# Contreras v. City of Los Angeles

> Court of Appeals for the Ninth Circuit · April 9, 1981 · 656 F.2d 1267

URL: https://www.frixlaw.com/law-library/cases/8913812

## Case

- **Full name:** Oscar E. CONTRERAS, Eloy Gonzalez, Maria Gonzalez, Sam Mock, Jr., Joseph M. Pantiga and Salvador A. Zavala v. The CITY OF LOS ANGELES, a Municipal Corporation Muriel Morse, in her official capacity as General Manager of the City of Los Angeles Personnel Department
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 9, 1981
- **Citations:** 656 F.2d 1267; 25 Fair Empl. Prac. Cas. (BNA) 866; 25 Empl. Prac. Dec. (CCH) 31,728; 1981 U.S. App. LEXIS 14466
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tang
- **Judges:** Tang, Wallace
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8913812

## How later opinions describe it (automated extraction)

- finding that courts'should give EEOC guidelines great deference
- rejecting statistical significance at the 1.96 level because sample size was too small

## Opinion text

TANG, Circuit Judge,
specially concurring in part and dissenting in part.
I
I write separately for two reasons. First, although I agree with the majority that the Title VII disparate impact business necessity defense requires only that the employer “demonstrate a significant relation between the challenged selection device or criteria and the important elements of the job or training program ...,” ante, at 1277-1279, quoting Craig v. County of Los Angeles, 626 F.2d 659, 664 (9th Cir. 1980), I cannot sanction its assertion that we must “harmonize” Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979) cert. denied, 446 U.S. 928 , 100 S.Ct. 1865 , 64 L.Ed.2d 281 (1980), with our other precedents before determining which test to apply to the auditor’s examination. See ante, at 1276-1277. Until today, there was no confusion in this circuit concerning the appropriate test to apply in the business necessity defense. Second, I dissent from the majority's conclusion that the district court properly found the City’s evidence sufficient to meet its burden on the business necessity defense. See ante, at 1282-1283. Because the lower court applied the wrong legal standard at the business necessity stage of the proof process, its findings cannot be reviewed under the clearly erroneous standard. Therefore, rather than deferring to the lower court’s findings, I 'would remand the case for a reevaluation and an introduction of evidence in light of the proper legal standard.
II
The question raised in the majority opinion is whether we must first harmonize our ruling in Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979), with our other business necessity defense precedents before determining the proper test to be applied to the auditor’s examination given Gonzalez. See ante, at 1276-1277. Having closely examined our treatment of the business necessity defense, both as a member of the Blake panel and, most recently, as a member of this panel, I have concluded that Blake fully conforms to the business necessity defense articulated in de Laurier and unmistakably rejects the inconsistent language in the de Laurier dissent. Because Blake is fully consonant with de Laurier, the present attempt to “harmonize” it with our other precedents not only wastes judicial resources but imparts needless confusion into an area of the law that had previously been more than adequately clear.
A.
In de Laurier v. San Diego Unified School District, 588 F.2d 674, 678 (9th Cir. 1978), we decided that in order to rebut a prima facie case of employment discrimination under Title VII an employer must show “ ‘that the practice in question is necessary to safe and efficient job performance.’ ” Id., quoting Dothard v. Rawlinson, 433 U.S. 321 , 331 n.14, 97 S.Ct. 2720 , 2728 n.14, 53 L.Ed.2d 768 (1977). In establishing this standard, we rejected the additional requirement, proposed in Judge Hufstedler’s dissent, that the employer substantiate the nonexistence of less discriminatory alternatives. Compare de Laurier v. San Diego Unified School District, 588 F.2d at 681 , with id. at 691 (Hufstedler, J., dissenting). The de Laurier majority, consistent with the Supreme Court’s determinations in Dothard and Albemarle v. Moody, 422 U.S. 405, 425 , 95 S.Ct. 2362, 2375 , 45 L.Ed.2d 280 (1975), placed the burden .of proving less discriminatory alternatives squarely on the plaintiff. Consequently, once the defendant has rebutted the plaintiffs’ prima facie case of discriminatory impact by demonstrating that the test device or rule is “nec *1287 essary to safe and efficient job performance,” the plaintiff shoulders the burden of establishing less discriminatory alternatives to the employment practice, de Laurier v. San Diego Unified School District, 588 F.2d at 681 .
