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T A B L E  O F  C O N T E N T S  

T A B L E  O F  A U T H O R I T I E S .....................................

Page  

___ ii

i

A R G U M E N T S

I. C o n tra ry  to  the C on ten tion  in P oin ts I and I V  o f  
Respondent’s Brief, the Facial N eutrality R equire­
m ent o f Griggs vs. Duke Power Company D oes N ot  
E levate Form O ver Substance by Restricting D ispar­
ate Im pact Proof to Only “O bjective” P ractices ....................... 1

II. This Court Clearly H eld in Connecticut vs. Teal That
the Legislative H istory o f the 1972 A m endm ents to 
T itle  V I I  R ecognized and E n d orsed  A pplication  o f 
the D isp arate Im pact T h eory  to E m p loy m en t S y s ­
tem s with Discrim inatory E ffe c ts .....................................................  7

III . The Guidelines o f the United States Equal E m ploy­
m en t O p p o rtu n ity  C om m ission  W h ich  P ertain  to  
Em ploym ent Selection Procedures H ave Been C on­
strued to A pply and H ave Applied D isparate Im pact 
A n a lysis to S u b jective  Selection  P rocedu res, C o n ­
trary to the Statem ents in Sections II I , IV  and V  o f  
R espondent’s B rief.......................................................................................  9

C O N C L U S IO N 20



T A B L E  O F  A U T H O R I T IE S

Case PaSe

Aguilera vs. Conk Count]) Police and Corrections Merit
Board, 760 F.2d 844 (7th Cir. 1985).............................................................  17

Albemarle Paper Co. vs. Moody, 422 U .S . 405, 95 S .C t.
2362, 45 L .E (i.2 d  280 (1975).............................................................................. 15

City o f  Los Angeles vs. Manhart, 435 U .S . 702, 98 S .C t.
1370, 55 L .E d . 2d 657 (1 9 7 8 )............................................................................  4

Connecticut vs. Teal, 457 U .S . 440, 102 S .C t. 2525,
73 L .E d .2d 1 3 0 (1 9 8 2 )................................................................................ 5, 7, 8

Davis vs. City of Dallas, 111 F.2<1 205 (5th Cir. 1 9 8 5 ) ......................... 17
Diaz vs. Pan American World Airways, 442 F.2d 385

(5th Cir. 1 9 7 1 ) ..........................................................................................................  4
Dot hard vs. Ilawlinson, 433 U .S . 321, 97 S .C t . 2720,

53 L .E d .2d 786 (1 9 7 7 )..........................................................................................  4

HBOC vs. Rath Packing Co., 787 F. 2d 318 (8th Cir. 1 9 8 6 )............... 19

Pranks vs. Bowman Tran spoliation Co., 424 U .S . 747,
96 S. C t. 1251, 47 L .E d .2 d  444 (1 9 7 6 ).......................................................  «

Furuco Construction Corp. vs. Waters, 438 U .S . 567,
98 S .C t . 2943, 57 L .E d .2 d  957 (1 9 7 8 ) .......................................................  5

Gillespie vs. State o f  Wisconsin, 771 F .2d 1035
(7th Cir. 1 9 8 5 ) ............................................................................................................ I 7

Griggs vs Duke Power Compani), 401 U .S . 424,
9'1' s .C t .  849. 28 L .E d .2d 15 8 (1 9 7 1 )............................... 1, 2 -3 , 5 , 6 , 11

New York City 'I'mnsit Authority vs. Beazer, 440 U .S . 568,
99 S .C t . 1355, 59 L .E d .2 d  587 (1979).......................................................... 18

Smith vs. Olin Chemical Cor))., 555 F.2d 1283 
(5th Cir. 1 9 7 7 ) ........................................................................................................... 17

Teamsters vs. United States, 431 U .S . 324, 97 S .C t . 1843,
52 L .E d .2d 396 (1 9 7 7 )......................................................................................3 , 8

Yulias vs. Libbey-Owens-Ford Company, 562 F .2d 496  
(7th Cir. 1 9 7 7 ) ..........................................................................................................  17

Zaliorik vs. Cornell University, 729 F.2d 85 (2nd Cir. 1 9 8 4 )........... 17
Ziman vs. U.S.P.S., N o. 01842595 (July 23, 1 9 86 ).................................  18

ii T A B L E  O F  A U T H O R I T IE S  (Continued) 

Other Authorities

in

Page

Equal E m ploym ent O pportunity Com m ission, Uniform  
Guidelines on Em ployee Selection Procedures, 43 Fed.
R eg . 38295 (1978) (codified at 29 C .F .R . secs. 1607.1

et s e q .) .................................................................................................................... 1®

U .S . Equal Em ploym ent O pportunity Com m ission,
U niform  Guidelines on Em ployee Selection Procedures: 
Interpretation and Clarification,
44 Fed. R eg . 11996 (1 9 7 9 ) ..........................................................................12> 13

A rvey, Unfair Discrimination in the Employment 
Interview.' Legal and Psychological Aspects,
86 Psychological Bull. 736 (1 9 7 9 )................................................................... 16

