# Appendix — Albemarle Paper Co. v. Moody > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0184%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 422 U.S. 405 ## Text VOLUME II (In two volumes) Pagys 273-38 me Court. U. S. Le OD FEB 13 1975 APPENDIX MICHAEL RODAK, JR., CLERK In the Supreme Court of the Gnited States Octoser TERM 1974 No. 74-389 No. 74-428 ALBERMARLE PAPER Co., Petitioner V. JoserpH P. Moopy, ET AL. HA.Lirax Loca 425, PAPERMAKERS AND PAPERWORKERS, Petitioner V. JoserH P. Moopy, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITIONS FOR WRITS OF CERTIORARI FILED OCTOBER 7, 1974 AND OCTOBER 15, 1974 CERTIORARI GRANTED DECEMBER 16, 1974 Be SR thle ihe In The SUPREME COURT OF THE UNITED STATES OctToBER TERM 1974 No. 74-389 No. 74-428 ALBERMARLE PAPER Co., Petitioner v. JosepH P. Moopy, ET AL., Respondents HaiFrax Loca 425, PAPERMAKERS AND PAPERWORKERS, Petitioner v. JoserpH P. Moopy, Et AL., Respondents ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT INDEX App. Page ET l Complaint Filed August 25, 1966 ........2.....-cccceccceocsesessseccssevsesssscsess 6 Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment, filed November 22, 1966 .20........2.....ccceccceceeseeeeeeeeeees 11 Memorandum Opinion and Order, filed July 6, 1967 -......0...2....... 16 App. Page Answer, Albemarle Paper Company (Virginia), filed July 26, OI onceccencoceseevcncecenscnneneencsennsenenennstnenanssan 21 Answer, Halifax Local No. 425, filed July 28, an 25 Letter from Francis V. Lowden, Jr. to The Honorable John D. Larkins, Judge, filed June 12, 1970 ......... a 28 Opinion and Order on Motion to Add or Join, filed September 29, 197 onn.naecnesnesoneensssnssnssnnesessnsensennssnsesnssnesnsenscsnssnssnesnnssananeenseene 30 Amended Order, filed October 15, 1970 ...........-------------e+0+++ sseabeneaite 40 Answer and Cross-Claim, Ethyl Corporation, filed December 28, BO ac ececcecevcecereceersoscsnscnsstneneseersatecssengeeteninssesesstasessntenseeesneaes 41 Order on Supplemental Interrogatory, filed May 28, 1971 ..........-. Ad Order on Supplemental Interrogatory and Designation of the Class, filed Jume 15, 1971 ......------------e-se-ssnseneseessessnssensenennennnnnes 45 Order on Communications with Class Members, filed June 18, BOTY eececececececcecenecosecseosecesesosesnscnsensensscsnssasenesnsnenensnensnseasenasassenets 48 Order on Notice to the Class, filed July 8, _ a 50 Notice to Class Members (Exhibit A to Order of July 8, 1971) ... 53 Motion for Leave of Counsel of Plaintiffs to Communicate with Class Members, filed July 14, 1971 -.......----------0) reer 57 Motion for Clarification, filed July 14, 1971 ........-------------seeseeee 6A Motion for Severance and the Appointment of a Master, filed July 14, 1971 -......nn--ecccccnsseeeesnnseseeenneresecennnennnnnssaeennnsnssencnnnaenssnsas 68 Proofs of Claims, filed July 15, 19, 21, 23, and 26, 1971 ............ 70 Stipulation of Facts, filed July 26, 19710 0.....2......eeeecccecnecnneeseeees 86 Trial of the Action held before the Hon. F. T. Dupree, U.S. District Judge for the Eastern District of North Carolina, Wilson Division Commencing on July 26, 1971 at Raleigh, North Carolina: TEE csicedeeestcsiahenstsieatinicstchiaitiptiiaineniaanieninnenientenintinensainenesummniane 113 Colloquy between the Court and Counsel [Tr. 11] ................ 114 Testimony of James Alfred Jones I, SUITE - sdestsieiascibahideinpiniihsidteiiaeptacnintatantenenerineinanencitenninieans 119 Cross, Defendant Employer (DE) [169].........0..0.0000...... 