The majority’s argument that Blake departs from the de Laurier standard can be reduced to the following proposition: Although the de Laurier business necessity defense requires that an employer demonstrate that the employment practice is “ ‘necessary to safe and efficient job performance ...’”, 595 F.2d at 1376 , quoting Dothard v. Rawlinson, 433 U.S. at 332 n.14, 97 S.Ct. at 2728 n.14, both the de Laurier dissent and the Blake decision literally construe the word “necessary”, thereby erroneously requiring an absolutely necessary relationship between the employment practice and the business need. See ante, at 1276-1277. In response, I maintain that an examination of Blake and de Laurier, together with a comparison of case law from other circuits, establishes that Blake , like de Laurier, requires only reasonable necessity. Moreover, Blake , unlike the de Laurier dissent, correctly assigned the burden of proving less discriminatory alternatives to the plaintiff, thereby underscoring its consistency with de Laurier. I shall address these points seriatim.
(D
The Requirements that the Job Practice Be “Necessary”
The compatibility between the Blake and de Laurier definitions of the word “necessary” can be demonstrated by an analysis of those cases. In de Laurier, a school district’s mandatory maternity leave policy was found “ ‘necessary to safe and efficient job performance’,” 588 F.2d at 678 , quoting Dothard v. Rawlinson, 433 U.S. at 331 n.14, 97 S.Ct. at 2728 n.14, even though the court below had not phrased the standard in those precise terms. Id. at 678-79. The dissent in de Laurier disagreed with the majority assessment. In its view, the “district failed to offer evidence in specific justification of the job-relatedness of its employment practice.” Id. at 687. (Hufstedler, J., dissenting). As such, the distinction between the de Laurier majority and dissent on the definition of “necessary” merely reflects a disagreement over the district court’s application of the business need standard to the facts of the case. The degree of necessity required was probably never at issue. Compare id. at 678 (practice must be necessary to safe and efficient job performance), with id. at 688 (Hufstedler, J., dissenting). The dissent did not disagree with the formulation of the standard; rather, it argued that on the facts presented, the defendant had not established the existence of a specific relationship between the employer practice and the business need. Id. at 688 (Hufsted-ler, J., dissenting). Neither the de Laurier majority nor the dissent required a demonstration of an “absolutely necessary” relationship between the employment practice and the business need.
Blake preserved the standard announced in de Laurier and expressly recognized that the term “necessary” meant nothing more than a “manifest relationship” between the job practice and business need. Blake, 595 F.2d at 1376 , quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 , 91 S.Ct. 849, 854 , 28 L.Ed.2d 158 (1971). That Blake employed a “reasonably necessary” standard, 1 rather *1288 than an “absolutely necessary” standard, is evident from its various descriptions of the test:
“[J]ob relatedness is relevant only for the purpose of trying to prove that the characteristics which the tests select are directly related to the business necessity.”
Id. at 1377 .
To justify the use of pre-employment selection devices as a business necessity, an employer must show that the tests are so closely job related that their use is “necessary to safe and efficient job performance.” (Dothard, supra, 433 U.S. at 332 n.14, 97 S.Ct. at 2728).
Id. at 1378.
In Albemarle , the Supreme Court explained the legal standard for determining the job relatedness of selection devices: “discriminatory tests are impermissible unless shown by professionally acceptable methods to be ‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.’ ”
Id. (citation omitted).
Appellees failed to establish that the LAPD’s selection devices were so closely job related that their use was justified by business necessity. At most, they showed that there was some rational relationship between their selection devices and certain elements of job performance by police.
Id. at 1379.
The Blake court did not demand an “absolutely necessary” relationship; rather it required a close or direct relationship. Blake did not, as the majority implies, ignore the Supreme Court’s Albemarle decision; it expressly relied upon Albemarle in formulating the job relatedness standard. See id. at 1378, citing Albemarle v. Moody, supra, 422 U.S. at 431 , 95 S.Ct. at 2378 . Although Blake assertedly relied upon dictum in Dothard, ante, at 1279-1282, the language cited in Blake is probably a holding. 2
*1289 At any rate, because de Laurier expressly adopted the same formulation in construing and applying the business necessity defense, the majority’s criticism is patently underin-clusive. See de Laurier, 588 F.2d at 678 , quoting Dothard v. Rawlinson, 433 U.S. at 331 n.14, 97 S.Ct. at 2728 n.14.