A rv e y  & Cam pion, The Employment Interview: A  
Summary and Review oj Recent Research, 35 Personnel 
Psychology 281 (1982)..........................................................................................  16

Bartholet, Application o f  Title VII to Jobs in High Places,
95 Harv. L . Rev. 9 4 5 (1 9 8 2 ) ..............................................................................  16

Curry, A  Common-Sense Management Approach to 
Employee Selection and EEO Compliance fo r  the 
Smaller Employer, 26 Personnel A dm in. 35 (1 98 1)......................... 17

D avey, Personnel Testing and the Search fo r  Alternatives,
13 Pub. Personnel M gm t. J . 361 (1 9 8 4 ) ................................................... I 7

D overspike, B arrett & Alexander, The Feasibility o f  
Traditional Validation Procedures fo r  Demonstrating 
Job-Relatedness, 9 Law  & Psychology Rev. 35 (1 9 8 5 ) ...................15

Gatew ood & Ledvinka, Selection Interviewing and EEO:
Mandate fo r  Objectivity, 24 Personnel Adm in. 51 (1 9 7 9 ) ............. 17

E . Ghiselli, Theory o f  Psychological Measurement (1 9 6 4 ) ............... 15
Ghiselli, The Validity o f a Personnel Interview,

19 Personnel Psychology 389 (1 96 6)........................................................... 16
Gwartney, A sher, H aw orth & H aw orth, Statistics, the Law 

and Title VII:  A n Econom ist’s View, 54 N otre Dam e  
Law. 633 (1 9 7 9 )............................................................................................ 14



T A B L E  O F  A U T H O R I T IE S  (Continued)
Page

H olm es, What’s Ahead fo r  Personnel Professionals in the 
'80s?, 25 Personnel Adm in. 33 (1 9 8 0 ) .......................................................  17

K raiger & Ford, A Meta-Analysis o f  Ratee Race Effects in 
Performance Ratings, 70 J . Applied Psychology 56 
(1985)............................................................................................................................... 16

Landy & Farr, Performance Rating, 87 Psychological 
Bull. 72 (1 9 8 0 ) ........................................................................................................... 16

A . O uterbridge, Personnel R es. and Dev. C tr ., O P M ,
TM-79-18, A Survey o f  Test Validation Study Costs
(A u g. 1 9 7 9 ) ................................................................................................................  14

Sackett, A  Critical Look at Some Common Sense Beliefs 
About Assessment Centers, 11 Pub. Personnel M gm t.
J. 140 (1982)................................................................................................................  17

Schanie & Holley, A n Interpretive Review o f  the Federal 
Uniform Guidelines on Employee Selection Procedures,
25 Personnel Adm in. 44 (1 9 8 0 ) ...................................................................... 17

Schm idt, H unter & Pearlm an, Validity Generalization 
Results fo r  Tests Used to Predict Job Proficiency and 
Training Success in Clerical Occupations, 65 J . Applied  
Psychology 373 (1980)..........................................................................................  16

iv 1

ARGUMENTS

I. Contrary to the Contention in Points 1 and IV  of 
Respondent’s Brief, the Facial Neutrality Requirement 
of Griggs vs. Duke Power Company Does Not Elevate 
Form Over Substance by Restricting Disparate Impact 
Proof to Only “ Objective” Practices.

The Respondent Fort Worth Bank & Trust’s system of 
hiring and assigning employees to positions within the 
Bank was based solely on the subjective evaluations of 
its supervisors, who were given no standards either in 
writing or orally upon which to base their determina­
tions.1 (J.A. 161-81). The Bank’s system for setting com­
pensation was based on yearly evaluations prepared on 
the anniversary of each employee’s date of hire and, 
though including written standards supposedly profes­
sionally developed, was nevertheless based on the sub­
jective evaluation of the Bank’s supervisors. (J.A. 52-62, 
125-29, 194-95). The same supervisors who determined 
assignments prepared the yearly evaluations used to 
compute compensation, and upper management 
routinely approved these evaluations. (J.A. 58, 66-75, 
125-29).
'Respondent and its amici struggled to carve up, and confine their argument 
to only one indistinguishable piece of the strikingly uniform practice by 
which the Bank-whether through hiring, promotion, transfer, or demotion 
-fills  its vacant positions. The record in this case reveals the striking uni­
formity of the practice: “The evidence at trial demonstrated that a limited 
group of white department supervisors made all hiring and promotion deci­
sions, as well as employee evaluations used to compute compensation, and 
that upper management routinely approved those decisions,” Watson vs. 
Fort Worth Bank & Trust, 798 F.2d 791, 796 (5th Cir. 1986), and accordingly, 
the question this Court has chosen to review is whether “ the racially 
adverse impact of an employer’s practice of simply committing employment 
decisions to the unchecked discretion of a white supervisory corps [is] sub­
ject to the test of Griggs vs. Duke Power Company, 401 U .S. 424 (1971).”



