exhibit 19-9, Dep.Tr. 66; plaintiffs’ exhibit 150, Dep.Tr. 5), and Charles
Ballard, chief of the Programs and Methods Branch of MSES from 1956 through
1976 and thereafter Assistant Director of MSES, (Tr. 2520-21) , testified that
efforts to negotiate an employer's educational requirement downward, or to seek
waivers of the requirement on behalf of particular applicants, were not made
when the local office had enough applicants with the requisite level of educa
tion available for referral. (Plaintiffs’ exhibit 150, Dep.Tr. 24-25). MSES
does not require the local office manager to obtain any facts from the employer
indicating that the educational requirement can be validated. (Id., Dep.Tr. 29).
Plaintiffs' exhibits 5 and 56 show a number of job orders with educa
tional requirements serviced by the Cleveland branch office in 1970 and in 1976.
Many of them are for ordinary clerical positions, or positions as waitress,
cook, sales clerk, and so forth. Mr. Lindsey testified that his office had
accepted basically the same types of educational requirements, and has serviced
them, throughout the period of time he has been Manager of the local office.
(Tr. 974-76).
Census statistics show that educational requirements in Bolivar County
and in the State of Mississippi have a disproportionately adverse effect on
blacks. (Stipulation ?*[ 68, 69; stipulation exhibits 47, 48). Dr. Linda Malone,
a statistician called by the State defendants, testified that black applicants
in the Bolivar County branch office had a lower level of education than white
applicants, that female applicants had a lower level of education than male
-16-
applicants, and that the differences were statistically significant. (Tr. 1429-
36; State defendants' exhibit 71). Plaintiffs' exhibit 8 shows that the propor
tions of blacks among the applicants referred declines sharply as the level of
the educational requirement or preference increases.
16/
There is no evidence of any business necessity for this practice.
Even in the absence of an educational requirement set by an employer,
MSES interviewers may decide to select one applicant for referral, instead of
another, based in part upon the applicant's level of education. (Testimony of
Mr. Lindsey, Tr. 1022-23).
The district court found that acceptance by the MSES defendants of
Travenol Laboratories' tenth-grade requirement discriminated against black appli
cants, but that Travenol's use of MSES had ended in November 1971, prior to the
judicial Complaint, and that plaintiffs and their class were accordingly not
17/
entitled to any relief on this issue. (R. 2168-69, App. 130-31). The court
did not discuss the large number of similar job orders accepted and serviced by
the MSES defendants after the filing of the judicial Complaint, but observed
that regulations prohibited the local office from accepting employer requirements
which result in the exclusion of applicants of a particular race. (R. 2140,
App. 106) .
16/ Mr. Lindsey testified that employers would be generally receptive to
some extent, if he called them and said that he did not have enough applicants
meeting their educational requirements and asked permission to refer persons
with a lesser level of education. He did not know whether employers would be
any less receptive if he informed them that MSES would like to refer applicants
whom MSES thought capable of doing the job, without regard to educational require
ments. (Tr. 978-79). y
17/ Plaintiffs had filed their EEOC charges in March 1970, and the EEOC
had also investigated the matter in 1970. (Plaintiffs' exhibits 96, 97, 101, 103)
-17-
d) Selecting Applicants for Referral on the Basis of Unvalidated
Experience Requirements______________________________________
The evidence at trial established that MSES policies with respect to the
servicing of experience requirements set by employers were identical to its
policies with respect to the servicing of educational requirements set by em
ployers. (Testimony of Mr. Lindsey, Tr. 979-80; testimony of Mr. Ballard,
plaintiffs’ exhibit 150, Dep. Tr. 59-60; Stipulation 5 70); plaintiffs' exhibit
5) .
The evidence at trial showed that there are substantial racial and sex
ual differences in the types of previous employment experience possessed by
applicants. Mr. Lindsey testified that, at least through the mid-1960's, the
traditionally-black jobs in Bolivar County for males were service station
attendant, cook, and general labor. The traditionally-black jobs for females
were maids, cooks, restaurant cooks, char workers in motels, and industrial
maids. The traditionally-white jobs were everything else. (Tr. 822-23). He
further testified that, for the entire period of time covered by State defend
ants' exhibits 49— 55-- the self-appraisal forms from 1972 through 1978-- blacks
in Bolivar County had had less experience and training than whites. (Tr. 2465-
66). Mr. Jones, the Superintendent of the part of the local school district
in Mound Bayou, testified that the background of the black population in Mound
Bayou had essentially been farm labor, that the mechanization of farms had
thrown them out of work, that they did not have the experience or skills for
other work, and that, while some progress had been made, the continuing high
rate of black unemployment indicated that the problem was still present. (Tr.
1894-98, 1908-09, 1918-19). Mr. Beverly testified that he had become familiar
with the fact that a previous-experience requirement for a relatively high-
paying job in the Mississippi Delta could have a disproportionately adverse
-18-
effect on blacks, and that for this reason he had included such situations in
the civil rights training manual for local MSES staff. (Tr. 2281; State de
fendants' exhibit 43 at pp. 44-46). Stipulation 72 and 73, and Stipulation
exhibit 50, show 1970 Census statistics indicating substantial differences be
tween the occupations held by blacks and those held by whites, and between
those held by women and those held by men.
The defendants did not introduce any evidence of business necessity for
this practice. Mr. Lindsey testified that he had no basis for knowing whether
employers would be unreceptive if his office informed them that it would refer
applicants MSES thought could do the job, without regard to prior experience.
(Tr. 980) .
Even where employers have not specified an experience requirement, MSES
relies heavily on the previous employment experience of applicants in deciding
which applicants to refer to the employer. (Testimony of Mr. Lindsey, Tr. 1022;
testimony of George Nash, Tr. 2077) .
The district court did not address this issue in its decision, except by
noting that employment service offices were prohibited from processing facially
neutral orders with racially exclusionary effects. (R. 2140, App. 106).
e) Comparison of Classifications and Referrals in 1970
Under MSES policy, an applicant with an occupational code identical or
similar to the occupational code of a job order should be referred on the job
order before other applicants are referred. (Stipulation, 15 38, 57-59). Mr.
Lindsey testified that there was quite a bit of leeway within each code "family"
or group of jobs with the same initial digit; if a job order had the initial
digit 1', indicating a professional, technical, or managerial job, MSES would
probably refer only persons whose occupational codes also began with "1". Ex
ceptions were sometimes made, but this was the general rule. (Tr. 808-09; sti
-19-
pulation exhibit 36, vol. II, p. 1). The MSES defendants have sought to estab
lish that the classificaticrB of applicants into various occupational codes
reflect the qualifications, abilities, and interests of applicants, (Stipula
tion, 39; testimony of Mr. Lindsey, Tr. 2166-67; decision, R. 2135-39, App.
102-05). Putting aside for the moment plaintiffs’ contention that there has
been discrimination in the discharge of this function, a comparison of the rates
at which blacks have been classified into particular code "families" with the
rates at which blacks have been referred on job orders for the same "families"
should show whether MSES has made racial distinctions in the referrals of
applicants it had previously decided to be similarly qualified.
Plaintiffs’ exhibit 80 shows the classification of applicants in 1970,
and plaintiffs' exhibit 80 shows the classification of applicants in 1970, and
plaintiffs' exhibits 61 and 62 show their referrals in 1970, by occupational
codes. Table M- shows that there are substantial differences between the
classification rates and the referral rates of black applicants to various
code "families". An asterisk indicates that the difference is statistically
significant, as indicated in table 5 on page 22.
-20-
Table 4. Rates of Classification and of Referral, by Race and Sex,
in 1970 __________________________________________
Mean Black Males, as Per- Black Females, as Per-
Hourly centage of All Males centage of All Females
Code Description Wage Coded Referred Coded Referred
0-9 All Jobs — 57.2% 38.0%* 61.0% 48.7%*
0,1 Professional,
Technical &
Mgr. Jobs $1.96 34.1% 7.7%* 38.5% 0%*
2 Clerical and
Sales Jobs $1.95 37.2% 19.8%* 32.5% 18.5%*
3 Service Jobs $0.93 82.9% 77.3% 83.7% 87.0%
1+ Farmwork Jobs $1.37 79.5% 58.6%* 94.1% 100 %
5 Processing
Jobs $1.56 60.0% 42.9% 37.5% —
6 Machine
Trades Jobs $1.72 52.5% 12.5%* 25.0% 100 %
7 Bench Work
Jobs $1.59 38.7% 28.6% 35.1% 66.7%*
8 Structural
Work Jobs $1.77 62.7% 55.1% 33.3% —
9 Miscellaneous
Jobs $1.84 58.6% 65.9% .65.3% 23.6%*
f) Sharp Increases
Filing of Suit
in the Rates of Black Referrals After the
Plaintiffs introduced manual analyses of referrals to various types of
occupations, broken down by race and sex. (Plaintiffs1 exhibits 61, 62, 65,
66, 69, 70, 73, and 74). The proportions of all referrals given to blacks in
creased after service of the EEOC charges in mid-1970, and increased substan
tially again in the year suit was filed; the proportions of referrals to other
traditionally-white jobs went up markedly after suit. Table 6 on p. 23 shows
the details.
-21-
-22
-
Table 5. Standard Deviation Analysis of Rates of Classification
and of Referral in 1970 _______
Males All Codes
Prof., Tech.
& Mgr. Codes
Clerical &
Sales Codes
Farmwork
Codes
Mach. Trades
Codes
Availability: Blacks as Pro
portion of Applicants With
This Code .572 .341 .372 .795 .525
Sample Size: No. of Referrals
to Jobs With This Code 505 13 253 29 8
Expected No. of Black Referrals 288.9 4.4 94.1 23.1 4.2
Observed No. of Black Referrals 192 1 50 17 1
-- Difference -96.9 -3.4 -44.1 -6.1 -3.2
Standard Deviation 11.1 1.7 7.7 2.2 1.4
No. of Std. Dev1ns Between Ex
pected and Observed Values -8.7 -2.0 -5.7 -2.8 -2.3
Females All Codes
Prof., Tech.
& Mgr. Codes
Clerical &
Sales Codes
Bench Work Miscellaneous
Codes Codes
Availability: Blacks as Pro
portion of Applicants With
This Code .61 .385 -325 .351 .653
Sample Size: No. of Referrals
to Jobs With This Code 759 9 124 48 297
Expected No. of Black Referrals M-63.0 3.5 40.3 16.8 193.9
Observed No. of Black Referrals 370 0 23 32 70
--Difference -93.0 -3.5 -17.3 +15.2 -123.9
Standard Deviation 13.4 1.5 5.2 3.3 8.2
No. of Std. Dev’ns Between Ex
pected and Observed Values -6.9 -2.3 -3.3 +4.6 -15.1
Table 6. Proportions of Referrals Given to Blacks, 1970-73
Type of Job
% Black
in 1970
% Black
in 1971
% Black
in 1972
% Black
in 1973
All Jobs
- Males 38.0% 59.2% 67.3% 78.7%
- Females 48.7% 52.7% 68.9% 64.2%
Clerical and
- Males
Sales
19.8% 25.5% 34.3% 52.7%
- Females 18.5% 10.6% 28.8% 44.7%
Professional,
- Males
Technical, Managerial
7.7% 32.3% 28.6% 58.4%
- Females 0% 36.8% 27.8% 67.6%
Plaintiffs’ exhibit 76 shows that the qualifications of many of the whites re
ferred to Professional, Technical and Managerial jobs in 1970 were minimal.
Until suit was filed, black male applicants received a disproportionately small
number of referrals to structural work occupations other than construction
labor (codes 80-85 and 87-89) , and a disproportionately large number of re
ferrals to the lower-paid construction labor occupations (code 86):
Table 7. Proportions of Male Referrals to Structural Work Jobs
Other than Construction Labor, and to Construction
Labor Jobs, Given to Blacks, 1970-1973_______________
Year
Range of Pay Rates_____
Other Than
Construction Construction
Labor Labor __
Male Referrals
To Structural
Jobs Other Than
Construction Labor
-- % Black________
Male Referrals
To Construction
Labor Jobs
--% Black_____
1970 $1,94-$2.50 $1.60
1971 $1.71-$2.35 $1.69
1972 $1.87-$3.28 $1.82
1973 $1.68-$2.43 $1.77
32.6%
50.8%
75.4%
70.4%
87.5%
77.8%
78.9%
76.3%
g) Sharp Increases in the Rates of Black Referrals to Material
Handler Jobs, After the Cessation of Business with Travenol
Laboratories Made it a Lower-Paid Job Area_________________
The Material Handler job at Travenol was much more highly-paid than
other Material Handler jobs in the area which, from an examination of job orders
18/
seem to have involved manual labor loading and unloading trucks. In
18/ See, e,g., plaintiffs’ exhibit 1, vol. II, pp. 260, 264, 266, 268
and 272.
-23-
November 1971, Baxter Laboratories stopped, using MSES as its sole source of
referrals, and the average hourly pay rate on Material Handler job orders
declined accordingly. Plaintiffs' exhibits 61, 62, 65, 66, 69, 70, 73 and 74-
show that, as the average pay rate of the Material Handler job orders declined,
MSES increased substantially the proportions of blacks it referred on such job
orders:
Table 8. Proportions of Referrals to Material Handler Jobs
Given to Blacks, 1 9 7 0 - 1 9 7 3 ____________________
Year
Overall Average
Hourly Pay Rate
Male Referrals
To Material
Handler Jobs
-- % Black
Female Referrals
To Material
Handler Jobs
-- % Black
1970 $1.89 60.4% 23.6%
1971 $2.06 55.3% 56.6%
1972 $1.79 84.5% 100% (only 1 woman)
1973 $1.57 84.1% 86.7%
The district court did not address this evidence in its decision.
h) Racial and Sexual Differences in the Rates of Pay for Jobs
to Which Referrals Were Given, 1970-1978__________________
The U.S. Department of Labor has established a method of analyzing the
activities of local employment service offices from the standpoint of civil
rights compliance. Called "PEER” , it compares the average wage rates of the
jobs to which applicants of each race and sex were referred, and compares the
services provided to them with their representation in the population. Mr.
Beverly testified that it was a very useful approach which might require him to
take much harder looks at some things now than he would have earlier. (State
defendants’ exhibit 80 at pp. 4-5; Tr. 2272-74, 2294— 95, 2312).
From 1970 through July 1978, there were strong racial and sexual dis
parities in the pay rates of jobs to which referrals were given:
-24-
Table 9. Average Hourly Pay Rates Per Referral Given, 1970-1978
White Male Black Male White Female Black Female
Time Period Referrals Referrals Referrals Referrals
1970 $2.05 $1.67 ’$1780 $1.18
1971 1.98 1.78 1.96 1.70
1972 1.87 1.80 1.65 1.10
1973 1.96 1.73 1.70 1.42
1/74 to 6/74 2.26 2.13 1.86 1.58
7/74 to 6/75 2.36 2.19 2.11 2.09
7/75 to 6/76 2.64 2.41 2.32 2.27
10/76 to 9/77 2.80 2.57 2.56 2.40
10/77 to 7/78 3.05 2.77 2.78 2 .62
(Plaintiffs’ <exhibits 117, 119 at p. 7, 123 at p. 1) . Plaintiffs’ exhibit
at p. 1 shows the levels of statistical significance for various comparisons
for the period from 1974 to 1978; most of the differences are significant at
19/
the .0001 level.
Plaintiffs’ exhibit 19(b) is a much more extensive analysis of referrals
by each MSES office in the State for a period of approximately a year ending in
20/
March 1976. Although Dr. Malone had found statistically significant differ
ences between the levels of education of blacks and whites and of males and
females, pp. 369-76 of this exhibit show that any large overall racial or
sexual differences remain even when comparing referrals of persons with the
same levels of education:
19/ Because the statistics for the period 1970-1973 were calculated by
hand rather than by computer, no calculations of significance were done for
this period.
20/ Plaintiffs’ exhibit 19(b) at p. 369 shows that the tape reflects
data for 5,785 separate applicants at the Bolivar County branch office, and
plaintiffs’ exhibit 153 shows that there were 5,566 new or renewed applica
tions filed in FY 1975. The MSES defendants supplied this tape to plaintiffs,
bud did not inform plaintiffs of the data it covered. (Tr. 265-66) . Mr.
Frodyma testified that data on the tape ended in March 1976. (Tr. 263-66).
-25-
Table 10- Average Hourly Pay Rates Broken Down by Applicants'
Level of Education, per Referral Given, 1975-76
Educational
Level of
Applicants
All Applicants
1-6 Years
7-9 Years
10-11 Years
12 Years
13-15 Years
16 or More Yea
White Males
$2.61
2.36
2.30
2.61
2.73
2.70
3 3.02
Black Males
$2.39
2.31
2.37
2.38
2.37
2.53
2.92
White Females
$2.26
2.10
2.12
2.15
2.27
2.31
2.46
Black Females
$2.22
2.15
2.11
2.20
2.21
2.30
2.44
MSES is required to give veterans preference in referrals, 20 C.F.R
§ 653.221(a) (7) (1980), a provision primarily of benefit to men but not chal
lenged in this case. Plaintiffs’ exhibit 19(b) at pp. 377-78 shows that white
men who were not veterans fared substantially better than black men who were
veterans:
Table 11. Average Hourly Pay Rates, Broken Down By Status as
Veteran or Nonveteran, per Male Referral Given, 1975-76
Status White Males Black Males
Hourly
Difference
Annual
Difference
(2080 Hours)
All Applicants $2.61
Veterans 2.72
Non-veterans 2,57
$2.39 22d $457.60
2.42 30d $624.00
2.39 18d $374.40
Mr. Nash was asked whether he could explain these racial disparities
between black males and white males. He stated that he could not. (Tr. 2086-
87). The district court did not address this evidence in its findings, but its
conclusions stated that "the human elements involved in affording a job appli
cant an opportunity of gainful employment ... cannot be inserted into a compu
ter" to show a true picture, and stated that plaintiffs’ charts and schedules
did not reflect "all of the relevant and available information". (R. 2167, App.