In establishing the perceived distinction between the Blake and de Laurier standards, the majority points to a specific passage from Blake and argues than an “inordinate focus on [it] . . . might seem to suggest that business necessity is something over and above job relatedness.” Ante, at 1276-1277, quoting Blake, 595 F.2d at 1377 . The Blake assertion is entirely consistent with the de Laurier test: “[J]ob relatedness is relevant only for the purpose of trying to prove that the characteristics which the various tests select are directly related to the business necessity.” 3 Blake, 595 F.2d at 1377 (emphasis added). An “inordinate focus” on the sentence as written in Blake would yield nothing that is inconsistent with our prior or subsequent precedents.
Moreover, the application of the business necessity defense in Blake fully comported with de Laurier. Blake offered two holdings on the business necessity defense issue and neither even remotely suggests that an absolute necessity is required. First, the court held that, when an employment practice creates a disparate impact, a defendant’s good faith is immaterial to the business necessity defense. Id. at 1376-77 . See Griggs v. Duke Power Co., 401 U.S. 424, 432 , 91 S.Ct. 849, 854 , 28 L.Ed.2d 158 (1971). Second, Blake found that the trial court applied an incorrect business necessity standard. Because the district court had based the award of summary judgment upon defense affidavits that “ ‘for the most part, merely point[ed] out what [was] obvious and need[ed] little proof,’ ” id. at 1378 , we concluded that the trial court had exacted only a rational relationship between the height requirement and police duties, a standard far below that required by the Albemarle decision. Blake, 595 F.2d at 1378 . See Albemarle, 422 U.S. at 431 , 95 S.Ct. at 2378 .
Blake’s retention of the de Laurier business necessity defense and its rejection of the absolute necessity standard is perhaps best illustrated by comparing the language in Blake with the wording used in cases that do require an absolutely necessary relationship between the job practice and the business need. When courts require strict necessity, specific, unmistakable language is employed: “Necessity connotes an irresistible demand .... [A practice] must not only directly foster safety and efficiency . . ., but also must be essential to those goals.” United States v. Bethlehem Steel Corporation, 446 F.2d 652, 662 (2nd Cir. 1971) (emphasis added). See, e. g., Kirby v. Colony Furniture Co., Inc., 613 F.2d 696 , 705 n.6 (8th Cir. 1980); Green v. Missouri Pacific Railroad Company, 523 F.2d 1290, 1295-98 (8th Cir. 1975); Rock v. Norfolk & W. Ry. Co., 473 F.2d 1344 , 1349 (4th Cir.), cert. denied 412 U.S. 933 , 93 S.Ct. 2754 , 37 L.Ed.2d 161 (1973); United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301 , 308 (8th Cir.) (en banc), cert. denied, 409 U.S. 1107 , 93 S.Ct. 900 , 34 L.Ed.2d 687 (1972); United States v. Jacksonville Ter *1290 minal Co., 451 F.2d 418, 451 (5th Cir. 1971), cert. denied, 406 U.S. 906 , 92 S.Ct. 1607 , 31 L.Ed.2d 815 (1972). Similar language is simply not present in Blake . On the contrary, the court in Blake specifically required that the practice be “directly related to the business necessity.” Blake, 595 F.2d at 1377 . By demanding that the practice do more than “directly foster” the business need, the circuit cases cited above expressly reject the “directly related” standard established in Blake . Hence, Blake’s language is fundamentally irreconcilable with decisions that require an absolutely necessary relationship.
(2)
Allocation of Burden of Proof Regarding Less Discriminatory Alternatives
It might be argued that, if Blake did require absolute necessity between the employment practice and business need, it would subtly shift the plaintiff’s burden of proving the availability of less discriminatory alternatives into the defendant’s business necessity defense because no less discriminatory alternatives could exist if the practice were absolutely necessary to the business need. It could be argued further that, by implicitly requiring proof of the absence of less discriminatory alternatives, the employer is burdened with an unduly onerous task: proof of a negative. 4 Indeed, these concerns probably constitute the unarticu-lated predicate to the majority’s perception of intracircuit discord.
The court in Robinson v. Lorillard Corporation, 444 F.2d 791 , 798 n.7 (4th Cir. 1971), made these same arguments yet the question underlying the assertions — whether proof of an absolutely necessary relationship between the job practice and business need subsumes the proof of alternatives issue — was neither explored nor proven. Although there may be an immediate intuitive appeal in the Robinson view, the more probable interpretation of the language in Dothard suggests that the Court’s definition of “necessary” excludes any consideration of less discriminatory alternatives in the employer’s burden of proof.