2

The Bank never attempted to validate its assignment 
system. Claiming that its salary evaluations were 
“ obtained from an outside consultant” the Bank never 
provided the name of the consultant or any evidence of 
validity of the standards applied. (R. II 46, 80). The 
Bank provided no statistical expert to rebut the over­
whelming evidence of its personnel system’s disparate 
impact.2

The Bank denied that it had any policy, overt or cov­
ert, that separately limited or classified black applicants 
and employees, yet claims its system should not be ana­
lyzed by disparate impact analysis because this Court’s 
decisions restrict disparate impact to “objective” selec­
tion procedures. The Bank uses subjective employment 
selection procedures and claims subjective procedures 
are by definition, intentional and for that reason lack 
facial neutrality. This Court in Griggs vs. Duke Power
2The Respondent unfairly characterizes the testimony concerning the 
strength of Petitioner’s statistical case. Providing no statistician of its own, 
the Respondent complained that Dr. Tom Marshall, Petitioner’s statisti­
cian, had taken no account of the qualification of applicants in his statistical 
study. The Respondent’s own vice-president in charge of personnel, Gary 
Shipp, however, confessed that he had in fact destroyed the records of 
these qualifications when he routinely destroyed the Bank’s employment 
applications and continued to destroy them during the course of this liti­
gation, leaving no records of employment qualifications to compare. (K .II  
45, 46). A t the class certification hearing, Mr. Shipp had testified that he 
could perceive no difference in the qualifications of blacks and whites who 
applied for employment, but he changed his testimony somewhat at trial 
and then claimed, strictly from memory, that whites overall had somewhat 
more experience. He admitted that this was an unreliable estimate. (J.A. 
345-46, R. II 43, 45-50, 230-31).

The Respondent criticizes the failure of the Petitioner’s statistical study 
to take into account the frequency of employees’ expressions of interest in 
promotion, but this too was plainly the result of the Respondent’s own 
actions. Vice-President Shipp testified that during the discovery stage of 
the litigation, he had advised the Petitioner’s counsel that the Bank’s spo­
radic recordkeeping of employees’ expressions of interest in promotion was

3

Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 
(1971) held that under Title VII “. . . practices, proce­
dures, or tests neutral on their face, and even neutral in 
terms o f intent (emphasis added), cannot be main­
tained . . .” if the practices have a disparate impact on 
minorities or women. 401 U.S. at 429. The clause “and 
even neutral in terms of intent” demonstrates that the 
Court considered practices “neutral on their face” to 
include some intentional practices. The sentence makes 
plain that the term facially neutral is not the same as 
unintentional but includes employment practices some of 
which intend to discriminate and some of which do not.

Artificial attempts to define facial neutrality by differ­
entiating between objective and subjective employment 
practices are simply not justified by this Court’s defini­
tion of disparate impact. In footnote 15 of this Court’s 
Opinion in Teamsters vs. United States, 431 U.S. 324, 97 
S.Ct. 1843, 52 L.Ed.2d 396 (1977), disparate impact is 
defined as follows:
unreliable and incomplete. (R. I ll  339). The information was thus not avail­
able to examine statistically.

Thp Rpsnondent’s claim that the Petitioner’s expert “based all of his anal­
ysis upon uie dubious ' -'■u.nption that there were always job openings 
when black applicants sought employment at the Bank,” is misleading on 
two accounts. In a pre-trial deposition, Vice-President Shipp’s testimony 
was that the Bank hired from available applications and that applications 
were kept on file for a six-month period. (Shipp depo. 10, 26, R .II 45-67). 
For the first time at trial, Mr. Shipp claimed that he only considered two 
weeks’ worth of applications. (R .II 57-66). Nevertheless, at trial, the Peti­
tioner’s expert analyzed this position. The result was a black hire rate of 
eight percent (8%) and a non-black hire rate of twenty-eight percent (28%), 
once again demonstrating a statistically significant disparate impact. (J.A. 
85-88, 280). The Petitioner also showed that the two-week cut-off testi­
mony was obviously erroneous since Mr. Shipp’s own secretary, as well as 
other employees, had been hired after applying well in advance o f the two- 
week cut-off. (R .II 64-67).



4

Claims of disparate treatment may be distin­
guished from claims that stress “disparate impact.” 
The latter involve employment practices that are 
facially neutral in their treatment of different 
groups but that in fact fall more harshly on one 
group than another and cannot be justified by busi­
ness necessity. [Citation omitted] Proof of discrimi­
natory motive, we have held, is not required under a 
disparate impact theory.

431 U.S. at 335.
That the facially neutral practices are not defined by 

intent or lack of intent is obvious from the Court’s com­
ment in Teamsters, footnote 15, “Either theory [dispar­
ate treatment or disparate impact] may, of course, be 
applied to a particular set of facts.” 431 U.S. at 335.