130) .
-26-
i) Racial and Sexual Differences in Rates of Referrals
Plaintiffs' exhibit 123 shows that, for the period from 1974 through
1978, whites have received a substantially higher rate of referrals than blacks,
and that the disparity is generally statistically significant.
In addition to comparing rates of referral for applicants generally,
plaintiffs also compared rates of referrals for applicants in "available appli
cant pools", i,e., applicants with the same occupational code as a job order or
the same occupational code as someone actually referred on the job order. These
are the same applicant pools used by the State defendants' expert. (Testimony
of Michael Frodyma, Tr. 243-44). Thus, use of these "available applicant pools"
compares applicants whom MSES has, in its assignment of occupational codes, con
sidered comparably qualified. Plaintiffs' exhibit 123 shows the same pattern of
statistically significant racial disparities in rates of referral for persons in
"available applicant pools" as was shown for the general population.
j) Referrals Out-of-Code
When MSES referred an application to a job category with an occupa
tional code outside the same initial-digit code "family" as the applicant's
occupational code, the referral was to a job for which MSES had not considered
the applicant best suited. Plaintiffs' exhibit 107 shows that 68 applicants
were referred out-of-code to Clerical and Sales jobs in 1970, and that 85.3% of
them were white. Mr. Lindsey testified that he did not know why, when blacks
constituted more than 60% of the applicants in the office, 85.3% of the re
ferrals out-of-code to Clerical and Sales jobs had been received by whites.
(Tr. 1016-17).
Plaintiffs' exhibit 108 shows that 68 applicants were referred out-of-
code to Service jobs in 1970, and that 64.7% of them were black. Fifteen white
women, and 18 black women, were referred to Service jobs despite having been
-27-
classified in Clerical and Sales codes. Plaintiffs' exhibit 109 focuses on the
women referred out-of-code to Service jobs, and shows that only black women
were referred out-of-code to the traditionally-black Domestic, Cook or Kitchen
Helper jobs. Thirteen of the 15 white women--86.7%---with Clerical and Sales
codes were referred to Waitress positions. Of the 18 black women with Clerical
and Sales codes, however, 14--77.8% of the total-- were referred to Domestic
or Cook positions.
Plaintiffs' exhibit 75 shows that there were 113 parsons referred out-of-
code to Domestic positions in 1971, and that 110 of them 97.3% of the total--
were black women. Two of them had been given Clerical and Sales codes.
The district court did not address this evidence in its decision.
k) Other Classwide Evidence of Discrimination in Referrals
"Job development" is "the process of soliciting an employer's order for
a specific applicant for whom the local office has no suitable opening currently
on file." A local Employment Service office is supposed to engage in job
development activities for applicants with unusual skills or training and for
applicants who are hard to place, because few orders are received for the kinds
of work they can do. (Federal defendants' exhibit 51, §§ 1685, 1687). Most of
State defendants’ exhibits 44 through 52 contain racial breakdowns df job
development activity; they show that the proportion of placements resulting
from job development activities undertaken on behalf of black applicants is far
lower than the proportion of applicants who are black. (Plaintiffs' exhibit
170) . Mr. Beverly testified that he would not have looked at these figures as
indicating any cause for concern as late as 1977, but his office had become more
sophisticated with the introduction of the "benchmark" analysis in the USES PEER
program, and he would now look at it "a whole lot different". (Tr. 2294-95) .
Mr. Lindsey testified on direct examination that job developments were
-28-
used for both skilled and unskilled jobs, and that such efforts should be under
taken for applicants "who are hard to place because few orders are received for
the kinds of work they can do", as well as for highly skilled applicants. (Tr.
2445). When confronted with the racial disparities shown on his own self
appraisal forms and reflected in plaintiffs' exhibit 170, he changed his testi
mony and explained them by saying that blacks had less experience and less
training than whites, and job developments were undertaken only for persons with
specific qualifications. He admitted that the decision whether to undertake job
development efforts for a particular applicant was subjective, and that he had
not always made specific inquiries of interviewers to find out whether they
21/
had been discriminating in job developments. (Tr. 2465-67, 2*478) .
In theory, Federal regulations prohibit Employment Service offices from
processing job orders from local employers known to be discriminatory. (Federal
defendants' exhibit 51, § 1294; State defendants’ exhibit 8, § 1294; decision,
R. 2140, App. 106). The district court found that these regulations were "legal
and effective." (R. 2132, App. 98-99). Nevertheless, MSES's own investigation
of the EEOC charges filed by the plaintiffs herein show that no black applicants
referred to Baxter (Travenol Laboratories) would be hired unless they knew, and
were recommended by, three particular black individuals:
This is common knowledge in the community and anyone
with whom you talk is knowledgeable about the procedures
used to get employment at Baxter.
21/ Freddie Funchess, a black applicant, had taken accounting courses
in high school and had finished two years of college in Business Administration.
He had had jobs and training in a wide variety of occupational areas. (Tr.
486-500). Plaintiffs' exhibit 40, p. 1, shows that he visited the Bolivar
County branch office on February 26, 1974, and was not given a referral then or
later. Plaintiffs’ exhibit 4, vol. I, pp. 402-03, shows that a job development
was successfully undertaken on behalf of a white applicant two days later, for
a job as Manager Trainee for the Sonic Drive-In. The job required a high school
degree, and did not require any previous experience. Mr. Lindsey did not know
why a job development contact had not been made for Mr. Funchess. (Tr. 1033-37)
-29-
... Applicants who exceed the norms and are other
wise qualified for work are denied employment at Baxter
simply because they are not known by the three men
mentioned above.
(Plaintiffs’ exhibit 116, p. 2; Tr. 2285-87). Despite this knowledge by MSES
that Baxter imposed a condition on black applicants which it did not impose on
white applicants, MSES continued to service job orders from Baxter.
In its most recent investigation of record into the actions of the
Bolivar County branch office, the Secretary's Office found on June 29, 1968,
that the Cleveland branch office and eight other MSES offices had discriminated
against blacks in making referrals to positions which had traditionally been
closed to blacks:
Each of these studies revealed patterns of white
applicants being referred to public contact posi
tions, in many cases with no related codes or
experiences, over better qualified Negroes who
were available for referral during the time that
the orders were being serviced.
(Plaintiffs’ exhibit llM- at p. 7) . The Department of Labor also found that the
Bolivar County branch office of MSES had discriminated against blacks in refer
ring applicants to summer employment positions at Baxter Laboratories. (Id.
at p. 8). In his response, the defendant Aldridge did not dispute the general
finding of discrimination in referrals but stated that the situation was
improving. (Plaintiffs' exhibit 158 at p. 3).
The district court did not address any of this evidence in its decision.
1).Dr. Malone’s Analysis
Dr. Linda Malone, the State defendants’ statistician, testified that her
analysis of referrals by the Bolivar County branch office for the period from
1974 through 1978 showed no discrimination. Her analysis was on a job-order-
by-job-order basis; for each, she did separate analyses for each race, each sex,
and each race/sex group. In each analysis, she examined each job order to
-30-
determine whether she would place it in Group 1, meaning that there is a low
probability of doing better for the group in question, in Group 2, meaning that
there is some chance of discrimination against the group in question but that it
is unclear, or in Group 3, meaning that there is a high probability that more
referrals should have been given to the group in question. In performing her
analysis for each job order, she used "available applicant pools”, defined as
described at 27, supra. For each of the groups she studied, and for each time
period, she found that her analysis placed most jobs in Group 1 and only a very
small number of jobs in Group 3. She accordingly concluded that there was no
discrimination. (Testimony of Dr. Malone, Tr. 1390-99, 14-36-39; State defend-
22/
ants’ exhibits 63-68) .
An unusual feature of Dr. Malone’s approach is that some job orders wind
up in Group 1 for all of the groups being examined. (Tr. 14-96) . However, if
all of the job orders falling within Groups 2 or 3-- i.e., those with a
questionable probability or high probability that more of the group in question
should have been referred-- it is apparent that even Dr. Malone's analyses show
strong racial and sexual differences. For example, in the period of time from
October 1977 through July 1978 for long-term jobs, there was a possible ques
tion of discrimination against white males with respect to only 6.1% of job
orders; for black males, there was such a question with respect to 10.4-% of
22/ Dr. Malone’s analysis resulted in comparing a group plaintiffs con
tended to be discriminated against with another group containing persons who
were also contended to be victims of discrimination. Thus, in assessing whether
there was discrimination against black males, she did not compare their refer
rals with those given to white males; she compared black male referrals with
the combined referrals of a group consisting of black women, white women, and
white males. She never compared the actions of MSES as between black females
and either white males or white females; she compared the referrals given to
black females with the combined referrals given to a group consisting of black
males, white males, and white females. (Tr. 1393-94-, 14-88-90). Of necessity,
such an approach would tend to conceal whatever racial or sexual disparities
in referrals may exist.
-31-
job orders; for black females, 27.8%; for all blacks, 24.8%; and for all women,
23.0%. Table 12 on the next page provides the details.
The essence of Dr. Malone’s analysis is that she looked at each job
order separately. She admitted that her analysis would not detect discrimina
tion if an "available applicant pool" was 50% black, and if MSES processed a
hundred job orders for that pool, each time referring one white male for a
total of 100 white males and no others referred. (Tr. 1524-25). If only one
applicant were referred on a job order, that order would of necessity have been
placed in Group 1 with respect to each race, sex, and race/sex group she
studied. (Id.) In point of fact, MSES very often refers only one applicant
on a job order, or closes a job order without any referrals:
Table 13. No. of Job Orders Closed Without Referrals, or
Closed With One Referral
Year
No. of
Job Orders
No. Closed
Without Referral
No. Closed With
One Referral
Percent
Of Total
1970 273 18 90 39.6%
1971 494 36 191 46.0%
1972 797 27 340 46.0%
(Calculation of counsel from plaintiffs’ exhibits 1, 2, and 3). Thus, Dr.
Malone’s approach could not possibly find any problem in close to half of the
23/
job orders serviced by MSES. Dr. Mann, plaintiffs' expert, testified that
Dr. Malone's approach was not appropriate. (Tr. 154-6-48, 1553-54).
Finally, Dr. Malone's analysis assumed that there was no discrimination
in classifying applicants into particular occupational codes. She admitted
23/ Dr. Mann testified, from a document prepared by Dr. Malone and
earlier tendered to plaintiffs, that 30% to 40% of the job orders she used
in her analysis had only one referral. The district court sustained an
objection to the document’s admission, on the ground that going into the
matter would take time (Tr. 1556-59), but no motion was made to strike
this testimony.
-32-
-33-
Table 12. Percent of Job Orders Falling Within Dr. Malone's Group 2 or Group 3
(Questionable Probability or High Probability That More Referrals to
the Job Order in Question Should Have Been Given)___ ______________
Time Period Duration of Job
Total No.
of Job
Orders
White
Males
(SDX-65)
Black
Males
(SDX-66)
White
Females
(SDX-67)
Black
Females
(SDX-68)
All Blacks
(SDX-64)
All Women
(SDX-63)
1/74-6/74 Short-Term 521 8.8% 12.9% 10.0% 15.5% 24.0% 11.5%
1/74-6/74 Long-Term 54 13.0% 22.2% 9.3% 18.5% 38.9% 16.7%
7/74-6/75 Short-Term 688 5.1% 12.8% 7.0% 16.4% 25.1% 11.0%
7/74-6/75 Long-Term 88 12.5% 22.7% 3.4% 23.9% 33.0% 25.0%
7/75-6/76 Short-Term 172 12.2% 23.8% 4.1% 15.7% 26.2% 16.9%
7/75-6/76 Long-Term 557 5.9% 17.1% 13.8% 14.2% 28.2% 9.9%
10/76-9/77 Short-Term 143 12.6% 15.4% 4.9% 4.9% 30.1% 23.8%
10/76-9/77 Long-Term 590 6.1% 14.7% 9.8% 9.8% 31.4% 11.7%
10/77-7/78 Short-Term 130 4.6% 6.9% 3.8% 35.4% 19.2% 33.8%
10/77-7/78 Long-Term 460 6.1% 10.4% 12.2% 27.8% 24.8% 23.0%
that she had done nothing to check the accuracy of her assumption. (Tr. 14-83
84) .
The district court did not mention her testimony or exhibits in its
decision.
m) The Defense that Job Openings Were Scarce
The district court found that job openings on file in the Cleveland
office were scarce, and that MSES employees did what they could to try to help
applicants obtain whatever suitable work might be available. An examination
of the job orders in evidence as plaintiffs' exhibits 1-3 show that a substan
tial number are closed without referrals, are closed with only one referral,
are closed with fewer referrals than there are openings, or are closed with
the same number of referrals as there are openings. For the years 1970 through
1972, plaintiffs' exhibits 1-3 show:
Table 14. Numbers of Referrals Made on Job Orders, 1970-1972
No. of No. of Job Orders in Which MSES
Job Did Not Give the Employer a Percent of
Year Orders Choice of Applicants to Hire Total
1970 273 118 43.2%
1971 494 268 54.3%
1972 797 415 52.1%
(Calculation of counsel). See also Table 13, supra. The closing of a job order
without a referral obviously harms both the employer who has been unable to
fill its job through MSES and the unreferred applicants at MSES. The same is
true when MSES refers fewer persons than there are openings (7 job orders in
1970, 25 in 1971, and 4 in 1972). When MSES refers only one person, or refers
the same number of persons as there are openings, the employer is deprived of
a choice of applicants which the employer is intended to have (Stipulation
5 47), and unreferred applicants are deprived of an opportunity to have the
employer make its own judgment as to their ability to perform its jobs despite
-34-
any lack of formal education or experience, as well as being depri\ed of a
24/
broader sense of employment opportunities. The result of the figures shown
in Tables 13 and 14- is shown in Table 1 at p. 8, supra: the decision by MSES
whether or not to make a referral is often tantamount to the decision whether or
not the applicant will be hired.
5. Evidence of Discrimination in the Classification of Applicants
a) The Relationship Between Classification and Referral
Part, but not all, of the explanation for plaintiffs' evidence of discri
mination in referrals can be explained by the different occupational codes in
which MSES has classified white applicants and black applicants, male applicants
and female applicants. Although the district court found that the assignment of
an applicant to one occupational code would not prevent that applicant's re-
25/
ferral to a job in another code, if a suitable job became available, (R. 2118,
App. 85) , the evidence is uncontradicted that MSES policy is to give first pri
ority of referral to those applicants meeting employers' requirements who have
the same occupational code as that of the job on which referrals are being made,
then to give priority to applicants with codes having the same initial digit as
24/ Obtaining a broader sense of employment opportunities may be more
important for blacks, as a group, than for whites as a group, because the tradi
tional exclusion of blacks from many types of jobs has left them with fewer
avenues of informal information about various types of job opportunities. The
fact that job opportunities in Bolivar County tend to occur in parts of the
county other than that in which many blacks live underscores this conclusion.
See text, supra at 6; plaintiffs' exhibit 114- at p. 3.
25/ The basis of this conclusion was incorrect. Adline Ward Brown was
not referred to a job at Baxter Laboratories a week after the assignment of a
"Domestic” code to her on June 22, 1970, but a year after that code had been
assigned to her. Plaintiffs' exhibit 16 shows a July 1 referral to Baxter
after an entry dated June 29, 1971, so that the July 1 referral was clearly
in 1971, not in 1970. Plaintiffs' exhibit 2, volume III, p. 11(d), item 19,
shows the referral of Ms. Brown to Baxter on July 1, 1971. Mr. Lindsey
agreed that Ms. Brown was referred to Baxter a year after she had been
classified in the Domestic code, not a week later. (Tr. 84-1-43).
-35-
that of the job in question, and only thereafter to give referrals to appli
cants who have occupational codes with different initial digits than that of
the job order. MSES officials agreed that the assignment of an occupational
code to an applicant tends to restrict that applicants’ chances of referral to
jobs with a similar code. (Federal defendants' exhibit 51, § 14-70; State de
fendants’ exhibit 10, § 14-70; Stipulation, 5 58; testimony of Mr. Lindsey,
Tr. 807-09, 872-73, 2171-72; testimony of George Nash, Tr. 2051, 2096).
b) Th'e Process by Which Occupational Codes Are Assigned
While a number of factors are supposed to be taken into account in
assigning applicants to various occupational codes, (Federal defendants’ exhibit
51, §§ 1190-1225; State defendants’ exhibit 6, §§ 1190-1214-; decision, R. 2136-
39, App. 102-05), the actual practices of MSES are much more simple. The appli
cant’s previous employment experience is the factor given primary considera
tion in assigning an occupational code. Training is the next most important
characteristic, and personal characteristics are assertedly given little weight.
(Testimony of Mr. Lindsey, Tr. 821, 894, 2167-72). Mr. Beverly testified that
excessive reliance may have been placed on prior experience in some cases, to
the exclusion of other qualifications. (Tr. 2303-04;.State defendants’ ex-
26/
hibit 80) .
26/ Adline Brown, a black high school graduate who had taken a typing
course in high school and had had previous experience as a babysitter--there
was a dispute whether she had also had previous experience doing housework--
applied at MSES on June 22, 1970, and indicated that she preferred factory work.
She was classified as a Domestic and was given no referrals for a year. (Testi
mony of Ms. Brown, Tr. 521-26; plaintiffs’ exhibit 16; cf. testimony of Mr.
Lindsey, Tr. 838-43).
Leanner Terrell, a black applicant with a fourth-grade education, had
experience as a Cotton Sampler at a cotton gin. The work is seasonal, and lasts
for only two or three months a year. She applied to MSES in 1972, 1973, 1974
and 1975, and informed MSES that she wanted another type of work, such as factory
work. She was classified as a Cotton Sampler on each of those applications and
was not given any referrals. (Testimony of Ms. Terrell, Tr. 456-60, 466-73;
plaintiffs' exhibit 28) .