If we assume that the words “necessary to safe and efficient job performance” refer to the means/end relationship between the job practice and business need (an assumption the majority and I seem to agree upon, see ante, at 1274-1277), the Dothard Court appears to have required simply that *1291 the means — the job practice — efficiently maximize the end — the business need. Since the end in issue at this stage of the proof process, i. e., the employer’s business purpose, is economic and not necessarily coextensive with interests sought to be protected by less discriminatory alternatives, see ante, at 1277-1279 (legitimacy of employer goals of efficiency and productivity), it is entirely possible to find an optimal or “necessary” advancement of business need, thereby fulfilling the employer’s burden, and a corresponding substantial infringement upon employee rights. See Albemarle Paper Co. v. Moody, 422 U.S. at 431-32 , 95 S.Ct. at 2378 , (test may significantly predict work behavior and still be discriminatory). Consequently, the distinction between an absolutely necessary relationship and a reasonably necessary relationship, rather than indicating the degree to which a less discriminatory alternatives analysis is implicated in the business necessity defense, is exclusively concerned with the measure of efficiency between the job practice and business need. The existence or nonexistence of less discriminatory alternatives is neither definitionally nor operationally material to an analysis that solely concerns itself with the substantiality of this means/end relationship.
Although an examination of less discriminatory alternatives could overlap with proof offered at the business necessity stage, the overlay would in no sense be an inevitable product of requiring a “necessary” relationship between the job practice and business need. Indeed, the Court suggested as much in Dothard when it asserted that the employer’s business need, strong prison guards, “could be achieved by [alternatively] adopting and validating a test for applicants that measures strength directly. Such a test, fairly administered, would fully satisfy the standards of Title VII . . . . ” Dothard v. Rawlinson, 433 U.S. at 332, 97 S.Ct. at 2728 (footnote omitted) (emphasis added). The Court offered this alternative test as evidence of the relative inefficiency of testing employed by the institution, not as evidence of the existence of less discriminatory alternatives. This latter concern is parenthetically indicated by the requirement that the strength test be “fairly administered.” Proof of fair administration would entail an examination of less discriminatory alternatives to the optimally efficient business need test and, therefore, constitute an element of the plaintiff’s burden.
Several cases seem to support the propositions that: (1) by focusing solely upon the degree of efficiency between job practice and business need, the “necessary” language in Dothard excludes consideration of less discriminatory alternatives as part of the employer’s proof; and (2) any discussion of alternatives during judicial review of the employer’s burden of proof centers on more efficient alternatives, and not, necessarily, on less discriminatory alternatives. See Albemarle Paper Co. v. Moody, 422 U.S. at 432 , 95 S.Ct. at 2378 (study’s failure to analyze particular skills needed in job precluded a finding of significant correlation); Craig v. County of Los Angeles, 626 F.2d at 668 (county’s test failed to consider alternative fact that, by virtue of cultural rapport, Mexican-American police officer would be more efficient in dealing with Mexican-American constituency); Blake, 595 F.2d at 1376 (fact that police department functioned successfully without previous regulation indicated that the rule was not necessary to efficient operation).
Of course, the more obvious evidence that the Court in Dothard did not intend that the word “necessary” subsume consideration of less discriminatory alternatives is the likelihood that the Court would not, within a period of only two years, implicitly contradict the allocation scheme announced in Albemarle . Therefore, the predicate to the possible criticism of Blake discussed here — that the word “necessary” effects a subtle shift in burdens — must be regarded with some caution.
Even if we work under the assumption that an “absolutely necessary” standard *1292 shifts the burden of proving alternatives, 5 however, it is clear that Blake does not employ the subtle technique attributed to it by the majority. First, as is demonstrated in the preceding section Blake does not require absolute necessity. Second, as shown below, Blake implicitly acknowledged the danger of a sub silentio shift in burdens by expressly segregating the “alternatives” discussion from its business necessity analysis. Finally, Blake is directly contrary to the de Laurier dissent and entirely consistent with the de Laurier majority on the issue of proving alternatives.