This Court has defined policies not facially neutral, as 
being facially or overtly discriminatory. “The Act pro­
scribes not only overt discrimination but also practices 
that are fair in. form but discriminatory in operation.” 
Griggs, 401 U.S. at 431. A facially or overtly discrimi­
natory policy is one that admits the discrimination. In 
Dothard vs. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 
L.Ed.2d 786 (1977), the employer overtly discriminated 
against women as prison guards. In Diaz vs. Pan Amer­
ican World Airways, 442 F.2d 385 (5th Cir. 1971), the 
employer overtly discriminated against men as flight 
attendants. In City of Los Angeles vs. Manhart, 435 
U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), this 
Court characterized an overtly discriminatory pension 
fund. (“On its face, this plan discriminates on the basis of 
sex. . . .” 435 U.S. at 715). A policy which is overtly dis­
criminatory and thus admits discrimination, requires the

5

same defense-that the policy in question is necessary to 
the safe and efficient operation of the business -  as one 
that is facially neutral but with a disparate impact.

Clara Watson satisfied the requirement of facial neu­
trality in her challenge to the Bank’s employment prac­
tices. The Bank’s system of allowing its supervisors 
unfettered discretion in making subjective evaluations 
that determine the hiring, assignment and compensation 
of its employees is not overtly discriminatory. The Bank 
had no explicit or stated policy of classifying blacks dif­
ferently than whites. Thus, the Bank’s system is facially 
neutral and amenable to disparate impact analysis.

Finally, Respondent argues that subjective practices 
are individualized and that Petitioner “did not identify 
any aspect of Respondent’s employment process suitable 
for testing under the Griggs model.” Brief for Respon­
dent at 34. Subjective judgments are frequently made on 
the basis of membership in groups and are not “individ­
ualized” at all. Judgments based on graduation from a 
particular school, geographic background, as well as gen­
der and race, may often form the basis for subjective 
evaluations of individuals. Disparate impact analysis 
addresses facially neutral practices which adversely 
affect a group. Clara Watson’s burden was to show the 
adverse effect of the Bank’s practices on black employ­
ees. This she did. Thus, by inference she was a victim of 
those practices. This distinction was aptly addressed by 
Justice Powell’s dissent in Connecticut vs. Teal:

It is true that the aim of Title VII is to protect indi­
viduals, not groups. But in advancing this commend­
able objective, Title VII jurisprudence has recog­
nized two distinct methods of proof. In one set of



6

cases-those involving direct proof of discriminatory 
intent-the Plaintiff seeks to establish direct, inten­
tional discrimination against him. In that type of 
case, the individual is at the forefront throughout 
the entire presentation of evidence. In disparate- 
impact cases, by contrast, the Plaintiff seeks to 
carry his burden of proof by way of inference 
[emphasis by the Court] -  by showing that an 
employer’s selection process results in the rejection 
of a disproportionate number of members of a pro­
tected group to which he belongs. From such a 
showing a fair inference then may be drawn that the 
rejected applicant, as a member of the dispropor­
tionately excluded group, was himself a victim of 
that process’ ‘“ built-in headwinds’ ” Griggs, supra 
[citation omitted]. But this method of proof-which 
actually defines disparate-impact theory under Title 
VII-invites the Plaintiff to prove discrimination by 
reference to the group rather than to the allegedly 
affected individual.

457 U.S. at 458?
Plainly, the Petitioner is entitled to have her proof 

tested by disparate impact analysis.

T h e  often cited footnote 7 in Furnco Construction Corp. vs. Waters, 438 
U.S. 567, 575 (1978) -

This case did not involve employment tests, which we dealt with in 
Griggs vs. Duke Power Company, 401 U .S . 424, 91 S .C t. 849, 28 
L.Ed.2d 158 (1971), and in Albemarle Paper Company vs. Moody, 422 
U.S. 405, 412-413, 95 S.Ct. 2362, 35 L.Ed.2d 280 (1975), or particularized 
requirements such as the height and weight specifications considered in 
Dothard vs. Rawlinson, 433 U.S. 321,329, 97 S.Ct. 2720, 53 L.Ed.2d 786 
(1977), and it was not a “pattern or practice" case like Teamsters vs. 
United States, 431 U .S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) 
[emphasis added]

-  plainly distinguished Furnco, not only from earlier cases that had 
involved standardized tests or particularized requirements, but also from 
other cases involving group-wide discriminatory patterns.

7

II. This Court Clearly Held in Connecticut vs. Teal That 
the Legislative History of the 1972 Amendments to 
Title VII Recognized and Endorsed Application of the 
Disparate Impact Theory to Employment Systems with 
Discriminatory Effects.

The Respondent, together with the Solicitor General, 
claims that the legislative history of the 1972 Amend- 
morito t „  t h i 0  v n  Jo entitled to little if any weight, 
because Congress did not “reenact” the entire statute, 
and because the Hawkins Bill, H.R. 1746, about which 
much of the legislative history was written, was not 
actually adopted, in lieu of a similar substitute bill. But 
these claims were put to rest conclusively by this Court 
in Connecticut vs. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 
L.Ed.2d 130 (1982), where the Court plainly held that the 
1972 Amendments, which extended the substantive pro­
tections of Title VII to employees of state and municipal 
governments, imprinted upon the substantive protec­
tions the 1972 legislative history which had approved the 
prior judicial establishment and applications of the dis­
parate impact theory of discrimination. The Court held:

The legislative history of the 1972 amendments to 
Title VII, 86 Stat 103-113, is relevant to this case 
because those amendments extended the protection 
of the Act to respondents here by deleting exemp­
tions for state and municipal employers. See 86 Stat 
103. That history demonstrates that Congress rec­
ognized and endorsed the disparate-impact analysis 
employed by the Court in Griggs. Both the House 
and Senate Reports cited Griggs with approval, the 
Senate Report noting:

Employment discrimination as viewed today is 
a . . . complex and pervasive phenomenon.