(footnote continued)
-36-
The district court found that Federal regulations require that personal
characteristics, such as vocational interests and preferences, must be con
sidered in assigning codes to applicants. (R. 2137, App. 103). Mr. Lindsey
testified that such factors were given only limited weight in making a classifi
cation decision. (Tr. 2168-69). On Ms. Terrell's application forms filled out
on February 24-, 1972, and June 16, 1972, the space for the indication of the
applicant’s interests is in the part of the form to be filled out by the inter
viewer, and was left blank. (Plaintiffs’ exhibit 28). Mr. Lindsey admitted
that he had never instructed his staff to ensure that they obtained this
information from all applicants, and he could not say that his staff asked
every applicant for this information if the applicant did not volunteer it.
(Tr. 883-85) . Ms. Terrell denied having told MSES staff that she desired
Domestic work when she applied on May 12, 1957, but the MSES interviewer fill
ing out her form wrote that she preferred work in a private home. She was
given several referrals to Domestic jobs, but did not accept them. (Tr. 4-63-66,
27/
M-74--75; plaintiffs' exhibit 28) .
(Footnote continued from previous page)
Mr. Lxndsey agreed that her applications had been filed after layoffs from
her seasonal job, and that there was then no practical opportunity of referral
to the Cotton Sampler job category in which she was coded. He did not know of
any nonracial explanation for repeatedly assigning her a code based on experience
in which there was no practical opportunity of referral, agreed that the assign-
ment of that code would have restricted her chances of referral to another type
of job, and agreed that there had never been any substantial number of whites
classified in the Cotton Sampler code. (Tr. 864-76) .
27/ An applicant's expression of interest does not necessarily have
any effect on the assignment of an occupational classification. Plaintiffs'
exhibit 16 shows a June 22, 1970 application for Adline Ward Brown, which
notes her preference for factory work but assigns her to the Domestic code;
plaintiffs’ exhibit 4-0 contains a November 14-, 1978 application for Freddie
Funchess, noting his preference for Security or Mechanic work, but assigning
him to the Material Handler code; although Ollie White did not recall the
application (Tr. 332-33, 34-0-4-1), plaintiffs’ exhibit 4-2 contains an applica
tion filled out on December 16, 1970, noting Mr. White’s preference for
Baxter Laboratories but classifying him as a Toll Collector II. Plaintiffs'
exhibit 89 lists black women, classified as Maids (Domestics), whose appli
cation forms showed a preference for other work.
-37-
The district court found that Federal regulations require MSES inter
viewers to explain the operation of the local office, discuss possible codes,
and inform applicants of the codes assigned, so that applicants will understand
the method of selection. (R. 2137-39, App. 103-05; Federal defendants' ex
hibit 51, §§ 1098-1100; testimony of Mr. Lindsey, Tr. 851). To the extent that
this finding indicates that providing information to the applicant will help the
applicant safeguard his or her interests, the applicant must be informed that
the assignment to a particular occupational code will tend to restrict his or
her chances of referral to other types of jobs. Without this information, the
applicant would have no occasion to object to being assigned to a particular
occupational code. The evidence is undisputed that applicants are not told
that assignments to a particular occupational code may tend to restrict their
28/
opportunity of referral to other types of jobs, and might have objected if
29/
they had been so informed.
The district court found that Mr. Lindsey "regularly gives talks in
28/ Testimony of Mr. Lindsey, Tr. 924-25. Mr. Nash testified that
applicants agreed with their codes, (Tr. 2038, 2056), but went on to say that
applicants were mainly concerned about getting a job, and 99% of them did not
know what their code assignments meant. (Tr. 2057-58). While he said that he
explained the meanings of codes to the applicants he interviewed (Tr. 2058,
2096)--only 10% of his time was spent interviewing after mid-1974 (Tr. 2039-41)
--he could not speak for other interviewers, and was not surprised that several
black applicants had testified they were not given such information (Tr. 2030-
81). Mr. Beverly testified that the applicants he had interviewed on his trips
to the Cleveland office did not understand their occupational code assignments.
(Tr. 2305-06; State defendants' exhibit 80, p. 2).
29/ Testimony of Rebecca Gillespie, Tr. 68-69, testimony of Mary Boyd,
Tr. 138-39, 168; testimony of Ollie White, Tr. 337; testimony of Eva Ann Lofton,
Tr. 350-52 (the Court sustained an objection to the question whether she knew
that any code given her would reduce her chances of referral to another job);
testimony of Pearline White, Tr. 391-92; testimony of Adline Ward Brown, Tr. 524;
testimony of Freddie Funchess, Tr. 489, 495-96; testimony of Mary Alice
Gillespie, Tr. 290-91, 308, 312-13 (she agreed only to be referred as a Kitchen
Helper "if they couldn't find nothing else"); testimony of Leaner Terrell, Tr.
459.
-38-
the community ... about the Job Bank Viewers, how to use them, and the oppor
tunities for employment that they contain." (R. 2125, App. 92) . The Job
Bank viewers available to the public show information about available local
jobs, and about available jobs in other parts of Mississippi. While the
public is not given access to the names and addresses of employers, details of
the available jobs and their pay rates are provided. The viewer uses micro
fiche, and it is not possible to use it unless one has been shown how to do so.
(Stipulation, 55 51-54; testimony of Mr. Lindsey, Tr. 797-99; 927-30, 933-40).
Mr. Lindsey believed it was "useless" to show applicants how to use the Job
Bank viewers if they are not available for referrals outside the area, but
thought that most applicants were shown how to use the viewers. (Tr. 927-29).
Mr. Nash agreed. (Tr. 2073-75). The use of a Job Bank viewer can help appli
cants find jobs in codes to which they have not been assigned, and thus over
come the restrictive effect of their code assignments, because it enables them
to identify for themselves available local or distant jobs and the qualifica
tions for such jobs, and to make their interest in such specific jobs known to
MSES interviewers. (See Stipulation, 5 53; testimony of Freddie Funchess, Tr.
490, 492-93). However, a substantial number of black applicants, including
one called as a witness for the State defendants, testified that the Bolivar
30/
County branch office did not show them how to use the Job Bank viewers.
30/ Testimony of Rebecca Gillespie, Tr. 74, 104; testimony of Eva Ann
Lofton, Tr. 350; testimony of Pearline White, Tr. 392; testimony of Freddie_
Funchess, Tr. 490; testimony of Mary Alice Gillespie, Tr. 291, 310-11; testi
mony of Leaner Terrell, Tr. 459; testimony of Ollie White, Tr. 337-38; testi
mony of Gloria Triplett, Tr. 435; testimony of Elexo Warren (State defendants’
witness), Tr. 1990. Mr. Beverly agreed that some of the applicants with whom
he discussed the operations of the Cleveland local office were not aware of
the Job Bank viewer. He did not think interviewers were required to explain
its use. Tr. 2310-11; State defendants’ exhibit 80, p. 2.
-39-
The district court found that Federal regulations require the assignment,
"[w]here opportunities for employment are limited,", of "at least one additional
classification for which there is a specific or general opportunity for work,"
(R. 2138, App. 104). The use of secondary occupational codes increases an
applicant's opportunity for referral. (Stipulation, 5 41; testimony of Mr.
Lindsey, Tr. 810). It was the policy of the U.S. Department of Labor to
encourage the assignment of secondary occupational codes. (Stipulation of
the parties, Tr. 813; Stipulation, 5 41). On June 29, 1968, however, the Sec
retary's office found that the Cleveland branch office was not giving secondary
codes to applicants, and found that this had a greater adverse effect on black
applicants "because of their traditionally limited job opportunities." (Plain
tiffs' exhibit 114, pp. 3-4). On August 19, 1968, Mr. Aldridge responded, stat
ing that inadequate classification of applicants "was and continues to be state
wide, one of our most serious problems." He said that additional training was
being given. (Plaintiffs' exhibit 158, p. 3) .
Plaintiffs' exhibit 106 shows that only 45 secondary codes were given to
3,292 applicants in 1970, a rate of only 1.4%. Questioned about this, Mr.
Lindsey stated that it was the best his office could do, and showed "some pro
gress". (Tr. 814-15). The same problem was noted in Mr. Beverly's EEO Evalua
tion of the Cleveland office, dated November 7, 1978. (State defendants' ex
hibit 80) .
c) Classifications and Referrals in Service and Farinwork
Occupations__________________________________________
One of the best examples of the interplay of discrimination in referrals
with discrimination in classifications occurs with respect to the disproportion
ate classifications of black women in, and referrals to, low-paid Service jobs
(code 3). Plaintiffs' exhibits 60, 62, 64, 66, 68, 70, 72, and 74 show the
-40-
following information as to referrals.
31/
Table 15 . Referrals of Black Women to Service Occupations,
1970-1973 __________________ _______________
Referrals of Black Women To
Service Occupations, 1970-1973
As Percent of All
As Percent of Referrals Given to
Year Women Referred Black Women_____
1970 87.0%
1971 81.0%
1972 87.8%
1973 81.9%
65.9-%
92.8%
72.6%
98.8%
Black women are also disproportionately classified into Service occupational
codes, (plaintiffs' exhibits 80, 105), and the propriety of these referrals
must be seen in light of the propriety of these classifications.
Mr. Lindsey testified that he had received oral instructions in the mid-
1960's or late 1960's to avoid assigning "Maid" codes to applicants with some
education. He stated that his office had tried to upgrade the classifications
of blacks. (Tr. 829-26). Plaintiffs' exhibit 82 lists 90 black women and one
white woman with an education of 8th grade or above, who were classified as
Maids in 1970. Seven of them had high school degrees. Plaintiffs' exhibits
83, 89, and 85 showed that the same problems had continued in 1972, 1979, and
1976. Despite his instructions and the "upgrading" program, Mr. Lindsey
testified that these assignments could have been proper, if the black women in
question had had no other kinds of prior experience or if they had nad no other
interests. (Tr. 829-30). When his attention was directed to the fact that
these exhibits showed that a number of the black women reflected on them had had
other kinds of prior experience, and that plaintiffs' exhibit 89 showed that a
31/ Ms. Thome, the preparer of these exhibits, testified that the
column headings such as "white males referred" actually mean "white male
referrals". (Tr. 697-52).
-91-
number of them had expressed preferences for other kinds of work, he testified
that these classifications were mistakes which may have been made in haste.
(Tr. 830-31). He testified that he had been aware of the problem, but that he
had only cautioned his staff about the importance of upgrading codings, and
thought it would be "getting pretty specific" actually to alter the codes; he
surmised that MSES staff may simply have known that the codes were incorrect
and not have relied on them. (Tr. 829-33) . However, half of the referrals
made by the local office are made on the basis of a file search of the active
applicant files, and these are maintained on different interviewers' desks
according to the code numbers for which those interviewers are responsible,
(Tr. 800-02, 939,40), and an interviewer handling another code may not even
know of the existence of these black women mistakenly classified in a tradi-
32/
tionally-black occupation.
Mr. Lindsey testified that he also made efforts to upgrade the classifi
cation of black males assigned to the traditionally-black Farmwork codes. (Tr.
826). Plaintiffs' exhibits 86, 87, and 88 listed black males and white males
classified in Service or Farmwork occupations, with an eighth-grade or better
level of education. Mr. Lindsey testified that he saw the same problems indi
cated by these exhibits as he had seen for the classifications of black women
into Maid positions, but thought he saw progress. (Tr. 849). However, the up
grading efforts were more successful for white males than for black males:
32/ One of Mr. Lindsey's self-appraisal forms state that Maid applica
tions were pulled and that all persons classified into this occupational code
had either farm experience, work experience, or no previous work experience.
(There is no evidence that any inexperienced white women were routinely classi
fied into this traditionally-black occupational code). Others state that the
applications reviewed did not indicate any mistakes in coding. See State
defendants' exhibits 44-55. The evaluative statements in these exhibits are
not accurate.
-42-
Table 16. Results of Efforts to Upgrade the Codes of Male
Applicants With an 8th-Grade or Better Level of
Education, Classified in Service or Farmwork Codes,
1970-1976 ____ ________ __________________
Total No. of Such No. of Such White No. of Such Black
Year
Males Classified
In Codes 3 or 4
Males Classified
in Codes 3 or 4
Males Classified
in Codes 3 or 4 % Black
1970 132 41 91 68.9%
1972 121 15 106 87.6%
1976 50 0 50 100 %
(Calculation of counsel from plaintiffs’ exhibits 86, 87, and 88).
d) Sharp Increases in the Numbers of Black Women Assigned to
Clerical and Sales Codes After the Filing of Suit________
Plaintiffs’ exhibit 9 shows classifications in the traditionally-white
Clerical and Sales codes in FY 1972, FY 1973, and FY 1974. While the exhibit
does not indicate sharp changes in the numbers of black males assigned to such
codes between FY 1972 and FY 1974, it does show such sharp changes for black
women, far outstripping the changes of white women:
Table 17.
Occupational Code
All Clerical and
Sales Codes
All Clerical Codes
--Fully qualified
--Not fully qual.
-- Total
All Sales Codes
-- Fully Qualified
--Not fully qual.
-- Total
Increases in the Numbers of Black Women Assigned to
Clerical and Sales Codes, FY 1972 to FY 1974_______
White Females
Number-
FY 1972
Number-
FY 1973
Number-
FY 1974
% Change --% Change
FY 1972-74 FY 1972-1974
254 321 507 + 100 % + 9.1%
151 117 147 - 2.6% - 13.7%
54 119 174 + 222.2% + 221.6%
205 236 321 + 56.6% + 12.7%
31 32 47 + 51.6% - 29.5%
18 53 139 + 672.2% + 110.7%
49 85 186 + 279.6% 0 %
Accordingly, plaintiffs' exhibit 9 shows that black women were only 35.4% of
the women assigned to Clerical and Sales codes in FY 1972, but were 50.1% of
the women so assigned by FY 1974. While black women were only 39.1% of the
Inexperienced women assigned to Sales codes (Codes 25X-29X) in FY 1972, they
were 70.2% of such women in FY 1974.
-43-
There is no evidence of any event which could have caused a correspond
ingly sharp increase in the qualifications of black women for Clerical or Sales
jobs in this period, and in particular there is no evidence of such an event
which could have had such an effect on the qualifications of black women
while leaving the qualifications of white women relatively unchanged. The
conclusion seems inevitable that MSES began evaluating the actual qualifica
tions of black women much differently after the filing of suit.
e) Racial Differences in the Classification of Female
Applicants with a Seventh-Grade or Lower Level of
Education, 197M-______ _________________________ _
Plaintiffs’ exhibits 77 and 78 show strong racial differences in assign
ments to various occupational codes in 1971. While the above discussion shows
that there were improvements for black women after the filing of suit, plain
tiffs’ exhibit 81 shows that sharp differences continued to exist. This
exhibit shows that these white women were 10.7% of the female applicants in
197h with a 7th-grade or lower level of education, but that these white women
constituted M-2.9% of the women with this level of education who were assigned
to Clerical and Sales codes, 31.3% of the women with this level of education
who were assigned to Processing, Machine Trades, Bench Work, Structural Work,
and Miscellaneous occupational codes (codes 5-9) , but were only 5.6% of the
women with this level of education who were assigned to the lower-paid,
traditionally-black Service and Farmwork codes.
f) Other Evidence of Discrimination in Classifications
In 1968, the U.S. Department of Labor found that the Cleveland office
had classified inexperienced white applicants with codes indicating that they
were fully experienced in public contact positions, but had given inexperienced
-hh-
The Department alsoblacks codes in "menial or traditional job areas."
found that white applicants were given both a code for the desired goal occu
pation and a code for the stopgap occupation, but black applicants were given
only one or the other. The Department also noted that MSES staff members at
the Cleveland office let a black applicant sit for an extended period of time
without being served, whereas a white applicant who subsequently walked in the
door was given immediate service. (Plaintiffs' exhibit lib, pp. 3, 4). Mr.
Aldridge's response on the question of discriminatory classifications has been
described at 40, supra. On the question of discrimiiatory handling of appli
cants, he stated: "Follow-up visits indicate individuals are served in the
34/
order in which they enter the office." (Plaintiffs' exhibit 158, p. 2).
Plaintiffs' exhibits 78 and 79 are lists of the 73 occupational classi
fications in the Bolivar County branch office in which ten or more applicants
had been assigned in 1971. (Plaintiffs' exhibit 77 has more detailed informa
tion) . These exhibits show a strong pattern of racially and sexually segrega
ted occupational assignments. Plaintiffs' exhibit 78 shows that one race
accounted for 80% or more of the applicants classified in 34 of the 73 occupa
tional codes. This is 46.6% of the total. For women, the segregation of
33/
33/ Many of the inexperienced white women assigned to Clerical and Sales
codes were given full codes, erroneously indicating that they were fully
experienced.
34/ The testimony of some of the plaintiffs and class members for the
earlier years covered by this case supports the findings of the Department of
Labor. Mary Boyd testified that white applicants were given longer interviews
than blacks. (Tr. 141-42, 161-62). Rebecca Gillespie testified that she was
always treated courteously in the MSES office, but that interviewers spent much
longer with white applicants than with black applicants. (Tr. 116-17, 120, 129 ~
31). Pearline White testified that she would have to sit for 15 or 20 minutes
in order to be waited on, but whites were handled as soon as they walked in.
(Tr. 393). Leanner Terrell complained of the same practice, and also complained
that MSES staff used courtesy titles when speaking to white applicants, but
called black applicants by their first names. (Tr. 469-70).
-45-
occupational codes was even stronger. Plaintiffs' exhibit 79 shows that one
sex accounted for 80% or more of the applicants classified in 56 of the 73
occupational classifications. This is 76.7% of the total. Moreover, one sex
accounted for 90% or more of the applicants classified in 38 of the 73 occupa
tional classifications. This is 52.1% of the total 73 occupational classifi
cations .