Quite apart from its content, the organization of the Blake opinion indicates that the court followed the precedent of de Lau-rier and Albemarle . The discussions of the business necessity defense and the plaintiff’s proof of less discriminatory alternatives are plainly demarcated by separate subtitles. Blake, 595 F.2d at 1375, 1383 . By structurally dissociating these two burdens, Blake implies that, under a reasonable necessity standard, the plaintiff’s burden is not subtly shifted into the business necessity defense. Cases that require absolute necessity stand in direct contrast. 6
The comparison between Blake and the de Laurier dissent is most important on the issue of proof of less discriminatory alternatives: Blake directly conflicts with the allocation advocated in the de Laurier dissent. In discussing the issue of alternatives, the de Laurier dissent, unlike Blake , drastically blurred and probably ignored the distinction between the business necessity defense and the plaintiff’s burden of showing less discriminatory alternatives:
Even if the district court’s findings were unavailable, the business necessity conclusion cannot be sustained because the district court completely failed to consider the existence of less burdensome alternatives, such as individualized decision-making, that would serve the legitimate interests of the school district as well as the mandatory leave policy. The evidence presented by both parties, and the court’s own findings of fact, strongly suggest the availability of such alternatives, and Do-thard requires that they be considered in establishing the business necessity defense.
de Laurier, 588 F.2d at 691 (Hufstedler, J., dissenting) (emphasis added). Although the de Laurier dissent is wrong in its construction of Dothard, our subsequent reliance on Dothard in Blake was fortified by the correct interpretation and an express citation to Albemarle : “Even if an employer meets his burden of demonstrating business necessity, Title VII plaintiffs may prevail if they show that alternative selection devices are available that would serve the employer’s legitimate interests without discriminatory effects.” (Albemarle, supra, 422 U.S. at 425 , 95 S.Ct. at 2375 ). Blake, 595 F.2d at 1367 . Thus, Blake unmistakably rejects the de Laurier dissent’s analysis on the proof of *1293 alternatives issue. Contrary to the de Lau-rier dissent, Blake assigns to the plaintiff the burden of demonstrating less burdensome alternatives, thereby correctly applying the de Laurier majority standard.
B.
An analysis of Blake and a comparison between it and the de Laurier majority indicates that the same degree of necessity is demanded in both cases — reasonable necessity. Moreover, those circuits that have adopted a strict or absolute necessity approach to the business necessity defense expressly indicate the use of the more exacting standard by employing words such as “irresistible” and “essential” in expressing the degree of necessity required and discard the “directly foster” standard as too lenient. Blake , on the other hand, adopts a “directly related to” standard that is substantively indistinguishable from the “directly foster” test. Thus, Blake eschews the more demanding tests of other circuits and, consistent with de Laurier, adopts an intermediate standard requiring more than a rational relationship but less than an absolutely necessary connection. This standard fully comports with our decisions, including that announced today by the majority. See ante, at 1275-1277 (requiring more than a rational relationship).
An examination of the Blake decision also contradicts any claim that it either sanctions or encourages a sub silentio shift in the burden of showing the availability of less burdensome alternatives. By requiring less than absolute necessity and by separating the discussion and application of the business necessity defense from the analysis of less burdensome alternatives, Blake precludes any subtle shift in burden of proof, even if such a shift were possible. Moreover, Blake clearly disavows the de Laurier dissent’s allocation of proof on the alternatives issue. Blake , therefore, correctly observes the de Laurier majority’s precedent on the issue of proving less discriminatory alternatives.
There is no intracircuit discord over the business necessity defense. The Craig decision, a purported foil to the Blake analysis, see ante, at 1276-1277, directly cites the Blake formulation of the business necessity defense, 626 F.2d at 662 (citing with approval the page at which Blake quotes the contested Dothard language), and characterizes the job relatedness standard as “rigorous” immediately after praising the “instructive” benefits of Blake. 626 F.2d at 666 . Compare Blake, 595 F.2d at 1377 (business necessity defense is narrow), with Craig, 626 F.2d at 656 (job relatedness standards are rigorous). Moreover, in Harriss v. Pan American World Airways, Inc., 649 F.2d 670 at 675 (9th Cir. as corrected Dec. 30, 1980), we again affirmed Blake’s formulation of the business necessity defense and quoted Dothard and Blake for the proposition that “a discriminatory employment practice must be shown to be necessary to safe and efficient job performance.” Harriss , slip op. at 675. Indeed, Harriss relied on Blake in order to hold that the defendant’s evidence was “sufficiently compelling.” Id. at 675. The majority opinion today, not Craig , is the first decision to suggest that there might be a conflict in the development of this circuit’s business necessity standards. As a matter of precedent, therefore, Craig has validated Blake’s status in this circuit. 7
Ill
The majority concedes that the district court committed legal error by requiring *1294 only that the City supply “competent and relevant evidence” on the issue of the job relatedness of their employment standards, ante, at 1279-1282, yet it concludes that despite this error the lower court’s determination that the City met its burden of establishing a business necessity must be upheld on appeal. I cannot share this view. Accordingly, I respectfully dissent from this holding; rather than affirm the district court I would remand the case with instructions to reevaluate the evidence under the proper legal standard.