8

Experts familiar with the subject now generally 
describe the problem in terms of “systems” and 
“ e ffects” rather than simply intentional 
wrongs. S. Rep. No. 92-415, p. 5 (1971).

See also H.R. Rep. No. 92-238, p. 8 (1971). In addi­
tion, the section-by-section analyses of the 1972 

• amendments submitted to both houses explicitly 
stated that in any area not addressed by the amend­
ments, present case law -  which as Congress had 
already recognized included our then recent decision 
in Griggs -  was intended to continue to govern. 118 
Cong. Rec. 7166, 7564. (1972).

457 U.S. at 447 n.8.

In the course of applying to public employees the sub­
stantive protections of Title VII, the Supreme Court 
drew upon the 1972 legislative history and prior case law, 
and thus defined the substantive protections and the dis­
parate impact theory in particular, in terms of systems 
and effects.4 The same legislative history, which this 
Court therefore determined had endorsed the disparate 
impact approach as one of Title VII’s substantive protec­
tions, made no distinction at all between the objective 
and the subjective -  and in fact, contained clear refer­
ences to certain subjective practices-among the discrim­
4Respondent cites footnote 39 of this Court’s opinion in Teamsters, to sup­
port the Bank’s claim that the 1972 legislative history is not relevant to an 
understanding of Title V II. In that footnote, Justice Stewart found no fault 
with the application of the legislative history of the 1972 Amendments to 
Title VII that the majority had made in Franks vs. Bowman Transporta- 
tion Co., 424 U .S. 747, 759-64 (1976). Franks held that the legislative his­
tory of the 1972 Amendments regarding the application of present case law 
to Title VII expressed Congressional intent to adopt disparate impact anal­
ysis as determined and developed by the courts at that time. This Court has 
re-affirmed the point in Connecticut vs. Teal. See text above.

9

inatory “systems” and “effects” the statute was designed 
to eliminate:15

III. The Guidelines of the United States Equal Employ­
ment Opportunity Commission Which Pertain to 
Employment Selection Procedures Have Been Con­
strued to Apply and Have Applied Disparate Impact 
Analysis to Subjective Selection Procedures, Con­
trary to the Statements in Sections III, IV and V of 
Respondent’s Brief.

A. Section  6B o f  the U niform  G uidelines on 
Employee Selection Procedures, 29 C.F.R. sec. 
1607.6B, Addressing the Question of Validation of 
Selection Practices Which Exhibit Disparate 
Impact, Makes No Exception Based on the Objec­
tivity or Subjectivity o f the Practice.

Both the Respondent and the Solicitor General claim 
Section 6B(1) of the Uniform Guidelines on Employee 
Selection Procedures, 43 Fed. Reg. 38295 (1978) (codified 
at 29 C.F.R. sec. 1607.6B(1)) provides an exception for 
subjective procedures, eliminating the need to demon­
strate the business necessity for the procedures in the 
face of proven disparate impact. Both claim the Section 
subjects such procedures to no more than a test for dis­
parate treatrnent

Section 6B sets out what is required of the user of a 
selection procedure with disparate impact when the user 
“cannot or need not utilize the validation techniques con­
templated by these guidelines.” 29 C.F.R. sec. 1607.6B.
5See Brief for Petitioner on the Merits at 26-29, discussing the pre-1972 case 
law cited in the legislative history, which had applied disparate impact anal­
ysis to subjective employment practices.



10

SHSS«=£
u ^ W h e n t Z o i Z  UnSC° red procedures are 
cedure w hil L  ^  ,  °r unscored selection pro-

9 " * = s S S ; j

29 C.F.R. sec. 1607.6B(1) (emphasis added).

What the Respondent and the Solicitor Genera] fail to 
point out, however is thaf th0 r ,„-j v al Iai 1
the same requirements where an emnhT ^  UP e™ Ctly 
validate o b j e c t  l°
covers objective procedures and readsls follows "

Wh Z  : ef f0rT l ™ d sc°red Procedures are used
-e d V h iS a i : : dz i t  is

m m s m

29 C.F.R. sec. 1607.6B(2) (emphasis added).

11

Thus, the enforcing administrative agency has carved
out n0 j exception for subjecti J  S Z e s  but

^  b°th objective and
possTble Th T  Whe" m°re technical validation is not possible. The Respondent and Solicitor General disre
of the CS P; r llehSm and attempt t0 rework this section 

uidehnes into a requirement of disparate treat

se e r t f o T p ^ r f  The°Ry ** Cmplo«have Z r  . The ResP»n<ient and amicus would 
have the Court interpret the Guidelines' requirement
era] law’^ *  urc lle justified in “accordfence] with fed- 
mate n a- req“ lrlng an empioyer to articulate a legiti-
te„an e o f T "  ^  the empl° ^  ^

