Watson v. Fort Worth Bank & Trust

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join, concurring in part and concurring in the judgment.

I agree that disparate-impact analysis may be applied to claims of discrimination caused by subjective or discretionary selection processes, and I therefore join Parts I, II-A, II-B, and III of the Court’s opinion. I am concerned, however, that the plurality mischaracterizes the nature of the burdens this Court has allocated for proving and rebutting disparate-impact claims. In so doing, the plurality projects an application of disparate-impact analysis to subjective employment practices that I find to be inconsistent with the proper evi-dentiary standards and with the central purpose of Title VII. I therefore cannot join Parts II-C and II-D. I write separately to reiterate what I thought our prior cases had made plain about the nature of claims brought within the disparate-impact framework.

I

The plurality’s discussion of the allocation of burdens of proof and production that apply in litigating a disparate-impact claim under Title VII of the Civil Rights Act of 1964, 78 Stat. 263 , as amended, 42 U. S. C. §20Q0e et seq., is flatly *1001 contradicted by our cases. 1 The plurality, of course, is correct that the initial burden of proof is borne by the plaintiff, who must establish, by some form of numerical showing, that a facially neutral hiring practice “select[s] applicants ... in a significantly discriminatory pattern.” Dothard v. Rawlinson, 433 U. S. 321, 329 (1977). 2 Our cases make clear, however, thát, contrary to the plurality’s assertion, ante, at 997, a plaintiff who successfully establishes this prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. See, e. g., Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975) (employer must “meet the burden of proving that its tests are ‘job related’ ”); Dothard v. Rawlinson, 433 U. S., at 329 (employer must “prov[e] that the challenged requirements are job related”); Griggs v. Duke Power Co., 401 U. S. 424, 432 (1971) (“Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question”) (emphasis added in each quotation).

The plurality’s suggested allocation of burdens bears a closer resemblance to the allocation of burdens we established for disparate-treatment claims in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-804 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252-256 (1981), than it does to those the Court has established for disparate-impact claims. Nothing in our cases supports the plurality’s declaration that, in the context of a disparate-impact challenge, “the ultimate burden of prov *1002 ing that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times.” Ante, at 997. What is most striking about this statement is that it is a near-perfect echo of this Court’s declaration in Burdine that, in the context of an individual disparate-treatment claim, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” 450 U. S., at 253 . In attempting to mimic the allocation of burdens the Court has established in the very different context of individual disparate-treatment claims, the plurality turns a blind eye to the crucial distinctions between the two forms of claims. 3

The violation alleged in a disparate-treatment challenge focuses exclusively on the intent of the employer. See Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977) (in disparate-treatment challenge “[p]roof of discriminatory motive is critical”). Unless it is proved that an employer intended to disfavor the plaintiff because of his membership in a protected class, a disparate-treatment claim fails. A disparate-impact claim, in contrast, focuses on the effect of the employment practice. See id., at 336, n. 15 (disparate-impact claims “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”). Unless an employment practice producing the disparate effect is justified by “business necessity,” ibid., it violates Title VII, for “good intent or absence of discriminatory intent does not re *1003 deem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups.” Griggs v. Duke Power Co., 401 U. S., at 432 .

In McDonnell Douglas and Burdine, this Court formulated a scheme of burden allocation designed “progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U. S., at 255, n. 8 . The plaintiff’s initial burden of establishing a prima facie case of disparate treatment is “not onerous,” id., at 253 . and “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Construction Corp. v. Waters, 438 U. S. 567, 577 (1978). 4 An employer may rebut this presumption if it asserts that plaintiff’s rejection was based on “a legitimate, nondiscriminatory reason” and produces evidence sufficient to “raisfe] a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Dept. of Community Affairs v. Burdine, 450 U. S., at 254-255 . If the employer satisfies “this burden of production,” then “the factual inquiry proceeds to a new level of specificity,” id., at 255 , and it is up to the plaintiff to prove that the proffered reason was a pretext for discrimination. Id., at 256 . This allocation of burdens reflects the Court’s unwillingness to require a trial court to presume, on the basis of the facts establishing a prima facie case, that an employer intended to discriminate, in the face of evidence suggesting that the plaintiff’s rejection might have been justified by *1004 some nondiscriminatory reason. The prima facie. case is therefore insufficient to shift the burden of proving a lack of discriminatory intent to the defendant.