Plaintiffs' exhibit 15 is a list of black women assigned to nonclerical
codes in 1970 who had clerical skills, clerical experience, or at least a
tenth-grade education. Plaintiffs' exhibit 90 is a list of white women assign
ed to Clerical and Sales codes in 1970. Mr. Lindsey's attention was drawn to
the entries for a number of inexperienced white women on plaintiffs' exhibit 90
who had been classified in Code 2, including an inexperienced white woman with
a second-grade education, (Tr. 898-906), ^ his attention was then drawn
to the entries for a number of black women on plaintiffs' exhibit 15 who had
better qualifications but were assigned instead to predominantly-black Service
or Farmwork occupational codes. (Tr. 906-19). The Court sustained an objection
to the question whether the qualifications of these black women were just as
good as the qualifications of the white women given Clerical and Sales codes,
on the ground that there might also have been some white women with the same
35/
types of qualifications who were not given Clerical and Sales codes. (Tr. 919) .
The Court then sustained an objection to the question whether Mr. Lindsey knew
of any reason, other than race, for the assignment of the previously-discussed
35/ Counsel for plaintiffs pointed out that the Service and Farmwork
codes were almost entirely black in 1971 (plaintiffs' exhibit 77), and that he
would like to ask Mr. Lindsey whether there was any appreciable difference in
1970. (If an occupational code is almost entirely black, there would be no
appreciable number of white women in the same situation as the black women on
plaintiffs' exhibit 15). The Court ruled that Mr. Lindsey should not be re
quired to state his opinion with respect to what the statistics showed. (Tr.
920-22) .
- 1+ 6-
black women to predominantly-black occupational codes, while the previously-
discussed white women had been assigned to Clerical and Sales occupational
codes. (Tr. 922).
The district court did not address this evidence in its decision, ex
cept to state that "all of the relevant and available information was not
reflected in the charts and schedules presented for use in the presentation of-
36/
plaintiffs’ case." (R. 2167, App. 130). The defendants presented no evi
dence that the inclusion of any other factor would alter any inference to be
drawn from the exhibits of record.
6. Discrimination in Testing
General facts as to the testing practices of MSES, and as to policies
and practices of the U.S. Department of Labor on the development and use of
tests, are set forth in Stipulation 5? 76-109. Plaintiffs withdrew at trial any
claim of discrimination with respect to the use of tests for counselling, and
such use is not raised on this appeal. The Specific Aptitude Test Batteries
("SATB's") which are challenged on this appeal are the S-28 Table Worker te-st
used for referrals to the Assembler job category at Baxter Laboratories from
1965 until November 3, 1971, the S-282 and S-282R Nurse Aide tests used for
referrals to the Nurse Aide training program at East Bolivar County Hospital
from November 3, 1971 to December 2, 1976, and the S-270 and S-270R tests used
for referrals to the Licensed Practical Nurse training program at East Bolivar
36 / Exhibits containing all of the "available information" would have
been impossible to prepare or, if prepared, to comprehend. Ms. Thome testi
fied that, in some years, there were close to 9,000 pages of documents connected
with applications, and that a total of 40,000 pages of MSES application and job
order records had been microfilmed. Additional records were xeroxed. A total
of eight persons worked on the duplication of MSES records in Mississippi over
a three-week period. After the records were duplicated, a total of eleven
temporary personnel were hired, in addition to permanent members of the Lawyers’
Committee’s staff, to analyze the records. The task began as soon as the copies
from Mississippi arrived, and ended only a few hours before the October 1978
deadline for the exchange of exhibits. The preparation of the exhibits of
record was extremely painstaking and time-consuming. (Testimony of Linda Thome,
Tr. 539-40, 551-56, 762-63).
-47-
County Hospital from November 3, 1971 through at least the close of the record.
(See Stipulation, 55 100-01).
a) Evidence of Disproportionately Adverse Impact of the
Challenged Tests on Blacks__________________________
The district court held that plaintiffs had failed to establish that
any of the challenged tests had a racially disparate impact. (R. 2195-97,
2169, App. 110-12, 131) .
Plaintiffs’ exhibit 127 shows that, from 1971 through 1976, 1,591 blacks
were classified in the Nurse’s Aide code, but only 180 blacks were referred to
the Nurse's Aide Training Program at East Bolivar County Hospital. This is a
referral rate of 11.3% for blacks. The same exhibit shows that 278 others--
primarily whites-- had been classified in the Nurse's Aide code, but 137 of them
37/
had been referred to the training program, for a referral rate of 9-9.3%.
The racial differences in the classification and referral rates are statisti
cally significant. (Testimony of Dr. Outtz, Tr. 1583). The standard-deviation
analysis for each of the years from 1971 through 1975 (there was only one
referral in 1976), and for the total of these years, is shown in Table 18;
Table 18 . Standard-Deviation Analysis of the Referrals
to the
Bolivar
Nurse's Aide Training
County Hospital
Program at East
Availability (Proportion of
Those Classified as Nurse's
1971 1972 1973 1979 1975 1971-75
Aides Who Were Black) 73.5% 79.1% 87.0% 90.5% 87.9% 89.6%
Sample Size (No. of Referrals) 63 60 39 85 69 316
Expected No. of Black Referrals 96.3 97.5 33.9 76.9 60.7 267.3
Observed No. of Black Referrals 30 35 20 99 96 180
Difference -16.3 -12.5 --13.9 -27.9 -19.7 -87.3
Standard Deviation
No. of Standard Deviations
Between Expected and Observed
3.5 3.1 2.1 2.7 2.7 6.9
Values -9.7 -9.0 -6.6 -10.3 -5.9 -13.6
(footnote 37 on next page)
-98-
The district court dismissed this evidence on the basis that "Dr. Outtz did not
know how many if any of these persons were test selected." (R. 214-6, App. Ill).
The record evidence contains no dispute on this score: it was not necessary
to take and pass the Nurse’s Aide test in order to be classified as a Nurse’s
Aide, but it was necessary to take and pass this test in order to be referred
to the training program as shown on the exhibit. After making an initial mis
statement, Dr. Outtz instantly corrected himself and so testified. (Tr. 1591).
Mr. Lindsey testified that, when his office had an agreement with an employer
that a test would be used, only persons who had passed the test would be re
ferred, and persons with "H" scores would be referred before anyone with "M”
38/
scores would be referred. (Tr. 24-88-89, 24-91) .
Plaintiffs’ exhibits 14-5 and 163 reflect information on a chart pre
pared by MSES in 1971 and attached to an interrogatory answer, showing that
blacks fell below the norms at a substantially higher rate than whites on the
S-28 Table Worker test, and on a group of "all other SATB's" including the
S-282 Nurse Aide test and the S-270R Licensed Practical Nurse test. Dr. Outtz
testified that the racial disparity for the S-28 test was statistically signifi
cant at the .02 level, and that the racial disparity for "all other SATB’s" was
statistically significant at the .001 level. (Tr. 1582-83). The exhibit
(Footnote from previous page)
37/ Ms. Thome testified that the "Training Program" mentioned in the ex
hibit was the training program at the East Bolivar County Hospital. (Tr. 726).
38/^Stipulation exhibit 53 at p. 13 describes the scoring of SATB results.
If an applicant’s scores meet or exceed the cutting scores for each aptitude
test in the battery, the letter grade ”H" is assigned. If the applicant’s
scores, when supplemented by one standard error of measurement ("SEM")--ranging
from 6 to 12 points, depending on the aptitude--meet or exceed the cutting
scores for each aptitude test in the battery, the letter grade "M", is assigned.
If an applicant's scores do not meet the requirements for an "M”, the letter
grade ’f’L" is assigned. Stipulation ? 82 states that this procedure is the one
used.
-49-
itself did not show who was referred and who was not referred. (Id., Tr. 1590-
91). The district court rejected this evidence, stating that all applicants
classified as "failing" in the exhibits were, according to testimony and De
partment policy, eligible for referrals, that some of them scored "M", and
that those scoring "M" received "very nearly the same consideration as those
’passing.T" (R. 2156, App. 120). The evidence, however, is undisputed that
MSES never referred applicants with "L" scores. (Testimony of Mr. Lindsey,
39/
Tr. 29-91) . The refusal to refer applicants with "L" scores was not shown to
be a violation of Department policy. Indeed, Mr. Hawk testified that "it would
be a rather rare case that L’s would be referred". (Tr. 1866). Applicants
with "M” scores were never referred unless there were too few applicants with
"H" scores to meet the demand for referrals. (Testimony of Mr. Lindsey, Tr.
29-89-91). Thus, all of the applicants in the "Below Norm" statistics in plain
tiffs’ exhibits 19-5 and 163 were, at best, disadvantaged by their test scores
in obtaining referrals; at worst, they were barred entirely from referral.
Plaintiffs’ exhibit 18 is a list of both black and white female appli
cants assigned to the Licensed Practical Nurse code during 1972, 1979-, and
1976. While MSES kept some test results on application forms (e.g ., plain-
39/ The sole exception to this policy was that an applicant with an "L"
score could be referred to an employer if the SATB in question used the G, V,
or N aptitudes and the SATB had not yet been validated on members of minority
groups. In such situations, the Department of Labor's "interim referral
policy" was to apply, and the local office was to make referrals of enough mem
bers of minority groups to ensure that there would be the same proportion of
minorities among the referrals as the proportion of minorities in the local
office’s applicant flow. If necessary to meet this requirement, minority ap
plicants with "L" test scores could be referred. (Stipulation, 89-, 85;
testimony of Mr. Lindsey, Tr. 2489-91).
While the interim referral policy was supposed to have been applied to
the Nurse’s Aide test until May 21, 1976 (plaintiffs' exhibit 165, p. 2),
plaintiffs’ exhibits 126 and 127 show that it was not in fact applied.
(Testimony of Mr. Lindsey, Tr. 29-96) .
-50-
tiffs’ exhibit 16; testimony of Dr. Outtz, Tr. 1592-99), much of its testing
90/
information is kept on test record cards. (Affidavit of Counsel, R. 2099-
2100; quotation by counsel for Federal defendants from a 1979 deposition of
Mr. Lindsey, Tr. 1635-36). Test results for the Licensed Practical Nurse
test were reported on the application forms of 35 whites and of 27 blacks re
flected on this exhibit, and the exhibit contains their test scores. It shows
the following:
Table 19. Test Results for the Licensed Practical Nurse SATB
Reported on Application Forms_____________________
Total ”H’’ Scores ’’M’’ Scores "L" Scores
Whites:
-- Number 35 30 5 0
-- Percent 100% 85.7% 19.3% 0%
Blacks:
-- Number 27 5 8 19
-- Percent 100% 18.5% 29.6% 51.9%
Although this information was called to the attention of the district
court in a special post-trial briefing of the issue and again in plaintiffs’
post-trial proposed findings of fact and conclusions of law, the district court
did not discuss this evidence in its decision. The standard-deviation analysis
of the information shown in Table 20 is as follows:
90/ Because test record cards do not record the race of the applicant
whose test results are reported, it would have been an extremely difficult and
time-consuming task to track down the applications of the persons reflected on
these cards and obtain their race. Applications are kept with the records for
the last year in which the applicant was active, so many years' data would
have to be checked. In addition, women's marital name changes would complicate
the task greatly. (Affidavit of counsel, R. 2099-2100).
-51-
Table 2Q . Standard-Deviation Analysis of the Test Results
for the Licensed Practical Nurse SATB Reported
on Application Forms
"H" Scores "H” or "M” Scores "L" Scores
Availability (Proportion of
Blacks in the Group) 43.5% 43.5% 43.5%
Sample Size (No. Achieving
the Score Indicated) 35 48 14
Expected No. of Blacks 15.2 20.9 6.1
Observed No. of Blacks 5 8 14
Difference -10.2 -12.9 +7.9
Standard Deviation 2.9 3.4 1.9
No. of Standard Deviations
Between Expected and
Observed Values -3.5 -3.8 +4.2
The defendants stipulated to substantial differences in the average
scores of blacks and of whites on each aptitude of the General Aptitude Test
Battery, from which the challenged Specific Aptitude Test Batteries were drawn.
(Stipulation, 5 78). The district court noted the argument of the Federal
defendants that this nationwide data did not show any impact on blacks of any
test in the Cleveland local office, (R. 2146, App. Ill), and seemingly accepted
this argument. However, Mr. Lindsey testified at trial that he had noticed
that test scores were "somewhat lower than normal" on the G, V, and N aptitudes.
(Tr. 2502-03 (as corrected)). It is clear that Mr. Lindsey was referring to
41/
black scores.
41/ Counsel for plaintiffs asked the court reporter, Mr. Holman, to
check his notes as to the accuracy of Tr. 2503, line 4, as originally reported,
because this did not accord with counsel’s recollection or with Mr. Lindsey’s
1974 deposition testimony. Mr. Holman checked his notes, and stated that the
phrase "lower than" had inadvertently been deleted from this line. He stated
that he would provide a corrected page 2503 to the Court and to counsel. With
this change, Mr. Lindsey's trial testimony is consistent with his March 19,
1974 deposition testimony that blacks scored "somewhat lower" than whites on
the G, V, and N aptitudes. (Dep. Tr. 28).
-52-
The EEOC found that use of the GATB resulted in disparate impact against
blacks. (Plaintiffs’ exhibit 103).
Dr. Outtz testified that there was a consensus within the industrial
psychological profession that blacks score much lower than whites on the
kinds of aptitude tests exemplified by the GATB. (Tr. 1578-79). Dr. Outtz
testified without contradiction that evidence such as the above would ordin
arily be accepted within the industrial psychological profession as an ade
quate showing of racially disparate impact. (Tr. 1583-84).
b) Evidence as to Validation
1) Evidence Other Than Dr. Hunter's Testimony
As a result of "outside pressure" and "legal events", the Department of
Labor announced in 1972 a program to re-validate those SATB's using G, V, or N
aptitudes, and to perform minority-differential studies on them. It concluded
that other SATB’s would be unlikely to result in disparate impact against mem
bers of minority groups. (Testimony of John Hawk, Tr. 1751-55, 1789-91; stipu
lation exhibits 56, 57) .
As a result of the re-validation program, the S-282 Nurse Aide test was
replaced by the S-282R Nurse Aide test, using different aptitudes or cutting
scores. For Licensed Practical Nurse, three different tests have been used
between 1963 and the present. One was used from 1963 to 1970, when a new vali
dation study led to the use of a different battery. That battery was again
changed as a result of the re-validation program. Plaintiffs' exhibits 139 and
141 detail the differences in aptitudes and cutting scores each new study led
the Department to make.
Mr. Hawk testified that scores on the G, V, and N aptitudes tend to be
highly intercorrelated, that the same is true for the perceptual aptitudes,
that the same is true for the manipulative apitudes, and that there were strong
-53-
relationships across these groups. Because of this, it was unsurprising that
use of different samples in different studies might produce different batteries.
(Tr. 2580-81). However, plaintiffs’ exhibits 140 and 142 show that aptitudes
found significantly related to performance in one administration of the test
turned out to be unrelated to performance in another administration of the same
test. Dr. Outtz testified that the lack of any stability in the results indi
cates that the studies performed were not meaningful. (Tr. 2691-95).
There are no minority-differential studies for the S-28 Table Worker
test, the S-282 Nurse Aide test, or the S-270R Licensed Practical Nurse test.
(Stipulation exhibits 70, 71 and 73; testimony of Mr. Hawk, Tr. 1800-01). Mr.
Hawk stated that it was usual practice, in performing a new validation study,
to re-run the old test on the new sample. He thought it "highly probable”
that the old Nurse Aide and LPN tests had been run on the minority sub-samples
used in the re-validation program, but admitted that the results were not set
forth in the new technical reports and stated that he has no knowledge of the
results of any such efforts. (Tr. 1867-68) . The Federal defendants did not
produce any knowledgeable witness.
There is a particular problem of record with respect to the Nurse Aide
validation effort reflected in stipulation exhibit 68. The validation study
was done for three hospitals in Virginia; while cross-validation samples were
used, there were no minority sub-samples in the old data used for such purposes.
Mr. Hawk testified to the Department’s policy of obtaining the largest possible
validation samples, and of obtaining multistate validation samples. (Tr. 1682,
1684— 85, 1791-94). He also testified that it was improper to exclude data
selectively from a sample in order to help obtain a correlation between test
scores and the criterion of performance. (Tr. 1881). Plaintiffs’ exhibit 169
is a set of documents establishing that the Department had received data from
-54-
a large number of States which were not used in the re-validation program, and
that the decision not to use these data cut more than 200 blacks and more than
200 whites from the validation sample. Mr. Hawk was unable to explain the ex
clusion of this data from the published technical report, (Tr. 1885), and the
Federal defendants’ right to provide an explanation later in the trial was re
served. (Tr. 1886) . Although the Federal defendants recalled Mr. Hawk to the
stand (Tr. 2578), he did not produce an explanation. Herbert Campbell, who was
involved in the collection of data for the Nurse’s Aide study, stated that he
also did not know why the data were excluded. (Tr. 2620-21). The Federal
defendants did not produce any knowledgeable person or explanatory document.
In order to determine whether test scores are related to performance, it
is necessary to develop a criterion of performance. For the result of the
study to be meaningful, it is essential that the criterion of performance be
reliable, accurate, and meaningful. Prior to the Department's performance of
minority-differential studies as part of its re-validation program, it most
often used work samples, production records, and specifically detailed supervi
sory ratings as criteria of performance. Where supervisory or instructors’
ratings were used, ratings were obtained from two different persons and corre
lated so that their reliability could be checked. By contrast, the minority-
differential studies in the re-validation program used supervisory or instruc
tors' ratings almost exclusively, used a general "global” scale rather than one
tied specifically to job duties, and used one rater rather than two. The same
rater was asked to give ratings a couple of weeks apart, and those ratings were
then correlated. This procedure overstates the actual reliability of these
ratings. The use of the global scale makes it impossible to limit the ratings
to the duties which are most important, and to exclude from the ratings those
duties which are ordinarily learned in a short period of time by new hires.