A district court’s findings of subsidiary fact in Title VII disparate impact cases must normally be reviewed by an appellate court under the clearly erroneous standard. See Harriss v. Pan American World Airways, Inc., 637 F.2d 1297 (9th Cir. 1980). We would, therefore, usually accord great deference to the lower court’s factual findings on the issue of business necessity defense and refrain from substituting our judgment for that of the district court.
When a district court’s factual findings are induced by an erroneous conception of the law, however, we are not free to indulge in a deferential review. On the contrary, we must discard the clearly erroneous standard and independently review the record because it has long been acknowledged that a lower court's legal misconception can directly infect its findings. See United States v. Singer Mfg. Co., 374 U.S. 174 , 194 n.9, 83 S.Ct. 1773 , 1784 n.9, 10 L.Ed.2d 823 (1963); United States v. Gypsum Co., 333 U.S. 364, 394 , 68 S.Ct. 525, 541 , 92 L.Ed. 746 (1948); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1382 (5th Cir. 1978), cert. denied, 441 U.S. 968 , 99 S.Ct. 2417 , 60 L.Ed.2d 1073 (1979); James v. Stockham Vales & Fittings Co., 559 F.2d 310 , 314 n.1 (5th Cir. 1977), cert. denied, 434 U.S. 1034 , 98 S.Ct. 767 , 54 L.Ed.2d 781 (1978); Traveler’s Indemnity Co. v. United States, 543 F.2d 71, 73 (9th Cir. 1976); Ritter v. Morton, 513 F.2d 942, 949 (9th Cir.) cert. denied, 423 U.S. 947 , 96 S.Ct. 362 , 46 L.Ed.2d 281 (1975) 8 ; People of State of California State Lands Comm’n v. Simon, 504 F.2d 430 , 440 & n.33 (Em.App.), cert. denied, 419 U.S. 1021 , 95 S.Ct. 496 , 42 L.Ed.2d 294 (1974). As a consequence, we must assume that the district court’s findings in this case were infected by its erroneous understanding of the business necessity defense and independently review those findings.
The majority opinion not only fails to acknowledge this principle but blatantly states that we can deferentially review the lower court’s findings:
At trial, the City produced expert testimony that its validation procedures met *1295 professional standards. Gonzales produced expert testimony that the procedures were professionally unacceptable. The district judge resolved this conflict of testimony in favor of the City’s expert, not only by ruling that the examinations were job related, but also by resolving every testimonial dispute between these experts in favor of the City. We will not disturb such a credibility determination.
Ante, at 1282.
This approach is an obvious application of the clearly erroneous standard and cannot be justified under the circumstances here presented. The district judge’s conclusion that the examinations were job related is entirely without conclusive force because it rendered that determination under the incorrect assumption that job relatedness could be established and the defendant’s burden met with the introduction of evidence that was merely “relevant” or “competent”. Similarly, its determination that the City’s expert was more credible cannot be insulated by a sympathetic appellate review because that conclusion was directly engendered by its erroneous assumption that the City could satisfy its burden of proof on the business necessity defense with the introduction “relevant” or “competent” evidence.
Although the normal course in such a case would be an appellate de novo review ■of the district court’s findings of fact, in view of the complexity of the evidence received and the possibility that the party’s presentation of evidence was inhibited by the lower court’s legal error, such an examination would more properly proceed at the district court level. I would, therefore, remand the case for an introduction and evaluation of evidence and a redetermination on the issue whether the City met its burden of proving job relatedness and validation.
. The proposition that “reasonable necessity” is the appropriate standard is supported by other phrases employed in Griggs and Blake. Compare Griggs v. Duke Power Co., 401 U.S. 432, 436 , 91 S.Ct. 854 , 856 (1971) (“demonstrable relationship to job performance”, “reasonable measure of job performance”, “related to job performance”), with Blake v. City of Los Angeles, 595 F.2d at 1377 (“directly related”). At least one commentator has suggested: (1) Griggs should not be read as imparting any special significance to the term “necessary”; and (2) Blake , by quoting the Dothard “necessary” language, required only reasonable necessity, not absolute necessity. See Comment, The Business Necessity Defense to Disparate-Impact Liability Under Title VII, 46 U.Chi.L. Rev. 911, 933 & n.117 (1979) (directly contrasting Green v. Missouri Pac. R.R., 523 F.2d 1290, *1288 1298 (8th Cir. 1975), an absolute necessity case, with Blake).