The prima facie case of disparate impact established by a showing of a significant statistical disparity is notably different. Unlike a claim of intentional discrimination, which the McDonnell Douglas factors establish only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity. Once an employment practice is shown to have discriminatory consequences, an employer can escape liability only if it persuades the court that the selection process producing the disparity has “‘a manifest relationship to the employment in question.’” Connecticut v. Teal, 457 U. S. 440, 446 (1982), quoting Griggs v. Duke Power Co., 401 U. S., at 432 . The plaintiff in such a case already has proved that the employment practice has an improper effect; it is up to the employer to prove that the discriminatory effect is justified.

Intertwined with the plurality’s suggestion that the defendant’s burden of establishing business necessity is merely one of production is the implication that the defendant may satisfy this burden simply by “producing evidence that its employment practices are based on legitimate business reasons.” Ante, at 998. Again, the echo from the disparate-treatment cases is unmistakable. In that context, it is enough for an employer “to articulate some legitimate, nondiscriminatory reason” for the allegedly discriminatory act in order to rebut the presumption of intentional discrimination. McDonnell Douglas, 411 U. S., at 802 . But again the plurality misses a key distinction: An employer accused of discriminating intentionally need only dispute that it had any such intent — which it can do by offering any legitimate, nondiscriminatory justification. Such a justification is simply not enough to legitimize a practice that has the effect of excluding a protected class from job opportunities at a significantly disproportionate rate. Our cases since Griggs make *1005 clear that this effect itself runs afoul of Title VII unless it is “necessary to safe and efficient job performance.” Dothard v. Rawlinson, 433 U. S., at 332, n. 14 . See also Nashville Gas Co. v. Satty, 434 U. S. 136, 143 (1977) (issue is whether “a company’s business necessitates the adoption of particular leave policies”); Griggs v. Duke Power Co., 401 U. S., at 432 (“[A]ny given requirement must have a manifest relationship to the employment in question”) (emphasis added).

Precisely what constitutes a business necessity cannot be reduced, of course, to a scientific formula, for it necessarily involves' a case-specific judgment which must take into account the nature of the particular business and job in question. The term itself, however, goes a long way toward establishing the limits of the defense: To be justified as a business necessity an employment criterion must bear more than an indirect or minimal relationship to job performance. See Dothard v. Rawlinson, 433 U. S., at 331-332 (absent proof that height and weight requirements directly correlated with amount of strength deemed “essential to good job performance,” requirements not justified as business necessity); Albemarle Paper Co. v. Moody, 422 U. S., at 431 , quoting the Equal Employment Opportunity Commission’s (EEOC’s) Uniform Guidelines on Employee Selection Procedures, 29 CFR § 1607.4 (c) (1974) (“The message of these Guidelines is the same as that of the Griggs case — that 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’”). Cf. Washington v. Davis, 426 U. S. 229, 247 (1976) (Title VII litigation “involves a more probing judicial review, and less deference to the seemingly reasonable acts of [employers] than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed”). The criterion must directly relate to a prospective employee’s ability to perform the job effectively. And even where an employer *1006 proves that a particular selection process is sufficiently job related, the process in question may still be determined to be unlawful, if the plaintiff persuades the court that other selection processes that have a lesser discriminatory effect could also suitably serve the employer’s business needs. Albemarle Paper Co. v. Moody, 422 U. S., at 425 . In sum, under Griggs and its progeny, an employer, no matter how well intended, will be liable under Title VII if it relies upon an employment-selection process that disadvantages a protected class, unless that process is shown to be necessary to fulfill legitimate business requirements. The plurality’s suggestion that the employer does not bear the burden of making this showing cannot be squared with our prior cases.

I — I HH

I am also concerned that, unless elaborated upon, the plurality’s projection of how disparate-impact analysis should be applied to subjective-selection processes may prove misleading. The plurality suggests: “In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a ‘manifest relationship to the employment in question.’” Ante, at 999. This statement warrants further comment in two respects.

A

As explained above, once it has been established that a selection method has a significantly disparate impact on a protected class, it is clearly not enough for an employer merely to produce evidence that the method of selection is job related. It is an employer’s obligation to persuade the reviewing court of this fact.