/ u tlTe emPl°y ment selection procedure 
shown to have disparate im pact PresumableThe 
employer would have the burden of proof in th," regard
certainlvn6, S "° SUPP°rt “  any prior case and is 
T n f  d Supported by th>a Court's decision in Griaas

L ' m u w m m Z vfva s ' 424' 91 s -c t - « » , »
that theBtstification for d t p ^ L t ^ f^ X "  
Section 6B may be satisfied ", bv showin^hT.u 
seiection procedure is reasonabiy r X t X e  ̂  
ments of the job or other business needs and hasbeen 
would doniln0npr,etextml fashion, as the employer 

added] “ d“n7 “  trmtment msc (emphasis
sion to (i- ’ r .  e' ,nSpiteofthe ^ w a r d  allu­sion to d.oparate t.oatment, that disparate treatment
nalysis is not appropriate where subjective employment

procedures have a group-wide disparate effect since dis
“ ^tm ent analysis requires articulation’ „7a ie^t-'
"Brief for the United States as Amicus Curiae supporting Respondent at 27.



12

imate business reason for only a particular employment 
decision, not the selection process itself. But Griggs 
required proof of business necessity of the employer to 
justify any practice having a proven disparate impact. 
There is neither authority nor logic for changing that 
burden.

Despite the Solicitor General’s attempts to claim 
otherwise in his brief, the Equal Employment Opportu­
nity Commission has clearly and consistently insisted 
that where technical validation is not possible, Section 
6B still requires proof of business necessity. Effective 
May 2, 1980, the EEOC promulgated a series of ques­
tions and answers designed to “clarify and interpret but 
not to modify” the Uniform Guidelines on Employee 
Selection Procedures that had been adopted August 25, 
1978. Question 36 of the clarification and interpretation 
clearly addressed the present issue:

The following questions and answers (36-81) 
assume that a selection procedure has an adverse 
impact and is part of a selection process that has an 
adverse impact.

36. Q. How can users justify continued use of a 
procedure on a basis other than validity?

A. Normally, the method of justifying selection 
procedures with an adverse impact and the method 
to which the Guidelines are primarily addressed, is 
validation. The method of justification of a proce­
dure by means other than validity is one to which 
the Guidelines are not addressed. See Section 6B. In 
Griggs vs. Duke Power Co., 401 U.S. 424, the 
Supreme Court indicated that the burden on the 
user was a heavy one, but that the selection proce­
dure could be used if there was a “business neces­

13

sity” for its continued use; therefore, the Federal 
agencies will consider evidence that a selection pro­
cedure is necessary for the safe and efficient opera­
tion of a business to justify continued use o f a selec­
tion procedure.

U.S. Equal Employment Opportunity Commission, Uni­
form Guidelines on Employee Selection Procedures: 
Interpretation and Clarification, 44 Fed. Reg. 11996 
(1979) (emphasis added).

Section 6B offers no solace to Respondent in its 
attempt to find an exception in the wording of the Guide­
lines. The Guidelines and the EEOC’s interpretation of 
them make no distinction between subjective and objec­
tive procedures, either in the general applicability of dis­
parate impact analysis to the procedures or in the specific 
requirement of business necessity as the only sufficient 
justification for the maintenance of employment selection 
procedures that regularly and adversely affect members 
of protected groups.

B. The Respondent Has Produced No Evidence in the 
Case at Bar even Attempting to Show Either the 
High Cost or Impossibility o f Validating the Bank’s 
Employment Practices, and No Evidence that 
Either the Cost or the Feasibility of Validation is 
Generally and Substantially Influenced by the 
Subjectivity or Objectivity of the Practices.

The Respondent has produced no evidence in this 
record to support its claim that the validation of subjec­
tive procedures is more burdensome, difficult or expen­
sive than the validation of objective procedures. Nor has 
it produced any evidence that its particular employment



14

procedures or that any other subjective procedures are 
impossible to validate.

The evaluation and balancing of the competing cost 
considerations of alternative policies are best left to the 
Congress and the administrative agencies charged with 
the enforcement of Title VII. Certainly, the record 
before this Court is devoid of any evidence as to the cost 
or impossibility of validation procedures that could jus­
tify striking new balances and discarding existing 
policies.

The authorities cited in the briefs of the Respondent 
and the Solicitor General are hardly sufficient bases for 
making a judgment of this magnitude. The cost esti­
mates presented by the Solicitor General can arguably 
apply to the validation of either subjective or objective 
employment procedures, and thus, are not responsive to 
the issue before the Court. One authority, an article, 
Gwartney, Asher, Haworth & Haworth, Statistics, the 
Law and Title VII: An Economist’s View, 54 Notre 
Dame Law. 633 (1979) cites no basis whatsoever for its 
bare assertion that a validation could cost from twenty to 
one hundred thousand dollars.7 The reasonableness of the 
costs asserted and of the elaborate validation techniques 
assumed in the Gwartney article, have been called into 
question by others,8 and the article and the Solicitor Gen­
eral altogether ignore the payoff of validation studies:
’ Another study on this point cited by the Solicitor General, A . Outerbridge, 
Personnel Res. and Dev. Ctr., OPM, TM-79-18, A Survey of Test Validation 
Study Costs, (A ug. 1979), is not in general circulation, and perhaps 
unpublished.