. Footnote 14 of Dothard provides:
In what is perhaps a variation on their constitutional challenge to the validity of Title VII itself, see n.l, supra, the appellants contend that the establishment of the minimum height and weight standards by statute requires that they be given greater deference than is typically given private employer-established job qualifications. The relevant legislative history of the 1972 amendments extending Title VII to the States as employers does not, however, support such a result. Instead, Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike. See H.R.Rep.No.92-238, p. 17 (1971); S.Rep.No.92-415, p. 10 (1971); U.S. Code Cong. & Admin.News 1972, p. 2137. See also Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002 (CA9). Thus for both private and public employers, “[t]he touchstone is business necessity,” Griggs, 401 U.S. at 431 , 91 S.Ct. at 853 ; a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.
Dothard v. Rawlinson, 433 U.S. at 331 n.14, 97 S.Ct. at 2728 n.14. Because the Court expressly rejected the employer’s argument that governmental entities were entitled to greater deference than private employers, the Court appears to have rendered a holding. Subsequent cases have cited this passage in Dothard, clearly proceeding under the assumption that the language is controlling precedent. See United States v. Miami, 614 F.2d 1322 , 1366 n.27 (5th Cir. 1980), reh. granted, 625 F.2d 1310 (5th Cir. 1980); Boyd v. Ozark Airlines, Inc., 568 F.2d 50 , 54 n.3 (8th Cir. 1977); Liberles v. Daniel, 477 F.Supp. 504, 508 (N.D.Ill.1979).
Even if we were to assume that the employers in Dothard failed to properly raise the public/private distinction at trial, an assumption open to serious question, see Dothard, 433 U.S. at 323 n.1, 97 S.Ct. at 2724 n.1, two considerations indicate that the Court’s language would still constitute a holding. First, whether an appellate court will review an issue not properly raised at trial is a matter committed to its discretion. Singleton v. Wulff, 428 U.S. 106, 120 , 96 S.Ct. 2868, 2872 , 49 L.Ed.2d 826 (1972); Reliance Finance Corp. v. Miller, 557 F.2d 674, 682-83 (9th Cir. 1977). Because the Court affirmatively exercised its discretion and reviewed the public/private distinction in Dothard, its pronouncement is a holding. A second, purely definitional ground independently preserves the language’s status as holding. Even if the Court had disposed of the issue on the basis of the employer’s failure to raise it,'at *1289 trial, the fact that the Court concurrently confronted and resolved the question on a substantive ground precludes the dictum characterization suggested by the majority opinion. See Union Pacific Railroad Co. v. Mason City and Fort Dodge Co., 199 U.S. 160, 166 , 26 S.Ct. 19, 20 , 50 L.Ed. 134 (1905) (a district ruling or any question fairly arising in a trial is not obiter dictum, and when the judgment rests upon two grounds, either being sufficient to sustain it, and the appellate court sustains it on both grounds, the ruling on neither is obiter but each is the ruling of the court and of equal validity with the other); Railroad Companies v. Schutte, 103 U.S. 118, 143 , 26 L.Ed. 327 (1880) (same).
. The majority implies that the Blake court viewed the job relatedness standard as only one of several elements necessary to establish business necessity. The full quote, however, indicates that Blake did not erect a more exacting and multifaceted test than that required in either de Laurier or Albemarle .
. Proof of a negative in Title VII cases would not necessarily be onerous. For instance, it might not be impractical to require the employer to make a preliminary demonstration of the absence of less discriminatory alternatives under a relaxed burden of proof followed by a more thorough presentation of proof by the plaintiff. See Bernardt, Griggs v. Duke Power Co.: The Implications for Private and Public Employers, 50 Texas L.Rev. 901 , 914-15 (1972). Our duty in Title VII cases, however, is to discern Congressional intent, not to speculate about the degree of difficulty in proving negative propositions. Since the statute at issue is silent, administrative considerations are instructive. See Griggs v. Duke Power Co., 401 U.S. 424, 433-34 , 91 S.Ct. 849, 854-55 , 28 L.Ed.2d 158 (1971) (though not formal regulations, guidelines are entitled to great deference).
As late as 1973 the EEOC Guidelines required that the employer establish the nonexistence of less discriminatory alternatives. 29 C.F.R. § 1607.3 (1973). Although the Guidelines might have influenced some courts to place the alternatives burden on the plaintiff, the Guidelines were apparently so rigid that even the EEOC did not apply them strictly. See Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1157 & n.232 (1971). Since then, the regulations have been rewritten. Although, as a whole, the most recent guideline is somewhat equivocal, it now appears to place the alternative burden on the plaintiff:
Whenever the user is shown an alternative selection procedure with evidence of less adverse impact and substantial evidence of validity for the same job in similar circumstances, the user should investigate it to determine the appropriateness of using or validating it in accord with these guidelines.