-55-
The Department provides a range of 15 to 45 minutes training-- usually about
20 minutes-- to the raters, and relies on their previous experience as super
visors in rating employees, but makes no effort to exclude from the data rat
ings by supervisors without such experience. It has never researched the ade
quacy of this amount of training. The validation sample is ordinarily obtained
from a number of different locations, and there is no effort made to ensure
that work which would produce one rating at one location is rated similarly
elsewhere. The Department is aware that the same types of work are in fact
rated differently in different locations. The dividing line between "poor"
and "good" performance is set arbitrarily so that roughly a third of the work
ers in any validation sample are considered "poor". This dividing point does
not correspond to what the employers of workers in the validation sample would
consider good or bad performance; because it is set nationwide, an employer
with a small number of workers in the validation sample might have them all
considered "good" or "poor" by the Department without regard to the employer's
actual evaluation of them. Some of these workers had had lengthy service with
42/
their employers. Job duties also differ in some degree from location to
location, and the Department's witnesses were unable to state with any partic
ularity the degree of differences in duties which were tolerated in the vali
dation samples. Although blacks generally receive lower supervisory ratings
than whites, the Department relies on the twenty minutes' training to avoid
racial bias in the ratings, and has never gone back to any supervisor who had
rated blacks lower than whites and made any effort to find out whether the
42/ Although Mr. Hawk saw no problems with the idea that a long-term
employee may be a bad employee for the purposes of a test validation study,
(Tr. 1853-54), he testified that it was Department policy to forbid use of the
resulting test on an applicant with prior experience in the job because of the
applicant's "demonstrated competence". (Tr. 1732, 1876-77).
-56-
lower rating was objectively made. Where blacks tend to receive lower test
scores than whites and tend to receive lower ratings than whites, any super
visory bias in the ratings given to blacks may produce an erroneous finding of
validity of the test under study. Generally, Mr. Hawk admitted, in the re
validation program the Department gave a higher priority to the collection of
data than to the development of a reliable criterion of performance. At the
time of trial, the Department was researching more detailed rating scales,
specifically tied to job duties, and using work samples and production records
in some studies once more as criteria of performance. (Testimony of John Hawk,
Tr. 1694, 1794-1800, 1801-16, 1822-25, 1831-40, 1842-58, 1864, 2578-79; testi
mony of Herbert Campbell, Tr. 2597-99, 2608, 2621-24; testimony of Dr. Outtz,
Tr. 2658-83, 2703-05, 2711-13; stipulation exhibit 80, p. 51; plaintiffs' ex
hibit 166 at pp. 789-90, 793; plaintiffs' exhibit 167; plaintiffs' exhibit 172
at pp. 27, 34, 38, 43-44; plaintiffs' exhibit 173 at pp. 1397-1400).
The validation studies in question suffer from the problem of restrictior
in range. Although intended to be used on applicants, the studies were all
performed upon experienced employees, some of whom had fairly long lengths of
service. The workers in the validation samples generally had levels of educa
tion considerably higher than those among the applicants in the Cleveland local
office. In the validation sample for the S-270R75 Licensed Practical Nurse
test, roughly a sixth of the black sub-sample and roughly a sixth of the white
sub-sample were obtained from a hospital which hired only persons who were in
the top 5% of their classes; the results of the validation sample were also un
usual, in comparison to the results shown in other validation reports with
minority subsamples, because blacks met the test norms in almost the same pro
portion as whites. (Testimony of Mr. Hawk, Tr. 1860-67; testimony of Dr. Outtz.
Tr. 2683-87, 2697-2700, 2706-09; plaintiffs’ exhibit 168, p. 19; plaintiffs'
-57-
exhibit 172, pp. 27, 38; plaintiffs; exhibit 173, pp. 1400, 1406-07; stipula
tion exhibits 68-71).
There is no concrete evidence of the practical utility of the challenged
43/
tests. The coefficients of correlation with the criteria of performance are
not meaningful because the criteria themselves are not meaningful. In any
event, the correlations are generally between .2 and .3, and this means that
the scores on these tests predict no more than from 4% to 9% of the variability
in performance among different employees, and leave 91% to 96% unmeasured.
This is too small an effect to justify the use of a test with racially disparate
impact. (Testimony of Dr. Outtz, Tr. 2687-91, 2702-03, 2720-21). Mr. Hawk
thought that the test studies showed their utility, (Tr. 1869-71), but the
test studies did not compare the effectiveness of the tests in selecting good
workers, and avoiding the selection of bad workers or the exclusion of good
workers, with the effectiveness of the other selection devices used by the
employers in the study. Plaintiffs' exhibit 143 shows that the S-282R Nurse
Aide test would have excluded 14.3% of the white "good students" and 27.5%
of the black "good students". In assessing utility, this is an important con
sideration. (Testimony of Mr. Hawk, Tr. 1869; testimony of Dr. Outtz, Tr.
2695-96). Dr. Hunter testified that this racial difference should be expected
from a fair test. (Tr. 2906-08) .
2. Dr. Hunter's Testimony
Dr. Hunter's testimony was crucial to the district court’s decision.
It was based on mathematical operations he had performed on coefficients of
correlation between test scores and criterion measures of performance in large
numbers of studies done by others. He testified that his views were based on
43/ Dr. Hunter's testimony is discussed below at 63.
-58-
"1,700 correlations" done by himslef, his wife, and another (Tr. 2966), on
"empirical evidence covering literally thousands of studies" (Tr. 3056), "hun
dreds and hundreds of studies and a number of reviews on top" (Tr. 3097) , and,
later, "1,100 sets of data" (not studies) from an unknown number of studies
(Tr. 3111), all bearing on the question of minority differential validation.
The number of studies on which he based his evidence on validity generaliza
tion was equally astronomical. He had not himself read the studies on which
he relied, but depended on the reports of these studies made by others when he
performed his calculations. (Tr. 3111-12) . Because of his having been retainec
by the Federal defendants-- at his July 5, 1979 deposition, he stated that he
was first contacted by the Department of Labor about this case "last week",
Dep. Tr. 5--plaintiffs have never had an opportunity to discover and test
the accuracy of the data on which he relied, or to see whether it supports con
clusions other than those to which he testified.
In Dr. Hunter's testimony, a test was considered as having "validity"
if there was a significant nonzero coefficient of correlation between test
score and criterion of performance. A "validity coefficient" was no more nor
less than a coefficient of correlation. (Tr. 3001, 3077). Thus, a test which
had a .1 correlation between the test score and the criterion of performance--
explaining no more than 1% of the variability in individual performance and
leaving 99% unmeasured-- could be considered to be valid and to have practical
utility in his testimony. (Tr. 300H-05). Compare testimony of Dr. Outtz.
(Tr. 2687-89) .
Substituting the phrase "significant nonzero correlation" for the term
"validity" for the sake of clarifying his testimony, Dr. Hunter testified that
the large number of correlations he had reviewed showed a common pattern.
Significant nonzero correlations between test scores and criteria of perfor
-59-
mance had been found for the same tests or even types of tests, even when job
content changed radically. While the size of the correlation may differ sub
stantially, some such correlations existed from job to job and from place to
place within job. Dr. Hunter was unsure of the degree to which job content
would have to change before there would be a zero correlation. He testified
that the Department could safely end its test validation program for any job
category in which there were two studies of adequate sample size, which found
significant nonzero correlations for the sane job, where there was no signifi
cant difference between the correlations found in the two studies. (Tr. 2973-
75, 2998-3001) . The district court accepted this testimony as establishing
that TTthe validity of tests is broadly generalizable across jobs, geographical
locations and applicant populations." (R. 2157, App. 122).
Dr. Hunter testified that his research on "power" had led him to the
conclusion that small sample sizes created as much as a 95% probability that
an observed difference might not be found to be statistically significant when
it was in fact a real difference, and not the product of chance. The larger
the size of the sample, the greater the likelihood that the observed difference
will turn out to be significant. (Tr. 2891-93; 29M-8-55) .
The district court found that the tests challenged here were fair, and
that the changes in aptitudes and cutting scores from one test validation effor'
to another for the same jobs did not indicate invalidity of the tests. (R.
2158, 2160, App. 122-23, 12H). Dr. Hunter testified that a test should be
considered fair if there is no statistically significant difference in the
correlations of test scores and performance achieved by whites and those a-
chieved by blacks, and testified that GATB test results should not be considerec
unstable unless there are statistically significant differences between the
correlations found in one study and those found in another. (Tr. 29M-5-55) .
-60-
Dr. Hunter did not apply his own research on "power" to these conclusions, to
determine whether his finding of no statistically significant differences was
simply a fluke stemming from small sample sizes. (Tr. 3069-7.
Dr. Hunter testified that the 1,100 sets of data, or hundreds and hun
dreds of studies, or literally thousands of studies, or 1,700 correlations--
as he variously described the basis for his opinion--he had examined for evi
dence whether tests worked differently for members of minority groups than for
whites had uniformly shown that there were no differences in correlations for
blacks and for whites. (Tr. 2966, 3056, 3097, 3111). Shown a copy of plain
tiffs' exhibit 193, which indicates that the S-282R Nurse Aide test excluded
twice the proportion of blacks defined as "Good Students” than of whites de
fined as "Good Students", he stated that this was not an indication of racially
differential prediction in the test, but merely an indication of adverse impact
which did not call the fairness of the test into question. (Tr. 2906-08,
3120-22). He explained that blacks have a greater degree of other variables
making them good performers, which are not measured by the test. The test it
self is an imperfect predictor of performance. (Id., Tr. 2909). He did not
know whether these racial differences occurred because of genetic or environ
mental factors. (Tr. 2899-95). Based on his research, Dr. Hunter testified
that there was no longer any need for the provisions of the EEOC Guidelines
requiring separate validation studies on each minority group for which the
test is to be used. (Tr. 3097). However, in the course of defending another
point, he inconsistently testified that many studies had been published finding
that tests were valid for whites but not valid for blacks, and that such stud
ies had been published even after issuance of the EEOC Guidelines. (Tr. 3117-
18) .
The Department of Labor publishes technical reports when it believes it
has successfully shown a test to be valid. Mr. Campbell testified that the
-61-
Department does not publish a report when the study fails to result in a find
ing of validity. (Tr. 2614-15). Dr. Hunter’s attention was called to this
testimony, and he was asked whether the accuracy of his findings was dependent
upon the question whether the reviews of studies he examined were representa
tive of all of the validation studies which had been done. He testified that
it would make little difference to his findings if he had seen the results of
a much greater proportion of successful studies than of unsuccessful studies,
because "the bulk of unsuccessful studies” would have involved very small
samples. (Tr. 3112-16). This was the conclusion he was supposed to have been
checking.
The district court found that there was no foundation for the allegation
that the use of specific rating scales would reduce rater bias, and relied on
Dr. Hunter for that point. (R. 2157, App. 121). Dr. Hunter stated that he
thought specific rating scales were not superior to generalized rating scales,
but stated that the research on which he relied had not examined the possible
effect of specific rating scales on rater bias. He had not studied this issue.
(Tr. 2934-) . While the district court found that racial bias by raters had not
been demonstrated to exist in the validation reports at issue or as a general
case, (R. 2156, App. 120), Dr. Hunter testified that the graph he drew at the
bottom of Federal defendants’ exhibit 63, indicating the patterns of relation
ships of test scores and criteria of performance in the data he had examined,
was consistent with a pattern of blacks receiving lower supervisory ratings
than whites because of subjective racial stereotypes by the raters. (Tr. 3122-
24) .
The district court found that it was well established that restriction
of range of the research sample "produces an underestimation of the relation
ship found in the incumbent population from which the sanple was drawn."
(R. 2158, App. 122). There is no disagreement in the record as to the truth
-62-
of this proposition in the abstract. However, it became clear in extended
examination of the experts, in part by each other, that this proposition is
true only if the research sample is in fact part of the population on which
the test is to be used, and that there was no investigation whether the exper
ienced employees in the test validation samples were in fact part of the same
population for psychometric purposes as the inexperienced applicants on whom
the tests are actually used. Dr. Hunter took the stand again to disclaim any
reliance on his earlier statements about restriction of range. (Testimony of
Dr. Hunter, Tr. 3079-87; testimony of Dr. Mann, Tr. 3139— 9-9; testimony of Dr.
Hunter, Tr. 3152).
The district court found that the tests in question here "evidence a
high degree of utility." (R. 2160, App. 129-25). Dr. Hunter's calculations
of utility assumed that employers could not do much better than random selec
tion unless they used a test or educational requirement. (Tr. 2923-2M-) . When
pressed on cross-examination, Dr. Hunter admitted that one could not reach a
conclusion about the extent of the utility of a test unless one knew how mean
ingful the distinction is between "good performance" and "poor performance"
as measured by the test, and admitted that he did not have that data for the
tests in issue. (Tr. 3010-11).
7. The Named Plaintiffs and the Class Member Witnesses
The district court found that there was no discrimination against the
named plaintiffs or against.the class member witnesses because they could not
personally cite the referral of any white or male who was less qualified than
they, or who was similarly qualified, to any job which they believed they
could have performed. (R. 2117-18, App. 85-86). This finding may have
been premised on the district court's further holding that plaintiffs had not
proven classwide discrimination.
-63-
Treating the claims of plaintiffs and of class members as disparate
treatment claims, they have established that they applied, that referrals were
being made at the times of their applications and continued to be made there
after, and that they were not referred to the more desirable types of jobs
then available. The defendants did not introduce any evidence of a nondis-
criminatory explanation in any of their cases. For example, plaintiff Rebecca
Gillespie testified that she had an 8th-grade education, but obtained a 10th-
grade G.E.D. equivalency certificate in 1971. She had taken the G.E.D. test
in order to help her get a job at Baxter Laboratories, and re-applied at MSES
as soon as she received her certificate. MSES told her that it had no refer
rals to Baxter at that time. (Tr. 46, 4-8-49, 68-70). Mr. Lindsey testified
that MSES was in fact making referrals to Baxter at the time of her applica
tion. (Tr. 1003-04-) . Mr. Lindsey testified that, apart from the lack of a
tenth-grade G.E.D. equivalency certificate, he did not know why any of the
named plaintiffs could not have been referred to Baxter in 1969 when their
Adult Basic Education program closed. (Tr. 951-52). Mary Boyd testified that
she applied repeatedly at MSES, but was never offered a referral. She thought
she could have done a job in which she had had no prior experience, and just
wanted a chance to show that she could do it. Although MSES never informed
her of the availability of Nurse’s Aide training, she learned about it through
her daughter and a local official in 1971--years after she had started apply
ing with MSES-- and with this knowledge was able to obtain a referral by MSES
to the training program. (Tr. 135-36, 137a-40, 160, 166-67; stipulation ex
hibit 20) . She depended on her lawyer to find out that whites received better
jobs. (Tr. 155-56). The defendants never offered any evidence explaining theii
failure to give her referrals prior to the referral to the Nurse’s Aide train
ing program. Adline Ward Brown testified that a white friend of hers, Cindy
-64-
Blount, came into the MSES office at the same time she did in 1970, and was
given a referral to Noel Industries while Ms. Brown was not given a referral.
Ms. Brown had a twelfth-grade education, and Ms. Blount had only a tenth-grade
education. (Tr. 521-22, 532-34-). Mr. Lindsey admitted that several job orders
were available when Pearlie White made her applications, that they were in the
types of work she was seeking, that white males were referred on them, and that
he did not know why she was not referred. (Tr. 1037-4-4-) . He stated that job
orders were available while Adline Brown’s applications were active, that 9
whites and 3 blacks had been referred on one, that 8 white men had been
referred on another, and that he did not know why she was not referred. (Tr.
104-4— 4-7). These are illustrative examples.
8. Evidence on Class Determination
Plaintiffs’ exhibit 150 is the transcript of a joint deposition of Mr.
Hart and Mr. Ballard taken in 1977; it was designated as evidence at the
February 27, 1978 hearing on class certification, and was ultimately received
at trial. They testified that local office managers do not have discretion to
deviate from MSES policies and procedures, follow the same policies in the
assignment of occupational codes on the basis of prior experience, and evaluate
experience in the same fashion. (Dep. Tr. 12-17, 54-55) . All local MSES
offices follow the same policies with respect to the handling of employers’
educational and experience requirements, and do not differ in their restric
tiveness when they try to negotiate educational requirements downward in the
event that too few applicants with the desired level of education are available.
(Dep. Tr. 31, 59-60) . All local offices have followed the same practices in
determining whether an employer’s stated preference for employees of a particu
lar sex was a BFOQ, and made their decisions in the same manner in which the
Cleveland office made such decisions. (Dep. Tr. 73-74-). They all follow the
-65-
same policies on testing, and on the classification and referral of applicants.
(Dep. Tr. 78-79) . Local offices commonly refer 4-,000 to 5,000 applicants a
year to jobs in areas serviced by other local offices, and the availability of
the Statewide Job Bank facilitates this movement. (Dep. Tr. 116-20).
Dr. Ireland, plaintiffs' statistician, testified at the hearing that
the computer printouts making up plaintiffs' exhibit 19 showed Statewide pat
terns in common with the patterns of the Cleveland local office. (Hearing
Tr. 42-78, 85, 88). Plaintiffs' trial exhibit 55, showing examples of educa
tional requirements serviced by MSES offices across the State, was received at
the hearing. (Hearing Tr. 123) . It shows the same types of educational re
quirements as are listed in plaintiffs’ exhibits 5 and 56. And see plaintiffs'
trial exhibits 131-135) .