"Doverspike, Barrett & Alexander, The Feasibility of Traditional Valida­
tion Procedures for Demonstrating Job-Relatedness, 9 Law & Psychology 
Rev. 35 (1985).

15

While a validation study has costs associated with 
it, it is possible to calculate the payoff available to 
the organization from the use of valid selection pro­
cedures; in most cases, this payoff will be apprecia­
ble. Numerous reviews have found criterion- 
validity studies to be highly cost effective [citing 
authorities].

Doverspike, Barrett & Alexander, The Feasibility o f 
Traditional Validation Procedures for  Demonstrating 
Job-Relatedness, 9 Law & Psychology Rev. 35, 42 (1985).

The Respondent’s and its amici’s cries that validation 
of subjective employment procedures is impossible are 
also without merit. This Court lias long recognized the 
professional standards for validation promulgated by the 
American rsycno'egical Association. See, e.g., Albe­
marle Paper Co. vs. Moody, 422 U.S. 405, 95 S.Ct. 2362, 
45 L.Ed.2d 280 (1975). The amicus brief of the Associa­
tion on behalf of this Petitioner clearly attests to the 
practicality of applying its professional standards for val­
idation to subjective employment selection devices. In 
response, the Solicitor General relies upon Professor 
Edwin Ghiselli9and others to broadly proclaim:

Accordingly, commentators in the legal, industrial 
psychology, and personnel administration profes­
sions have almost uniformly stated that subjective 
selection processes do not have the “technical reli­
ability” [footnoting to Ghiselli] that is a necessary 
precondition of validation or other formal substan­
tiating method.

Brief for the United States as Amicus Curiae supporting 
Respondent at 20-21.
9E. Ghiselli, Theory of Psychological Measurement 208 (1964).



16

Two years after his book, cited by the Solicitor Gen­
eral, had been published, Professor Ghiselli published 
the results of his successful validation of a subjective 
personnel interview process, and found:

In conclusion, it can be said that the ordinary per­
sonnel interview is not necessarily invariably 
invalid, but its validity may be at least equal to, if 
not greater than, the validity of tests.

Ghiselli, The Validity of a Personnel Interview, 19 Per­
sonnel Psychology 389, 394 (1966).

Numerous studies belie the claim that subjective cri­
teria are not amenable to formal validation procedures.10 
Even the amici on behalf of the Respondent, the Ameri­
can Society for Personnel Administration, and the Inter­
national Personnel Management Association, who agree 
with Petitioner that the “objective”-“subjective” distinc­
tion is irrelevant, have themselves published consider­
able literature dealing with the application of the EEOC 
Guidelines to subjective employment practices. The offi­
cial publication of the American Society for Personnel 
Administration, Personnel Administrator, and the offi­
cial publication of the International Personnel Manage­
'°See, e.g., Brief for the American Psychological Association as Amicus Cur­

iae in support of the Petitioner; Arvey, Unfair Discrimination in the 
Employment Interview: Legal and Psychological Aspects, 86 Psychologi­
cal Bull. 736 (1979); Arvey & Campion, The Employment Interview: A 
Summary and Review of Recent Research , 35 Personnel Psychology 281 
(1982); Bartholet, Appl ication of Title VII to Jobs in High Places, 95 Harv. 
L. Rev. 945, 987-88 (1982) (and see cases cited therein); Kraiger & Ford, A 
Meta-Analysis of Ratee Race Effects in Performance Ratings, 70 J . 
Applied Psychology 56 (1985); Landy & Farr, Performance Rating, 87 
Psychological Bull. 72 (1980); and Schmidt, Hunter & Pearlman, Validity 
Generalization Results for Tests Used to Predict Job Proficiency and
Training Success in Clerical Occupations, 65 J. Applied Psychology 373 
(1980). '

17

ment Association, the Public Personnel Management 
Journal, have stressed both the necessity and the prac­
ticality of complying with the EEOC Guidelines where 
subjective employment procedures are involved.11