While the formal validation techniques endorsed by the EEOC in its Uniform Guidelines may sometimes not be effective in measuring the job-relatedness of.subjective-selection *1007 processes, 5 a variety of methods are available for establishing the link between these selection processes and job performance, just as they are for objective-selection devices. See 29 CFR §§ 1607.6 (B)(1) and (2) (1987) (where selection procedure with disparate impact cannot be formally validated, employer can “justify continued use of the procedure in accord with Federal law”). Cf. Washington v. Davis, 426 U. S., at 247 , and n. 13 (hiring and promotion practices can be validated in “any one of several ways”). The proper means of establishing business necessity will vary with the type and size of the business in question, as well as the particular job for which the selection process is employed. Courts have recognized that the results of studies, see Davis v. Dallas, 777 F. 2d 205, 218-219 (CA5 1985) (nationwide studies and reports showing job-relatedness of college-degree requirement), cert. denied, 476 U. S. 1116 (1986); the presentation of expert testimony, 777 F. 2d, at 219-222, 224-225 (criminal justice scholars’ testimony explaining job-relatedness of college-degree requirement and psychologist’s testimony explaining job-relatedness of prohibition on recent marijuana use); and prior successful experience, Zahorik v. Cornell University, 729 F. 2d 85, 96 (CA2 1984) (“generations” of experience reflecting job-relatedness of decentralized deci-sionmaking structure based on peer judgments in academic setting), can all be used, under appropriate circumstances, to establish business necessity. 6 Moreover, an employer that *1008 complies with the EEOC’s recordkeeping requirements, 29 CFR §§1607.4 and 1607.15 (1987), and keeps track of the effect of its practices on protected classes, will be better prepared to document the correlation between its employment practices and successful job performance when required to do so by Title VII.

The fact that job-relatedness cannot always be established with mathematical certainty does not free an employer from its burden of proof, but rather requires a trial court to look to different forms of evidence to assess an employer’s claim of business necessity. And while common sense surely plays a part in this assessment, a reviewing court may not rely on its own, or an employer’s, sense of what is “normal,” ante, at 999, as a substitute for a neutral assessment of the evidence presented. Indeed, to the extent an employer’s “normal” practices serve to perpetuate a racially disparate status quo, they clearly violate Title VII unless they can be shown to be necessary, in addition to being “normal.” See Griggs v. Duke Power Co., 401 U. S., at 430 (“[Practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the [discriminatory] status quo”).

B

The plurality’s prediction that an employer “will often find it easier” ante, at 999, to justify the use of subjective practices as a business necessity is difficult to analyze in the abstract. Nevertheless, it bears noting that this statement *1009 cannot be read, consistently with Title VII principles, to lessen the employer’s burden of justifying an employment practice that produces a disparate impact simply because the practice relies upon subjective assessments. Indeed, the less defined the particular criteria involved, or the system relied upon to assess these criteria, the more difficult it may be for a reviewing court to assess the connection between the selection- process and job performance. Cf. Albemarle Paper Co. v. Moody, 422 U. S., at 433 (validation mechanism that fails to identify “whether the criteria actually considered were sufficiently related to the [employer’s] legitimate interest in job-specific ability” cannot establish that test in question was sufficiently job related). For example, in this case the Bank supervisors were given complete, unguided discretion in evaluating applicants for the promotions in question. 7 If petitioner can successfully establish that respondent’s hiring practice disfavored black applicants to a significant extent, the bald assertion that a purely discretionary selection process allowed respondent to discover the best people for the job, without any further evidentiary support, would not be enough to prove job-relatedness. 8

Allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII’s goal of eradicating discrimination in employment. It would make no sense to establish a general rule whereby an employer could more easily establish busi *1010 ness necessity for an employment practice, which left the assessment of a list of general character qualities to the hirer’s discretion, than for a practice consisting of the evaluation of various objective criteria carefully tailored to measure relevant job qualifications. Such a rule would encourage employers to abandon attempts to construct selection mechanisms subject to neutral application for the shelter of vague generalities. 9

While subjective criteria, like objective criteria, will sometimes pose difficult problems for the court charged with assessing the relationship between selection process and job performance, the fact that some cases will require courts to develop a greater factual record and, perhaps, exercise a greater degree of judgment, does not dictate that subjective-selection processes generally are to be accepted at face value, as long as they strike the reviewing court as “normal and legitimate.” Ante, at 999. 10 Griggs teaches that employment practices “fair in form, but discriminatory in opera *1011 tion,” cannot be tolerated under Title VII. 401 U. S.,' at 431. This lesson should not be forgotten simply because the “fair form” is a subjective one.