Summary of Argument
Under the standards laid down by the Supreme Court, by this Court, and
by other courts of appeals, plaintiffs have established a prima facie case of
racial and sexual discrimination with respect to the manner in which MSES of
ficials decide to classify and to refer applicants. The defendants have not
produced statistically fair exhibits disproving the inferences to be drawn
from plaintiffs' statistics, and have not shown any business necessity justi
fying these results. Plaintiffs have also established that the State defend
ants' uncritical acceptance and servicing of employers' educational and exper
ience requirements, and their own use of experience and education in classify
ing and referring applicants, has a racially and sexually disproportionate
effect on members of the class. The defendants have not produced any evidence
of the business necessity of these practices. The standard for establishing
that a sexual preference is a bona fide occupational qualification is narrow,
and has not been met here.
-66-
Mr. Lindsey and Mr. Aldridge had the responsibility of ensuring that
the discriminatory practices shown at trial be avoided. Although placed on
repeated notice of such problems, they failed to take any corrective steps
effectively to stop such practices. They should be held personnaly liable.
Plaintiffs have proven that the challenged tests had a racially dis
parate impact against blacks, under the standards .laid down by this Court.
The Uniform Guidelines on Employee Selection Procedures are an appropriate
standard by which to judge the legality of a test which was still being used
at the time they took effect. The tests have not been shown to be valid. In
the alternative, the district court abused its discretion by allowing the
Federal defendants to put a surprise expert witness on the stand, when the
effect was to prejudice plaintiffs.
Congress did not immunize the United States Employment Service from suit
under Title VII when it passed the 1972 Amendments to that statute, and summary
judgment was erroneously granted to the Federal defendants.
The district court erred in failing to certify a Statewide class for
the purposes of injunctive relief, and in failing to allow interventions to
broaden the representation of such a class.
ARGUMENT
A. Plaintiffs Established a Prima Facie Case of Discrimination Which Has Not
Been Rebutted
The district court followed incorrect standards in deciding that no dis-
44/
crimination had been shown. The findings of nondiscrimination are not en
titled to the protection of the "clearly erroneous" rule.
4-4-/ The lower court placed excessive reliance on provisions of the Em
ployment Security Manual describing official policies, and too little reliance
on evidence of what actually took place. It placed excessive weight on the
fact that MSES has performed some welfare functions, and treated this as evi
dence of nondiscrimination in classifications and referrals. It imposed on the
named plaintiffs and on the class member witnesses the obligation of having
(footnote continued)
-67-
Corley v. Jackson Police Dept., 566 F.2d 999, 1001-02 (5th Cir., 1978);
Rowe v. General Motors Corp., 957 F.2d 598, 356 n.15 (5th Cir., 1972). More
over, many of the district court’s findings are ultimate conclusions, rather
than the types of subsidiary findings covered by Rule 52(a), F.R.Civ.P.
Plaintiffs presented a substantial statistical case of racial and
95/
sexual discrimination. To assemble this quantum of proof by hand from the
thousands of applications and hundreds of job orders filed each year was both
extremely time-consuming and extremely expensive. The district court's re
jection of this evidence because it did not contain "all of the relevant and
available information", and its conclusion that statistics cannot present a
true picture, is a rejection of the holding of Int'l Bhd. of Teamsters v.
United States, 93.1 U.S. 329, 339-90 (1977) , that statistics are competent to
prove discrimination in employment. By definition, statistics are a means of
summarizing data so that inferences can be drawn from the data. It is not
required that every possible showing be made, but merely that a credible show
(Footnote continued from previous page)
personal knowledge, independent of the evidence of record unearthed by their
counsel, of named whites or males who were less qualified and were given bet
ter treatment. In the one instance of discrimination it found, it held that
MSES could escape liability because a third party had ceased using MSES just
before the filing of a judicial Complaint.
Reliance on the official policies is particularly misplaced in light
of Mr. Beverly’s testimony that the policies had simply existed on paper in
the early 1970’s, but that the "guard was being changed", the policies had
actually started to be applied, and that he had "the feeling that this is the
dawning of a new day." (Tr. 2319-20).
95/ The standard-deviation analyses presented in this brief were per
formed according to the manner set forth in EEOC v. United Virginia Bank,
615 F.2d 197, 151-52 (9th Cir., 1980), and Hameed v. Int'l Ass’n of Bridge
Workers, 637 F.2d 506, 513-19 (8th Cir., 1980). Vuyanich v. Republic Nat’l
Bank of Dallas, 505 F.Supp. 229, 398-99, 350, and 358 n.158 (N.D. Tex., 1980)
discussed the significance level of various standard deviations. A signifi
cance level of .05--or one chance in 20-- is equivalent to 1.96 standard
deviations. A significance level of .01 is the equivalent of 2.57 standard
deviations.
-68-
ing sufficient to raise an inference be made. Phillips v. Joint Legislative
Committee, 637 F.2d 1014, 1025 (5th Cir., 1981); Grant v. Bethlehem Steel Corp.
635 F.2d 1007, 1015 (2nd Cir., 1980) , cert, den., 49 U.S. Law Week 3926 (1981) .
The State defendants cannot merely speculate that consideration of some un
specified other factors might rebut the inference; they must present evidence
46/
so proving. The State defendants have not made the necessary showings.
Dr. Malone's analysis is not probative of nondiscrimination because it
tends to mask discrimination. Cf. James v. Stockham Valves & Fittings Co.,
559 F .2d 310, 332 (5th Cir., 1977), cert, den., 434 U.S. 1034 (1978); Swint v.
Pullman-Standard, 539 F.2d 77, 97) (5th Cir., 1976).
The BFOQ exception to the prohibition of sex discrimination in Title
VII is, as the MSES defendants were notified repeatedly beginning in 1967,
"meant to be an extremely narrow" exception. Dothard v. Rawlinson, 433 U.S.
321, 334 (1977). The party seeking to rely on this exception must establish
that "the essence of the business operation would be undermined" by failing to
allow the preference. Diaz v. Pai American World Airways, 442 F.2d 385, 388 (5t
Cir.), cert, den., 404 U.S. 950 (1971); Weeks y. Southern Bell Telephone &
Telegraph Co., 408 F.2d 228, 234 (5th Cir., 1969) (the BFOQ defense requires
more than simply "labelling a job 'strenuous'"). The State defendants' pecu
liar view that Title VII did not prohibit sex discrimination for some years * *
46/ Falcon v. General Telephone Co, of the Southwest. 626 F.2d 369,
* » l980) » vacated aad remanded on other issue, 49 U.S. Law Week
3743 (1981), opinion reinstated in relevant part, 647 F.2d 633 f5th~c7r~
!981); United States v. County of Fairfax, 629 F.2d 932, 940 (4th Cir "’l980)
In Davis v. Califano, 6̂13 F.2d 957, 964 (D.C. Cir., 1979), the court of’ap
peals held that a plaintiffs' prima facie case need not include statistical
analyses of all of the factors relevant to promotion:
The defending party, with the greater access to
statistical evidence of other relevant factors,
may utilize such evidence in its rebuttal
presentation.
-69-
after 1965 is not a defense. Johnson v. Goodyear Tire & Rubber Co., 991 F.2d
1364, 1375-78 (5th Cir., 1974).
Plaintiffs have identified a number of facially neutral practices of
the State defendants which have been shown to have a disparate racial and/or
47/
sexual impact. These practices have tended strongly to reinforce the tra
ditional racial and sexual patterns of local employment. Plaintiff Boyd
testified:
... A lot of times people, they never know what a
person can do if they never allow a chance. Because I
went over to Greenville once to see about a job and
they put me at the sewing factory, and they put me to a
pressing machine, and I ran it all day, and I had never
ran one before.
(Tr. 160). These practices deny or restrict that chance. Moreover, plaintiffs'
statistical evidence shows that the combined effect of these practices--the
State defendants' actual application of their system--has a strong racially
and sexually disparate impact against blacks and against women. Cf. Sledge v.
J.P. Stevens & Co., 585 F.2d 625, 635-36 (4th Cir., 1978) , cert. den,, 440
U.S. 981 (1979), treating the defendant's personnel system as a "practice1'
shown to have had disparate impact.
The State defendants had the burden of proving that these practices were
justified by business necessity. Griggs v. Duke Power Co., 401 U.S. 424 (1971);
United States v. Georgia Power Co., 474 F.2d 906, 911-12 (5th Cir., 1973)
(educational requirement); Parson v. Kaiser Aluminum & Chemical Corp., 575
47/ These are servicing of employers' educational aid experience re
quirements without requiring the employer to produce facts showing the business
necessity of the requirements, the State defendaits' heavy reliance on experi
ence in classifying and referring applicants, their failure to inform black
applicants about the meaning and restrictive effect of the codes to which they
are assigned,their failure to show black applicants how to use the Job Back
viewers, their failure to assign secondary codes, and their failures to make
referrals.
-70-
F .2d 1374, 1390 (5th Cir., 1978), cert, den., 441 U.S. 968 (1979) (experience
requirement); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 440-41
(5th Cir.), cert, den., 419 D.S. 1033 (1974) (the failure to advertise vacan
cies may unlawfully limit the upward mobility of blacks).
The district court's refusal to grant relief from the discrimination it
found in the State defendants' servicing of Travenol Laboratories' educational
requirement, on the ground that Travenol stopped using MSES shortly before the
filing of the judicial Complaint, was erroneous. The Court clearly had juris
diction over this practice, and was required to grant relief. Teamsters held
that such a later change by a defendant:
... could be of little comfort to the victims of the
earlier post-Act discrimination, and could not erase its
obligation to afford relief to those who suffered because
of it.
431 U.S. at 341-42. And see Parson, 575 F.2d at 1385-86; James, 559 F.2d at
325 n.18. Relieving the State defendants of all obligation to plaintiffs and
their class is particularly inappropriate because of the continuation of the
same practice with respect to other employers.
The named plaintiffs and the class member witnesses have made out claims
of discrimination in two separate ways. First, they met the four-prong
test for establishing a prima facie case under McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). At that point, the defendants had the burden
of producing admissible evidence of a legitimate, nondiscriminatory reason for
their rejections, 411 U.S. at 802-03; Texas Dept, of Community Affairs v.
Burdine, U.S. , 67 L.Ed. 2d 207, 216-17 (1981). Services provided at a
later time are not a sufficient showing, Teamsters, supra; the evidence must
speak to the time for which the claim of discrimination is made. The defend
ants have not met their burden.
-71-
Second, the plaintiffs and class member witnesses are entitled to the
benefit of a presumption that they were harmed by the classwide discrimination
shown at trial. The State defendants had the burden of rebutting this pre
sumption, and failed to meet it. Teamsters, 431 U.S. at 359-62; Sledge, 585
F.2d at 637. It was error to impose a higher burden on persons who testified.
Sledge, 585 F.2d at 638.
B. Plaintiffs Have Shown That the Challenged Tests Had Racially Disparate
Impact and the Defendants Have Not Shown That They Were Valid
The evidence of racially disparate impact of the challenged tests here
in replicates each of the five types of proof held sufficient in James, 559
F .2d at 335-37, and exceeds them. If the evidence of disparate impact is con
spicuous, plaintiffs "are not required to exhaust every possible source of
evidence". Dothard v. Rawlinson, 433 U.S. at 33.1. Plaintiffs are not required
to prove disparate impact "with complete mathematical certainty." Vulcan
Society of N.Y.C. Fire Dept, v. Civil Service Comm'n, 490 F.2d 387, 393 (2nd
Cir., 1973). Continuing, Judge Friendly quoted Justice Holmes: "Certainty
generally is illusion, and repose is not the destiny of man." (Footnote
omitted). Cf. Vuyanich, 505 F. Supp. at 355-56, noting that imposing onerous
standards for proof of disparate impact would "effectively eviscerate the
’business purpose' requirement first set forth in Griggs".
In evaluating the evidence on test validation, the slipshod nature of
the Department's work counts heavily against it. Vulcan Society, 490 F.2d
at 395-96. The fact that the Department relaxed its standards during the
period of its minority re-validation program is particularly troubling. So,
too, are the Department's unexplained decision to jettison a great deal of the
data available to it for the Nurse's Aide re-validation effort, and its un
explained decision to present no evidence concerning the result of running the
old Nurse's Aide and LPN tests on data for the minority sub-sample it obtained
-72-
in the re-validation effort. The importance of the questions at stake, and
the fact that Mr. Hawk had had time to discover the answers before returning
to the stand, makes it difficult to avoid the conclusion that production of
48/
this information would have been harmful to the Department's case.
In evaluating the evidence on validation, this Court should consider
not only the standards of the EEOC Guidelines, but also those of the Uniform
Guidelines on Employee Selection Procedures, 29 C.F.R. §§ 1607.1 ejt seq. The
trial court upheld the Department’s objection to use of the 1978 Uniform Guide
lines at trial, on the basis that the validation studies in question had pre
dated the Guidelines. (Tr. 1598-99, 1646-47, 2641-45). Indeed, the Federal
defendants even objected, unsuccessfully, to consideration of the EEOC Guide
lines at one point. (Tr. 2652) . This Court applied the 1978 Uniform Guidelines
to studies performed during the period 1970-75 in Ensley Branch, of NAACP v.
Seibels, 616 F.2d 812, 816-17, nn. 11, 12 (5th Cir.), cert, den., 66 L.Ed.2d
603 (1980) .
Dr. Hunter, whose theories are more novel than the Uniform Guidelines,
should have been barred from testifying, and his testimony should not be con
sidered by this Court. In Shelak v. White Motor Co., 581 F.2d 1155, 1159-60
(5th Cir., 1978), this Court held that the trial court abused its discretion
by permitting a "trial by ambush" which deprived the opposing party of an
48/ Geller v. Markham, 635 F.2d 1027, 1033 (2nd Cir., 1980) ("A trial
court is best able ... to draw inferences from different parties' failure to
include relevant statistics that are available to them ... .") ; Interstate
Circuit v. United -States, 305 U.S. 208, 226 (1939) ("The production of weak
evidence when strong is available can lead only to the conclusion that the
strong would have been adverse. ... Silence then becomes evidence of the most
convincing character."); Ward v. Apprice. 6 Mod. 265 (Q.B., 1705) (" ... [i] f
very slender evidence be given against him, then, if he will not produce his
books, it brings a great slur upon his cause.").; 2 Wigmore, A Treatise on the
Anglo-American System of Evidence §291 at 187 (3rd ed. , 1940)";' 2 Conrad, Modern
Trial Evidence §960 at 169 (1956).
-73-
opportunity to prepare adequately for the trial. While plaintiffs believe
that the present reocrd requires reversal on the issues of test validation,
this Court may not agree. If so, this demonstrates the prejudice to plaintiffs
of allowing Dr. Hunter to testify; it is hard to engage in the most effective
possible cross-examination if the witness can retreat into claims of thousands
of studies whenever pressed, and counsel has no idea what difficulties there
j+9/
may be for the witness in the data on which he relied.
The lack of any evidence of a study of test fairness for the S-28 Table
Worker test, the S-282 Nurse Aide test in use from 1971 to 1976, and the LPN
test in use from 1971 to 1976, is a serious defect. EEOC Guidelines, 29 C.F.R.
§§1607.9-(a) , 1607.5(b)(5) (1972); Uniform Guidelines, 29 C.F.R. §1607.19 (b) (8)
(1980) ; American Psychological Association, Standards for Educational & Psycho
logical Tests (1974), plaintiffs’ exhibit 172, §E9 at pp. 43-44. The Supreme
Court emphasized the importance of such a study in Albemarle Paper Co. v.
Moody, 422 U.S. 405, 435 (1975), and this Court considered the absence of such
a study to be an important factor in rejecting validation studies in United
States v. Georgia Power Co., 474 F.2d 906, 913-14, 916 (5th Cir., 1973), and
United States v. Jacksonville Terminal Co., 451 F.2d 418, 455-56 (5th Cir.,
1971) , cert. den., 406 U.S. 906 (1972) . Accord, United States v. City of
Chicago, 549 F.2d 415, 430 (7th Cir.), cert, den. , 434 U.S. 875 (1977) (find
ing a correlation for whites but none for blacks); Rogers v. Int’l Paper Co.,
510 F.2d 1340, 1350 (8th Cir.), vacated on other grounds, 423 U.S. 809 (1975),
modified in other respects, 526 F.2d 722 (8th Cir., 1975); Boston Chapter NAACP
v. Beecher, 504 F.2d 1017, 1026 (1st Cir., 1974), cert. den., 421 U.S. 910
49/ See also Burns v. Thiokol Chemical Corp., 483 F.2d 300, 306-07
(5th CirT, 1973), noting the extent to which discovery limitations may have
hampered effective cross-examination.
-74-
(1975). Dr. Hunter’s point that "validities” are the same for all groups
must be rejected. Rogers, supra. Cf. Ensley Branch, in which this Court
noted that test scores were significantly positively correlated with
experimental ratings for firefighters with less than three years’ experience,
but significantly negatively correlated with ratings for more experienced
firefighters.
For the sake of brevity, and because the facts themselves speak so
loudly, plaintiffs will address their remaining points on validation summarily.
First, the use of supervisory rating forms open to divergent interpretation
was criticized in Albemarle Paper, 422 U.S. at 9-32-33. See EEOC Guidelines,
29 C.F.R. §1607.5 (b) (4) (1972); Uniform Guidelines, 29 C.F.R. §1607.14 (b) (2) ;
United States v. City of Chicago, 549 F.2d at 431. Second, the long line of
cases in this Court finding that the exercise of subjective judgments by whites
tends to result in blacks being disadvantaged, e,g,, James, 559 F.2d at 328-29;
Rowe, 457 F .2d at 359, demonstrate that care must be taken to guard against
rater bias. Albemarle Paper criticized the lack of such care in the study
before it, 422 U.S. at 432 n. 30. Third, Albemarle criticized validation of
the test on experienced employees when it would be applied to inexperienced
persons, 422 U.S. at 435. EEOC Guidelines, 29 C.F.R. §1607.5 (b) (1) (1972);
Uniform Guidelines, §14 (B) (4) .
C. The District Court Erred in Granting Summary Judgment for the Federal
Defendants ■ .