29 C.F.R. § 1607.3 (1979). This allocation, of course, is consistent with Albemarle v. Moody, 422 U.S. at 431-32 , 95 S.Ct. at 2378 , Blake, 595 F.2d at 1383 and de Laurier, 588 F.2d at 681 .
. Although Blake cites and quotes Robinson, 444 F.2d at 791 , a case that obscured the proper distinction between burdens of proof, see Robinson, 444 F.2d at 793 , Blake does so only in response to the trial court’s erroneous construction of the same quotation of the “good faith issue.” See Blake, 595 F.2d at 1376 ; Blake v. City of Los Angeles, 435 F.Supp. 55, 61-62 (C.D.Cal.1977). Blake does not countenance or follow Robinson’s rather loose description of the allocation issue. Compare Blake, 595 F.2d at 1383 (establishing a clear separation of the business necessity defense from proof of less discriminatory alternatives), with de Laurier, 588 F.2d at 691 (Hufstedler, J., dissenting) (blurring the distinction between proof of business necessity and less discriminatory alternatives).
. Cases requiring that the employer establish the absence of less burdensome alternatives indiscriminately merge their discussion of the two burdens. See Kirby v. Colony Furniture Co., Inc., 613 F.2d 696 , 705 n.6 (8th Cir. 1980); Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1295-98 (8th Cir. 1975); United States v. St. Louis-San Francisco Railway Company, 464 F.2d 301 , 308 (8th Cir.) (en banc), cert. denied, 409 U.S. 1107 , 93 S.Ct. 900 , 34 L.Ed.2d 687 (1972); United States v. Jacksonville Terminal Co., 451 F.2d 418, 451 (5th Cir. 1971), cert. denied, 406 U.S. 906 , 92 S.Ct. 1607 , 31 L.Ed.2d 815 (1972); Robinson v. Lorillard, 444 F.2d 791 , 798 & n.7 (4th Cir. 1971).
. The majority quotes the Supreme Court’s recent disparate treatment decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981), for the proposition that “[i]n a Title VII case, the allocation of burdens ... is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Ante at 1275 n. 5, quoting Burdine, 450 U.S. at 255 , 101 S.Ct. at 1094 (emphasis added). It also suggests that Title VII is “concerned with combating culpable discrimination” and that “[i]n disparate impact cases, culpable discrimination takes the form of business decisions that have a discriminatory impact and are not justified by their job-relatedness. Ante at 1275 n. 5 (emphasis added). Despite the majority’s protestations to the contrary, see ante at 1275 n. 5 the cumulative’ effect of its quotation of Burdine *1294 and its requirement of “culpable discrimination” is the insertion of a subtle intent requirement into disparate impact litigation.
It is black-letter law that intent is irrelevant in disparate impact cases. International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 334-35 n. 15 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 432 , (1971); Williams v. Colorado Springs, Colorado School District #11, (and Colorado Springs Teachers Association), 641 F.2d 835 , 839-40 (9th Cir. 1981); Golden v. International Association of Firefighters, 633 F.2d 817, 821 (9th Cir. 1980); Ensley Branch of N.A.A.C.P. v. Seibels, 616 F.2d 812 , 823 n. 27 (5th Cir. 1980); Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1309 (5th Cir. 1980); Kirby v. Colony Furniture Co., Inc., 613 F.2d 696 -704 (8th Cir. 1980). By intimating that procedures in disparate impact litigation are designed to focus on intent, the majority today ignores a decade of precedent. Accordingly, I dissent from the majority’s dictum and its reference to “culpable discrimination.”
. In Ritter , this court assumed that it could “regard a finding as clearly erroneous not only if it is without adequate evidentiary support, but also if it was induced by an erroneous view of the law”. 513 F.2d at 949 . Traveler’s Indemnity adopted the same approach. See 543 F.2d at 73 . This standard grossly exaggerates the principles established in Singer and Rowe v. General Motors Corp., 475 F.2d 348 , 356 n.15 (5th Cir. 1972), cases relied upon in our Ritter decision. Rowe and Singer merely stated that factual findings induced by incorrect legal standards are subject to independent review, not that they are clearly erroneous ab initio as a matter of law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8913812. Public record. Not legal advice.