Nevertheless, lower courts have not infrequently 
relieved employers of the need to submit their practices, 
whether subjective or objective, to formal validation 
when it is impractical-instead finding the requisite busi­
ness necessity if only the otherwise unstructured prac­
tice is standardized and therefore reliable, Gillespie vs. 
State of Wisconsin, 771 F.2d 1035 (7th Cir. 1985), or if the 
practice is informally validated by expert testimony or 
expert public documents, Davis vs. City o f Dallas, 777 
F.2d 205 (5th Cir. 1985), or by generalizable judicial prec­
edents, Aguilera vs. Cook County Police and Correc­
tions Ment Board, 760 F.2d 844 (7th Cir. 1985); Smith vs. 
Olin Chemical Corp., 555 F.2d 1283 (5th Cir. 1977); or by 
a tradition of generations of use, Zahorik vs. Cornell 
University, 729 F.2d 85 (2nd Cir. 1984); or even by the 
plausibility of the employer’s bare argument, Yuhas vs. 
Libbey-Owens-Ford Company, 562 F.2d 496 (7th Cir. 
1977). This Court once found the requisite “manifest 
relationship to the employment in question” when the 
employer’s legitimate objectives were “ significantly
"See, e.g., Curry, A Common-Sense Management Approach to Employee 
Selection and EEO Compliance for the Smaller Employer, 26 Personnel 
Admin. 35 (1981); Davey, Personnel Testing and the Search for Alterna­
tives, 13 Pub. Personnel Mgmt. J. 361 (1984); Gatewood & Ledvinka, 
Selection Interviewing and EEO: Mandate for Objectivity, 24 Personnel 
Admin. 51 (1979); Holmes, What’s Ahead for Personnel Professionals in 
the ’80s?, 25 Personnel Admin. 33 (1980); Sackett, A Critical Look at Some 
Common Sense Beliefs about Assessment Centers, 11 Pub. Personnel 
Mgmt. J. 140 (1982); and Schanie & Holley, An Interpretive Review of the 
Federal Uniform Guidelines on Employee Selection Procedures, 25 Per­
sonnel Admin. 44 (19801



18

served b y -e v e n  if they do not require” his use of a 
racially inequitable practice. New York City Transit 
Authority vs. Beazer, 440 U.S. 568, 587 n.31 (1979). But 
the strength of proof of business necessity which ought 
to be required from an employer defending against prima 
facie evidence of disparate impact, and certainly the 
costs of proof, are not here at issue; this case involves 
only a plaintiff employee’s right to attempt to prove 
unlawful discrimination under the disparate impact 
theory.

C. Contrary to Respondent’s Argument in Section III 
of its Brief, the Equal Employment Opportunity 
Commission Has Consistently and Recently  
Applied Disparate Impact Analysis to Subjective 
Employee Processes.

The Respondent argues that the Solicitor General’s 
amicus brief and a single unpublished decision, Ziman 
vs. U.S.P.S., No. 01842595 (July 23, 1986), support its 
claim that “ a subjective selection process cannot be 
facially neutral” and thus cannot be subject to the dispar­
ate impact doctrine. Brief for Respondent at 32-33. 
Ziman vs. U.S.PS. is not a published decision of the 
Equal Employment Opportunity Commission. It is, 
rather, an appeal from an administrative decision of the 
United States Postal Service, written by a hearing offi­
cer for the Office of Review and Appeals. It makes no 
mention whatsoever of the EEOC Guidelines, interpre­
tations, or even previous EEOC decisions. It makes no 
mention of the position publicly taken and strenuously 
argued by the EEOC just months earlier, in a published 
decision of the Eighth Circuit.

19

In EEOC vs. Rath Packing Co., 787 F.2d 318 (8th Cir. 
1986), the EEOC challenged the subjective.hiring prac­
tices of Rath Packing, using disparate impact analysis. 
The challenged practices and defensive positions of Rath 
sounded very much like the practices and positions 
argued by the Respondent in the case at bar:

Rath’s office manager, Walter McFarland, was 
responsible for accepting and maintaining applica­
tions c.iiu se is in g  applicants for employment. The 
plant superintendent had the authority to overrule 
McFarland’s choice of applicants but seldom did so. 
Rath had no written or otherwise established selec­
tion guidelines and McFarland was unable to iden­
tify what information was deemed significant in 
evaluating and selecting applicants. . . .

Rath next argues that the District Court erred in 
holding that there was no business necessity for 
Rath’s subjective hiring practices. Rath had no 
established criteria for selecting employees. . . .

. . . EEOC also argues that Rath failed to estab­
lish that the subjective hiring procedures were nec­
essary or essential and that there were no alterna­
tive practices with less discriminatory effect.

. . . A fter EEOC established the disparate 
impact o f the subjective hiring practices, Rath had 
the burden of producing evidence of business neces­
sity and the burden of persuasion on that issue.

787 F.2d at 322, 327-28 (emphasis added).

Rath Packing reveals that the EEOC, less than two 
years ago, vigorously prosecuted a nearly bankrupt 
employer for its subjective hiring practices, applied the



20

disparate impact theory of proof, and prevailed. The 
EEOC and the other enforcing agencies have under­
taken no administrative action in an attempt to change in 
any way their Guidelines or interpretations of the Guide­
lines. The position they have taken in this lawsuit is for­
eign to their own Guidelines, their own decisions, and 
their own recent litigation.

CONCLUSION

The Judgment of the Court of Appeals, upholding the 
Judgment of the District Court, insofar as it prohibited 
the Petitioner from having her case analyzed under the 
disparate impact theory, should be reversed.

Respectfully submitted,

ARTBRENDER

FRANK P. COLOSI
BRENDER, CASEY & COLOSI 
930 Capital Nat’l Bank Bldg.
110 W. 7th St.
Fort Worth, Texas 76102 
817/334-0171

Attorneys for Petitioner