The district court ruled that the Equal Employment Opportunity Act of
1972, Pub.L. 92-261, 86 Stat. 103, withdrew the United States Employment Ser
vice from the coverage of Title VII. (App. 64-66). The relevant provisions,
before and after the amendments, are set out in the Brief Appendix below.
As originally enacted, §701 (c) defined the term "employment agency" as
-75-
including any "person" regularly undertaking to procure employees for an
employer, "but shall not include an agency of the United States ... except that
such term shall include the United States Employment Service and the system of
State and local employment services receiving Federal assistance." Thus, the
only mention of USES was in an exception to an exclusion from the statute’s
coverage.
In 1972, Congress struck out the entire exclusion for governmental
agencies, and defined "person" in § 701 to include governmental agencies as
well as individuals and private organizations. The net effect of the 1972
amendments to § 701 was to extend Title VII coverage to governmental activities
at all levels; there is no legislative history indicating any intent to re
strict any level of the statute's coverage. While the district court found it
significant that the United States Employment Service was no longer mentioned
by name, the same is true for State Employment Services such as MSES. Both
names were dropped in § 701(c) because they had originally been in merely
as exceptions to an exclusion.
The legislative history supports this interpretation. While the 1972
amendments were pending, the Senate Subcommittee on Labor of the Committee on
Labor and Public Welfare issued a Report, "Proposed Equal Employment Oppor
tunities Enforcement Act of 1971, S. 2515, S. 2617, and H.R. 1746, Bill Texts,
Section-by-Section Analyses, Changes in Existing Law, Comparison of Bills In
troduced" (1971). The Report is reprinted in the same Subcommittee’s Legis
lative History of the Equal Employment Opportunity Act of 1972 (1972) at 1935.
The Report stated at 105, Legislative History at 2041:
The bill would eliminate the existing law's exemption
of all levels of government from the definition of "em
ployment agency". Consequently, to the extent that "an
agency of a State or political subdivision of a State" (in
addition to "the United States Employment Service and the
-76-
System of State and local employment services receiving
Federal assistance" presently covered by the law) "regu
larly" procures employees for a covered employer or which
"regularly" procures for employees opportunities to work
for covered employers, they would be covered.) (See 2(3) .)
The district court's suggestion that § 717 of the Act provides an ex
clusive remedy is misplaced, because the claims of applicants for employment
referrals who are harmed by practices of USES are not covered by that section.
By its terms, it applies only to Federal employees and applicants for Federal
employment.
D . The District Court Erred in Failing to Certify a Statewide Class
The sole purpose for which plaintiffs sought a Statewide class was to
obtain broad injunctive relief ending, in each MSES office, any practice shown
at trial to be discriminatory and which was a result of Statewide policies or
practices. The district court evidently found this idea manageable, because
it stated at the class certification hearing that it would enter such Statewide
relief if it found such discrimination arising as a result of Statewide poli
cies, even though it was denying a Statewide class. After this Court’s de
cision in Payne v. Travenol Laboratories, 565 F.2d 895, 898, (5th Cir.), cert.
den., 939 U.S. 835 (1978), it is unclear whether a district court may enter
broad injunctive relief when no named plaintiff or class member will directly
benefit. The certification of a Statewide class is the only means of ensuring
the availability of relief.
The desirability of Statewide relief should not require extended dis
cussion. If a test is found unlawful, its use should not be continued in other
MSES offices; if the policy of accepting and servicing unvalidated educational
and experience requirements set by employers is found unlawful, procedures will
have to be developed to ensure an end to the practice, and they should be
applied throughout the State, not just in Bolivar County.
-77-
The applicants for intervention should have been allowed to intervene
as additional class representatives to support certification of the limited
Statewide class sought.
CONCLUSION
For the reasons stated above, plaintiffs respectfully pray that this
Court reverse the judgment of the district court, find that plaintiffs have
shown classwide discrimination in the respects shown, and remand the case for
the entry of relief.
Respectfully submitted,
WILLIAM L. ROBINSON
RICHARD T. SEYMOUR
LESTER GOLDNER
Lawyers’ Committee for Civil Rights
Under Law
520 Woodward Building
733 Fifteenth Street, N.W.
Washington, D.C. 20005
NAUSEAD STEWART
Lawyers' Committee for Civil Rights
Under Law
720 Milner Building
210 South Lamar Street
Jackson, Mississippi 39201
DOROTHY A. WINSTON
829- Second Avenue, North
Columbus, Mississippi 39701
Dated: July 21, 1981
-78-
A P P E N D I X
Sec. 701 of the Civil Rights Act of 1964, 78 Stat. 253-54,
provides in pertinent part:
Sec. 701. For the purposes of this title---
(a) The term "person" includes one or more
individuals, labor unions, partnerships, associations,
corporations, legal representatives, mutual companies,
joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in bankruptcy, or
receivers.
* * *
(c) The term "employment agency" means any
person regularly undertaking with or without compen
sation to procure employees for an employer or to pro
cure for employees opportunities to work for an
employer and includes an agent of such a person; but
shall not include an agency of the United States, or
an agency of a State or political subdivision of a
State, except that such term shall include the
United States Employment Service and the system of
State and local employment services receiving Federal
assistance.
Sec. 2 of the Equal Employment Opportunity Act of 1972,
Pub.L. 92-261, 86 Stat. 103, provides in pertinent part:
Sec. 2. Section 701 of the Civil Rights Act
of 1964 (78 Stat. 253; 42 U.S.C. 2000e) is amended
as follows:
Cl) In subsection (a) insert "governments,
governmental agencies, political subdivisions,"
after the word "individuals".
* * *
(3) In subsection (c) beginning with the semi
colon strike out through the word "assistance".
Sec. 703Cbl of the Civil Rights Act of 1964 provides:
Cbl It shall be an unlawful employment practice
for an employment agency to fail or refuse to refer for
employment, or otherwise to discriminate against,
any individual because of his race, color, religion,
sec, or national origin, or to classify or refer for
la -
employment any individual on the basis of his race,
color, religion, sex, or national origin.
The EEOC Guidelines on Employee Selection Procedures,
29 C.F.R. §§ 1607.1 et seq. (1972) provide;
PART 1607— GUIDELINES ON EM
PLOYEE SELECTION PROCEDURES
Sec.
1607.1 Statement of purpose.
1607.2 “Test" defined.
1607.3 Discrimination defined.
1607.4 Evidence of validity.
1607.5 Minimum standards for validation.
1607.6 Presentation of validity evidence.
1607.7 Use of other validity studies.
1607.8 Assumption of validity.
1607.9 Continued use of tests.
1607.10 Employment agencies and employ
ment services.
1607.11 Disparate treatment.
1607.12 Retesting.
1507.13 Other selection techniques.
1607.14 Affirmative action.
AUTHoamr: The provisions of this Part
1607 issued under sec. 713, 78 Stat. 265; 42
U.S.C. 2000e-12.
Source: The provisions of this Part 1607
appear at 35 F_R. 12333, Aug. 1, 1970, unless
otherwise noted.
§ 1607.1 Statement of purpose.
(a) The guidelines in this part are
based on the belief that properly vali
dated and standardized employee selec
tion procedures can significantly con
tribute to the implementation of non-
discriminatory personnel policies, as
required by title VH. It is also recognized
that professionally developed tests, when
used in conjunction with other tools of
personnel assessment and complemented
by sound programs of job design, may
significantly aid in the development and
maintenance of an efficient work force
and, indeed, aid in the utilization
and conservation of human resources
generally.
(b) An examination of charges of dis
crimination filed with the Commission
and an evaluation of the results of the
Commission’s compliance activities has
revealed a decided increase in total test
usage and a marked increase in doubtful
testing practices which, based on our
experience, tend to have discriminatory
effects. In many cases, persons have
come to rely almost exclusively on tests-
as the basis for making the decision to
hire, transfer, promote, grant member--
ship, train, refer or retain, with the
result that candidates are selected or re
jected on the basis of a single test score.
Where tests are so used, minority can
didates frequently experience dispropor
tionately high rates of rejection by fall
ing to attain score levels that have been
established as minimum standards for
qualification.
It has also become clear that in many
instances persons are using tests as the
basis for employment decisions without
evidence that they are valid predictors
of employee job performance. Where
evidence in support of presumed, rela
tionships between test performance and
job behavior is lacking, the possibility of
discrimination in the application of test
results must be recognized. A test lacking
demonstrated validity (i.e., having no
known significant relationship to job
behavior) and yielding lower scores for
classes protected by title VH may result
in the rejection of many who have neces
sary qualifications for successful work
performance.
(c) The guidelines in this part are
designed to serve as a workable set of
standards for employers, unions and
employment agencies in determining
whether their selection procedures con
form with the obligations contained in
title VH of the Civil Rights Act of 1964.
Section 703 of title VXI places an affirma
tive obligation upon employers, labor
unions, and employment agencies, as
defined in section 701 of the Act, not to
discriminate because of race, color,
religion, sex, or national origin Subsec
tion (h) of section 703 allows such per
sons “* * * 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 dis
criminate because of race, color, religion,
sex or national origin.”
§ 1607.2 “Test” defined.
For the purpose of the guidelines in
this part, the term “test” is defined as
any paper-and-pencil or performance
measure used as a basis for any employ
ment decision. The guidelines in this part
apply, for example, to ability tests which
are designed to measure eligibility for
hire, transfer, promotion, membership,
training, referral or retention. This defi
nition includes, but is not restricted to,
measures of general intelligence, mental
_ ability and learning ability; specflc intel
lectual abilities: mechanical, clerical and
other aptitudes; dexterity and coordina
tion; knowledge and proficiency; occu
pational and other interests; and atti
tudes, personality on temperament. The
term “test" includes ail formal, scored,
quantified or standardized techniques of
assessing job suitability including, in
addition to the above, specific qualifying
or disqualifying personal history or back
ground requirements, specific educa-
2a
tional or work history requirements,
scored interviews,- biographical informa
tio n blanks, interviewers’ rating scales,
scored application forms, etc.
§ 1607.3 Discrimination defined.
The use of any test which adversely
affects hiring, promotion, transfer or
any other employment or membership
opportunity of classes protected by title
VH constitutes discrimination unless:,
(a) the test has been validated, and evi
dences a high degree of utility as here
inafter described, and (b) the person
giving or acting upon the residts of the
particular test can demonstrate that al
ternative suitable hiring, transfer or
promotion procedures are unavailable
for his use.
§ 1607.4 Evidence of validity.
(a) Each person using tests to select
from among candidates for a position or
for membership shall have available for
inspection evidence that the tests are
being used in a manner which does not
violate § 1607.3. Such evidence shall be
examined for indications of possible
discrimination, such as instances of
higher rejection rates for minority can
didates than nonminority candidates.
Furthermore, where technically fea
sible, a test should be validated for each
minority group with which it is used;
that is, any differential rejection rates
that may exist, based on a test, must be
relevant to performance on the jobs in
question.
(b) The term ‘'technically feasible"
as used in these guidelines means having
or obtaining a sufficient number of mi
nority individuals to achieve findings of
statistical and practical significance, the
opportunity to obtain unbiased job per
formance criteria, etc. It is the responsi
bility of the person claiming absence of
technical feasibility to positively demon
strate evidence of this absence.
(c) Evidence of a test's validity should
consist of empirical data demonstrating
that the test is predictive of or signifi
cantly correlated with important ele
ments of work behavior which comprise
or are relevant to the job or jobs for
which candidates are being evaluated.
(1) If job progression structures and
seniority provisions are so established
that new employees will probably, within
a reasonable period of time and in a
great majority of cases, progress to a
higher level, it may be considered that
candidates are being evaluated for jobs
at that higher level. However, where job
progression is not so nearly automatic,
or the time span is such that higher
level jobs or employees’ potential may
be expected to change in significant
ways, it shall be considered that candi
dates are being evaluated for a job at
or near the entry level. This point is
made to underscore the principle that
attainment of or performance at a
higher level job is a relevant criterion
in validating employment tests only
when there is a high probability that
persons employed will in fact attain
that higher level job within a reasonable
period of time.
(2) Where a test is to be used in dif
ferent units of a multiunit organization
and no significant differences exist be
tween units, jobs, and applicant popula
tions, evidence obtained in one unit may
suffice for the others. Similarly, where
the validation process requires the col
lection of data throughout a multiunit
organization, evidence of validity specific
to each unit may not be required. There
may also be instances where evidence of
validity is appropriately obtained from
more than one company in the same in
dustry. Both in this instance and in the
use of data collected throughout a multi-
unit organization, evidence of validity
specific to each unit may not be re
quired: Provided, That no significant
differences exist between units, jobs, and
applicant populations.
§ 1607.5 Minimum standards for vali
dation.
(a) For the purpose of satisfying the
requirements of this part, empirical evi
dence in support of a test's validity must
be based on studies employing generally
accepted procedures for determining cri
terion-related validity, such as those
described in “Standards for Educational
and Psychological Tests and Manuals"
published by American Psychological
Association, 1200 17th Street NW„
Washington, D.C. 20036. Evidence of
content or construct validity, as defined
in that publication, may also be appro
priate where criterion-related validity is
not feasible. However, evidence for con
tent or construct validity should be ac
companied by sufficient information from
job analyses to demonstrate the rele
vance of the content (in the case of job
knowledge or proficiency tests) or the
construct (in the case of. trait measures).
Evidence of content validity alone may
be acceptable for well-developed tests
that consist of suitable samples of the
essential knowledge, skills or behaviors
composing the job in question. The types
of knowledge, skills or behaviors con
templated here do not include those
which can be acquired in a brief orien
tation to the job.
(b) Although any appropriate valida
tion strategy may be used to develop
such empirical evidence, the following
minimum standards, as applicable, must
be met in the research approach and in
the presentation of results which con
stitute evidence of validity:
(1) Where a validity study is conducted
in which tests are administered to appli
cants, with criterion data collected later,
the sample of subjects must be represent
ative of the normal or typical candidate
group for the. job or jobs in question.
3a
This further assumes that the applicant
sample is representative of the minority
population available for the job or jobs in
question in the local labor market. Where
a validity study is conducted in which
tests are administered to present em
ployees. the sample must be represent
ative of the minority groups currently
included in the applicant population. If
it is not technically feasible to include
minority employees in validation studies
conducted on the present work force, the
conduct of a validation study without
minority candidates does not relieve any
person of his subsequent obligation for
validation when inclusion of minority
candidates becomes technically feasible.
(2) Tests must be administered and
scored under controlled and standardized
conditions, with proper safeguards to
protect the security of test scores and to
insure that scores do not enter into any
judgments of employee adequacy that
are to be used as criterion measures.
Copies of tests and test manuals, includ
ing instructions for administration,
scoring, and interpretation of test results,
that are privately developed and/or are
not available through normal commercial
channels must be included as a part of
the validation evidence.
(3) The work behaviors or other cri
teria of employee adequacy which the
test is intended to predict or identify
must be fully described; and. addition
ally, in the case of rating techniques, the
appraisal form(s) and instructions to
the rater(s) must be Included as a part
of the validation evidence. Such criteria
may include measures other than actual
work proficiency, such as training time,
supervisory ratings, regularity of attend
ance and tenure. Whatever criteria are
used they must represent major or
critical work behaviors as revealed by
careful job analyses.
(4) In view of the possibility of bias
inherent in subjective evaluations, su
pervisors' prejudice, as, when, as new
carefully developed, and the ratings
should be closely examined for evidence
of bias. In addition, minorities might
obtain unfairly low performance crite
rion scores for reasons other than su
pervisory rating techniques should be
employees, they have had less opportu
nity to learn job skills. The general point
is that all criteria need to be examined to
insure freedom from factors which would
unfairly depress the scores of minority
groups.
(5) Differential validity. Data must be
generated and results separately reported
for minority and nonminority groups
wherever technically feasible. Where a
minority group is sufficiently large to
constitute an identifiable factor in the
local labor market, hut validation data
have not been developed and presented
separately for that group, evidence of
satisfactory validity based on other
groups will be regarded as only provi
sional compliance with these guidelines
pending separate validation of the test
for the minority group in question. (See
§ 1607.9). A test which is differentially
valid may be used in groups for which
it is valid but not for those in which
it is not valid. In-this- regard, where a
test is valid for two groups but one group
characteristically obtains higher test
scores than th e . other without a cor
responding difference in job performance,
cutoff scores must be set so as to predict
the same probability of job success in
both groups.
(c) In assessing the utility of a test
the following considerations will be ap
plicable:
(1) The relationship between the test
and at least one relevant criterion must
be statistically significant. This ordi
narily means that the relationship should
be sufficiently high as to have a prob
ability of no more than 1 to 20 to have
occurred by chance. However, the use of
a single test as the sole selection device
will be scrutinized closely when that test
is valid against only one component of
job performance.
(2) In addition to statistical signifi
cance, the relationship between the test
and criterion should have practical sig
nificance. The magnitude of the rela
tionship needed for practical signifi
cance or usefulness is affected by sev
eral factors, inciuding:
(i) The larger the proportion of ap
plicants who are hired for or placed on
the job, the higher the relationship needs
to be in order to be practically useful.
Conversely, a relatively low relationship
may prove useful when proportionately
few job vacancies are available;
(ii) The larger the proportion of ap
plicants who become satisfactory em
ployees when not selected on the basis
of the test, the higher the relationship
needs to be between the test and a cri
terion of job success for the test to be
practically useful. Conversely, a relatively
low relationship may prove useful when
proportionately few applicants turn out
to be satisfactory;
(iii) The smaller the economic and
human risks involved in hiring an un
qualified applicant relative to the risks
entailed in rejecting a qualified appli
cant, the greater the relationship needs
to be in order to be practically useful.
Conversely, a relatively low relationship
may prove useful when the former risks
are relatively high.
§ 1607.6 Presentation of validity evi
dence.