It bears noting that the question on which we granted certiorari, and the question presented in petitioner’s brief, is whether disparate-impact analysis applies to subjective practices, not where the burdens fall, if the analysis applies. The plurality need not have reached its discussion of burden allocation and evidentiary standards to resolve the question presented. I, however, find it necessary to reach this issue in order to respond to remarks made by the plurality.

I have no quarrel with the plurality’s characterization of the plaintiff’s burden of establishing that any disparity is significant. See ante, at 994-997.

See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252, n. 5 (1981) (recognizing, in the context of articulating allocation of burdens applicable to disparate-treatment claims, that “the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes”); United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711, 713, n. 1 (1983) (“We have consistently distinguished disparate-treatment cases from cases involving facially neutral employment standards that have disparate impact on minority applicants”).

In McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973), the Court explained that a plaintiff could meet his burden of establishing a prima facie case of racial discrimination by showing:

“(i) that he belongs to a racial minority; (ii.) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”

The American Psychological Association, co-author of Standards for Educational and Psychological Testing (1985), which is relied upon by the EEOC in its Uniform Guidelines, has submitted a brief as amicus curiae explaining that subjective-assessment devices are, in fact, amenable to the same “psychometric scrutiny” as more objective screening devices, such as written tests. Brief for the American Psychological Association as Ami-cus Curiae 2. See also Bartholet, Application of Title VII to Jobs in High Places, 95 Harv. L. Rev. 947 , 987-988 (1982) (discussing feasibility of validating subjective hiring assessments).

As a corollary, of course, a Title VII plaintiff can attack an employer’s offer of proof by presenting contrary evidence, including proof that the em *1008 ployer’s hiring methods failed in fact to screen for the qualities identified as central to successful job performance. In this case, for example, petitioner could produce evidence that Kevin Brown, one of the white employees chosen over her for a promotion, • allegedly in part because of his greater “supervisory experience,” proved to be totally unqualified for the position. App. 113. Six months after Brown was promoted, his performance was evaluated as only “close to being ‘competent.’” 1 Record 68. When he resigned soon thereafter, allegedly under pressure, he questioned whether “poor communication . . . , inadequate training,” or his personality had rendered him unqualified for the job. Id., at 85.

One of the hiring supervisors testified that she was never given any guidelines or instructions on her hiring and promotion decisions. App. 161-162. Another testified that he could not attribute specific weight to any particular factors considered in his promotion decisions because “fifty or a hundred things” might enter into such decisions. Id., at 135.

Because the establishment of business necessity is necessarily ease specific, I am unwilling to preclude the possibility that an employer could ever establish that a successful selection among applicants required granting the hirer near-absolute discretion. Of course, in such circumstances, the employer would bear the burden of establishing that an absence of specified criteria was necessary for the proper functioning of the business.

See Atonio v. Wards Cove Packing Co., 810 F. 2d 1477, 1485 (CA9) (en banc) (“It would subvert the purpose of Title VII to create an incentive to abandon efforts to validate objective criteria in favor of purely discretionary hiring methods”), on return to panel, 827 F. 2d 439 (1987), cert. denied, No. 87-1388, 485 U. S. 989 (1988), cert. pending, No. 87-1387; Miles v. M.N.C. Corp., 750 F. 2d 867, 871 (CA11 1985) (subjective assessments involving white supervisors provide “ready mechanism” for racial discrimination). Cf. Doverspike, Barrett, & Alexander, The Feasibility of Traditional Validation Procedures for Demonstrating Job-Relatedness, 9 Law & Psychology Rev. 35, 35 (1985) (noting that “litigious climate has resulted in a decline in the use of tests and an increase in more subjective methods of hiring”).

Nor can the requirement that a plaintiff in a disparate-impact case specify the employment practice responsible for the statistical disparity be turned around to shield from liability an employer whose selection process is so poorly defined that no specific criterion can be identified with any certainty, let alone be connected to the disparate effect. Cf. ante, at 994 (plaintiff is responsible “for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities”).