The presentation of the results of a
validation study must include graphical
and statistical representations of the re
lationships between the test and the cri
teria, permitting Judgments of the test’s
utility in making predictions of future
work behavior. (See § 1607.5(c) concern
ing assessing utility of a test.) Average
scores for all tests and criteria must be
reported for all relevant subgroups, in
cluding minority and nonminority groups
where differential validation is required.
Whenever statistical adjustments are
4a
made in validity results for less than per
fect reliability or for restriction of score
range in the test or the criterion, or both,
the supporting evidence from the valida
tion study must be presented in detail.
Furthermore, for each test that is to be
established or continued as an opera
tional employee selection instrument, as
a result of the validation study, the
minimum acceptable cutoff (passing)
score on the test must be reported. It is
expected that each operational cutoff
score will be reasonable and consistent
with normal expectations of proficiency
within the w ort force or group on which
the study was conducted.
§ 1 607 .7 Use o f other validity studies.
In cases where the validity of a test
cannot be determined pursuant to
§ 1607.4 and § 1607.5- (e.g., the number of
subjects is less than that required for a
technically adequate validation study, or
an appropriate criterion measure cannot
be developed), evidence from validity
studies conducted in other organizations,
such as that reported in test manuals and
professional literature, may be consid
ered acceptable when: (a) The studies
pertain to jobs which are comparable
(Le., have basically the same task ele
ments) , and (b) there are no major dif
ferences in contextual variables or
sample composition which are likely to
significantly affect validity. Any person
citing evidence from other validity
studies as evidence of test validity for his
own jobs must substantiate in detail job
comparability and must demonstrate the
absence of contextual or sample differ
ences cited in paragraphs (a) and (b) of
this section.
§ 1607.8 Assumption of validity.
(a) Under no circumstances will the
general reputation of a test, its author
or its publisher, or casual reports of test
utility be accepted in lieu of evidence of
validity. Specifically ruled out are: as
sumptions of validity based on test names
or descriptive labels; all forms of pro
motional literature: data bearing on the
frequency of a test's usage; testimonial
statements of sellers, users, or consul
tants; and other nonempirical or anec
dotal accounts of testing practices or
testing outcomes.
(b) Although professional supervision
of testing activities may help greatly to
insure technically sound and nondis-
criminatory test usage, such involvement
alone shall not be regarded as constitut
ing satisfactory evidence of test validity.
§ 1607.9 Continued use o f tests.
Under certain conditions, a person may
be permitted to continue the use of a
test which is not at the moment fully
supported by the required evidence of
validity. If, for example, determination
of criterion-related validity In a specific
setting is practicable and required but
not yet obtained, the use of the test may
continue: Provided: (a) The person can
cite substantial evidence of validity as
described in § 1607.7 (a) and (b ); and
(b) he has In progress validation pro
cedures which are designed to produce.
within a reasonable time, the additional
data required. It is expected also that the
person may have to alter or suspend test
cutoff scores so that score ranges broad
enough to permit the identification of
criterion-related validity will be obtained.
§ 1607.10 Employment agencies and
employment services.
(a) An employment service, including
private employment agencies. State em
ployment agencies, and the U.S. Training
and Employment Service, as defined in
section 701(c), shall not make applicant
or employee appraisals or referrals based
on the results obtained from any psycho
logical test or other selection standard
not validated in accordance with these
guidelines.
(D) An employment agency or sendee
which is requested by an employer or
union to devise a testing program is
required to follow the standards for test
validation as set forth in these guide
lines. An employment service is not
relieved of its obligation herein because
the test user did not request such valida
tion or has requested the use of some
lesser standard than is provided in these
guidelines.
(c) Where an employment agency or
service is requested only to administer
a testing program which has been else
where devised, the employment agency
or service shall request evidence of vali
dation, as described in the guidelines in
this part, before it administers the test
ing program and/or makes referral pur
suant to the test results. The employment
agency must furnish on request such
evidence of validation. An employment
agency or service will be expected to
refuse to administer a test where the
employer or union does not supply satis
factory evidence of validation. Reliance
by the test user on the reputation of the
test, its author, or the name of the test
shall not be deemed sufficient evidence
of validity (see § 1607.8(a)) . An employ
ment agency or service may administer
a testing program where the evidence of
validity comports with the standards
provided in § 1607.7.
§ 1607.11 Disparate treatment.
The principle of disparate or unequal
treatment must be distinguished from
the concepts of test validation. A test
or other employee selection standard—
even though validated against job per
formance in accordance with the guide
lines in this part— cannot be imposed
upon any individual or class protected
by title VH where other employees,
applicants or members have not been
subjected to that standard. Disparate
treatment, for example, occurs where
members of a minority or sex group have
been denied the same employment, pro
motion, transfer or membership oppor
tunities as have been made available to
other employees or applicants. Those
employees or applicants who have been
denied equal treatment, because of prior
discriminatory practices or policies, must
5a
at least be afforded the same opportu
nities as had existed for other employees
or applicants during the period of dis
crimination. Thus, no new test or other
employee selection standard can be im
posed upon a class of individuals pro
tected by title VH who, but for prior
discrimination, would have been granted
the opportunity to qualify under less
stringent selection standards previously
in force.
§ 1607.12 Retesting.
Employers, unions, and employment
agencies should provide an. opportunity
for retesting and reconsideration to
earlier “failure” candidates who have
availed themselves of more training or
experience. In particular, if any appli
cant or employee during the course of
an interview or other employment pro
cedure claims more education or experi
ence. that individual should be retested.
§1607.13 Other selection techniques.
Selection techniques other than tests,
as defined in 5 1607.2, may be improperly
used so as to have the effect of discrim
inating against minority groups. Such
techniques include, but are not restricted
to, unscored or casual interviews and un
scored application forms. Where there
are data suggesting employment discrim
ination, the person may be called upon to
present evidence concerning the validity
of his unscored procedures as weE as
of any tests which may be used, the
evidence of validity being of the same
types referred to in 3 § 1607.4 and 1607.5.
Data suggesting the possibility of dis
crimination exist, for example, when
there are differential' rates of applicant
rejection from various minority and
nonminority or sex groups for the same
job or group of jobs or when there are
disproportionate representations of mi.
nority and nonminority or sex groups
among present employees in different
types of jobs. If the person is unable
or unwilling to perform such validation
studies, he has the option of adjusting
employment procedures so as to elimi
nate the conditions suggestive of em
ployment discrimination.
§ 1607.14 Affirmative action.
Nothing in these guidelines shaE be
interpreted as diminishing a person's ob-
Egation under both title VH and Execu
tive Order 11246 as amended by Execu
tive Order 1^375 to undertake affirmative
action to ensure that applicants or em
ployees are treated without regard to
race, color, religion, sex, or national
origin. SpecificaEy, the use of tests which
have been validated pursuant to these
guidelines does not relieve employers,
unions or employment agencies of f-.boi-
obligations to take positive action in af
fording employment and training to
members of classes protected by title VH.
The Uniform Guidelines on Employee Selection Procedures,
29 C.F.R. §§1607.1 et seq., provide in pertinent part:
G eneral Pkenclpces-
Sncnow 1_ Statem ent o f ?M piae.—A.
Need fa r ■uitxform iiy —Issuing -agencies.
The Federal government's need far a
uniform set of principles an the ques
tion o f the iwp of tests and other selec
tion procedures has long been recog
nized. The Equal Employment Oppor
tunity Commission,, the Civil Service
Commission, the Department of
Labor, and the Department of Justice
jointly have adopted these uniform
guidelines to meet that need, and to
apply the same, principles- to the Fed
eral Government as are applied to
other employers.
* * *
C. Relation to prior guideline*.
These guidelines are based upon ap d
supersede previously issued guidelines
-on employee selection procedures.
These guidelines have been built upon
court decisions, the previously issued
guidelines of the agencies, and the
practical experience of the agencies, as
well as the standards of the psycho
logical profession. These guidelines
are intended to be consistent with ex
isting law.
TaCSHHCAIL S ta rba m s
Sec. 14. Technical standards far va-
liditg studies! The following mi ninmm
standards, as applicable, should be met
in conducting a validity study. Noth
ing in thesE guidelines is intended to
preclude the development and use of
other professionally acceptable tech
niques with respect to validation of se
lection procedures. Where it is not
technically feasible for a user to con
duct a validity study, the user has the
obligation otherwise to comply with
these guideffnes. See sections 6 and 7
above.
A. Validity studies should he based
on review of information about the
job. Any validity study should be
based upon a review of information
about the job for which the selection
procedure is to be used; The review
should include a job analysis except as
provided in section 14B(3) below with
respect to - criterion-related validity.
Any method of job analysis may be
used if it provides the information re
quired for the specific validation strat
egy used.
B. Technical standards for criterion-
related validity studies.—(1) Technical,
feasibility. Users choosmg to validate
a selection procedure by a criterion-re
lated validity strategy should deter
mine whether it is technically feasible
(as defined in section 151 to conduct
such a study in the particular employ
ment context. The determination oi
the number of persons necessary to
permit the conduct of a meaningful
criterion-related study should be made
by~the user on the basis of all relevant
information concerning the selection
■procedure, the potential sample and
the employment situation. Where ap
propriate, jobs with substantially the
same major work behaviors may be
grouped together for validity studies,
in order to obtain an adequate sample.
These guidelines do not require a user
to hire or promote persons for the
purpose of making it possible to con
duct a criterion-related study.
(2) Analysis of the job. There should
be a review of job information to de
termine measures of work behavioris)
or performance that are relevant to
the job or group of jobs in question.
These measures or criteria are rele
vant to the extent that they represent
critical or important job duties, work
behaviors or work outcomes as devel
oped from the'review of job informa
tion. The possibility of bias should be
considered both in selection of the-cri
terion measures and their application.
In view of the possibility of bias in
subjective evaluations, supervisory
rating techniques and instructions to
raters should be carefully developed.
All criterion measures and the meth
ods for gathering data need to be ex
amined for freedom from factors
which would unfairly alter scores of
members of any group. The relevance
of criteria' and their freedom from bias
axe of particular concern when there
are significant differences in measures
of job performance for different
groups.
(3) Criterion measures. Proper safe
guards should be taken to insure that
scores on selection procedures do not
enter into any judgments of employee
adequacy that are to be used as crite
rion measures. Whatever criteria are
used should represent important or
critical work behavioris) or work out
comes. Certain criteria may be used
without a full job analysis if the user
can show the importance of the crite
ria to the particular employment con
text. These criteria include but are not
limited to production rate, error rate,
tardiness, absenteeism, and length of
service. A standardized rating of over
all work performance may be used
where a study of the job shows that it
is an appropriate criterion. Where per
formance in training is used as a crite
rion. success in training should be
properly measured and the relevance
of the training should be >hown either
through a comparsion of the content
of the training program with the criti
cal or important work behavior(s) of
the job(s), or through-a demonstration
of the relationship between measures
of performance in training and meas
ures of job performance. Measures of
relative success in training include but
are not limited to instructor evalua
tions, performance samples, or tests.
Criterion measures consisting of paper
and pencil tests will be closely re
viewed for job relevance.
(4) Representativeness of the sample.
Whether the study is predictive or
concurrent, the sample subjects
should insofar as feasible be represent-
f ative of the candidates normally avail
able in the relevant labor market for
the job or group of jobs in question,
and should insofar as feasible include
the races, sexes, and ethnic groups
normally available in the relevant job
market. -In determining the represen
tativeness of the sample in a concur
rent validity study, the 'user should
take into account the extent to which
the specific knowledges or skills which
are the primary focus of the test are
those which employees learn on the-
job.
Where samples are combined or
compared, attention should be given
to see that such samples are compara
ble in terms of the actual job they per
form, the length of time on the job
where time on the job is likely to
affect performance, and other relevant
factors likely to affect validity differ
ences; or that these factors are includ
ed in the design of the study and their
effects identified.
(5) Statistical relationships. The
degree of relationship between selec
tion procedure scores and criterion
measures should be examined and
computed, using professionally accept
able statistical procedures. Generally,
a selection procedure is considered re
lated to the criterion, for the purposes
of these guidelines, when the relation
ship between performance on the pro
cedure and performance on the crite
rion measure is statistically significant
at the- 0.05 level of significance, which
means that it is sufficiently high as to
have a probability of no more than
one (1) in twenty (20) to have occurred
by chance. Absence of a statistically
significant relationship between a se
lection procedure and job performance
should not necessarily discourage
7a
other investigations of the validity of
that selection procedure.
(6) Operational use of selection pro
cedures. Users should evaluate each se
lection procedure to assure that it is
appropriate for operational use, in
cluding establishment of cutoff scores
or rank ordering. Generally, if other
factors reman the same, the greater
the magnitude of the relationship
(e.g„ coorelation coefficent) between
performance on a selection procedure
and one or more criteria of perform
ance on the job, and the greater the
importance and number of aspects of
job. performance covered by the crite
ria, the more likely it is that the pro
cedure will be appropriate for use. Re
liance upon a selection procedure
which is significantly related to a cri-.
terion. measure, but which is based
upon a study involving a large number
of subjects and has a low correlation
coefficient will be subject to close
review if it has a large adverse impact.
Sole reliance upon a single selection
instrument which is related to only
one of many job duties or aspects of
job performance will also be subject to
close review. The appropriateness of a
selection procedure is best evaluated
in each particular situation and there
are no minimum correlation coeffi
cients applicable to all employment
situations. IrT determining whether a
selection procedure is appropriate for
operational use the following consider
ations should also be taken into ac
count:'The degree of adverse impact of
the procedure, the availability of
other selection procedures of greater
or substantially equal validity.
(7) Overstatement of validity find
ings. Users should avoid reliance upon
techniques which tend to overestimate
validity findings as a result of capital
ization on chance unless an appropri
ate safeguard is taken. Reliance upon
a few selection procedures or criteria
of successful job performance when
many selection procedures or criteria
of performance have been studied, or
the use of optimal statistical weights
for selection procedures computed in
one sample, are techniques which tend
to inflate validity estimates as a result
of chance. Use of a large sample is one
safeguard: cross-validation is another.
(8) Fairness. This section generally
nails for studies of unfairness where
technically feasible. The concept of
fairness or unfairness of selection pro
cedures is a developing concept. In ad
dition, fairness studies generally re
quire substantial numbers of employ
ees in the job or group of jobs being
studied. For these reasons, the Federal
enforcement agencies recognize that
the obligation to conduct studies of
fairness imposed by the guidelines
generally will be upon users or groups
of users with a large number of per
sons in a a job class, or test developers;
and that small users, utilizing their
own selection procedures"Will general
ly not be obligated, to conduct such
studies because it will be technically
infeasible for them to do so.
(a) Unfairness defined. When mem
bers of one race, sex, or ethnic group
characteristically obtain lower scores
on a selection, procedure than mem
bers of another group, and the differ
ences in scores are not reflected in dif
ferences in a measure of job perform
ance, use of the selection procedure
may' unfairly deny opportunities to
members of the group that obtains the
lower scores.
(b) Investigation of fairness. Where
a selection procedure results in an ad
verse impact on a race, sex, o r ethnic
group identified in accordance with
the classifications set forth in section
4 above and that group is a significant
factor in the relevant labor market,
the user generally should investigate
the possible existence of unfairness
for that group if it is' technically feasi
ble to do so. The greater the severity
of the adverse impact on a group, the
greater the need to investigate the.
possible existence of unfairness.
Where the weight of evidence from
other studies shows that the selection
procedure predicts fairly for the group
in question and for the same or similar
jobs, such evidence may be relied on in
connection with the selection proce
dure at issue.
•(c) General considerations in fair
ness investigations. Users conducting
a study of fairness should review the
A.F.A. Standards regarding investiga
tion of possible bias in testing. An in
vestigation of fairness of a selection
procedure depends on both evidence of
validity and the manner in which the
selection procedure is to be used in a
particular employment context. Fair
ness of a selection procedure cannot
necessarily be specified- in advance
without investigating these factors. In
vestigation of fairness of a selection
procedure in samples where the range
of scores on selection procedures or
criterion measures is severely restrict
ed for any subgroup sample (as com
pared to other subgroup samples) may
produce misleading evidence of unfair
ness. That factor should accordingly
be taken into account in conducting
such studies and before reliance is
placed on the results.
(d) When unfairness is shown. If un
fairness is demonstrated through a
showing that members of a particular
group perform better or poorer on the
job than their scores on the selection
procedure would indicate through
comparison with how members of
other groups perform, the user may
either revise or replace the selection
instrument in accordance with these
guidelines, or may continue to use the
selection instrument operationally
with appropriate revisions in its use to
assure compatibility between the prob
ability of successful job performance
and the probability of being selected.
(e) Technical feasibility o f fairness
studies: In addition to the general con
ditions needed for technical feasibility
for the conduct erf a criterion-related
study (see section 18, below) an inves- -
tigation of fairness requires the fol
lowing:
v'“d3 An adequate sample of persons in
each group available for the study to
achieve findings of statistical signifi
cance. Guidelines do notTequire a user
to hire or promote persona on the
basis of group classifications for the
purpose of making ft possible to con
duct a study of fairness; but the user
"has the obligation otherwise to comply
with these guidelines.
CiD The samples for each group
should be comparable in terms of the
actual job they perform, length of
time on the job where time on the job
is likely to affect performance, and
other relevant factors likely to affect
validity differences; or such factors
should be included in the design-of the
study and their effects identified.
(f) Continued use o f selection proce
dures when fainness studies not feasi
ble. If a study of fairness .should other
wise be performed, but is not techni
cally feasible, a selection procedure
may be used which has otherwise met.
the validity standards of these guide
lines, unless the teehiacsl infeashtiity
resulted from discraatnanory employ
ment practices which are demonstrat
ed by facts other than past failure to-
conforrH with requirements for valida
tion of selection procedures. However,
when it becomes technically feaahie
for the user to perform aatady of fair
ness and such a study is otherwise
ra-i>pri far. the user should conduct the
study of'fairness.
8a