125 Testimony of Ethoria Jones NEI UNEP canscsesesseisiasiabesnnenscenscstoseunnsnepasscesemeumesenntiinnesginnets 126 ee 127 Cross, Defendant Union, (DU) [202] ........000. 127 Transcript of Proceedings Held Before the Hon. F. T. Dupree, Jr., U.S. District Judge for the Eastern District of North Carolina, on July 27, 1971: I ecrrctccnncestincenvsamnsiesethinitieniaieementiiennsnemecscsnmpennagese 128 Testimony of Philmore Taylor SCTE III sicssscositesinesinhiahinnemtanseneeniicnianbsatennsnetinetntonsconens 128 Testimony of Mack Coy Boone ti sediniciscniengneienonmmenneenneminennetie ae 129 tic catiacdidinleaiabedapetinenbinniaimnannennmcciiins 129 Testimony of David Harding Silica ceitarensiinconccchinntsinevetinnemernemecstnenesnnemnnts 129 IIE HII | cccereesnsecnsnssccecenestesvnenensseenesatemnenineanenisnns 130 Testimony of Johnny Easter ATT Se 130 i cic cenabnapeentiltRtineneenpncesmnnneeeenentantanetinaneeinenene 130 App. Page Transcript of Proceedings Held Before the Hon. F. T. Dupree, Jr., U.S. District Judge for the Eastern District of North Carolina, on July 28, 1971: Appearances ......-.-------cnssseessssseenssssenneneennsssennnnsennnnssssnnsnseeeeneesenns 132 Testimony of David Mills (upon oral deposition) [389] .....--- 132 Testimony of Arnold Brown (upon oral deposition) [463] .... 142 Testimony of Curtis V. Bullock (upen oral deposition) $503) ---..-coonn----ecennsosseeseesnnseseeennnnsssseennmnnencnennnssneeeee enn 148 Testimony of John E. Bryan, Jr. (upon oral deposition ) SOO) cancers ereeenneeenenenn ne 148 Transcript of Proceedings Held Before the Hon. F. T. Dupree, U.S. District Judge for the Eastern District of North Carolina on July 29, 1971: APPEAFAMCes .....---------eeeennnnsseeeeeenenssnsseeeeeeennnenssnccnenenensnssenneeenenae ses 150 Testimony of Ernest Garner Cross, DE [618] .......----------------s-seserssnsensenssnssnnsensaneenennenasenes 150 Cross, DU [624] ...-..--------------su-sasee-sossossnsenssnnsnssensnsnenenssensene 151 Testimony of Willie H. Mason Direct [634] ——-.-------n--- PERSONNEL TEST (Please Print) READ THIS PAGE CAREFULLY. DO EXACTLY AS YOU ARE TOLD. DO NOT TURN OVER THIS PAGE UNTIL YOU ARE INSTRUCTED TO DO SO. This is a test of problem solving ability. It contains various types of questions. Below is a sample question correctly filled in: REAP is the opposite of 1 obtain, 2 cheer, 3 continue, 4 exist, 5 sow Cs) The correct answer is “sow.” (It is helpful to underline the correct word.) The correct word is numbered 5. Then write the figure 5 in the brackets at the end of the line. Answer the next sample question yourself. Gasoline sells for 23 cents per gallon. What will 4 gallons cost? | The correct answer is 92¢. There is nothing to underline so just place “92¢” in the brackets. Here is another example: MINER MINOR — Do these words have 1 similar meaning, 2 contradictory, 3 mean neither same nor opposite? 00... - The correct answer is “mean neither same nor opposite” which is number 3 so all you have to do is place a figure “3” in the brackets at the end of the line. When the answer to a question is a letter or a number, put the letter or number in the brackets. All letters should be printed. This test contains 50 questions. It is unlikely that you will finish all of them, but do your best. After the examiner tells you to begin, you will be given exactly 12 minutes to work as many as you can. Do not go so fast that you make mistakes since you must try to get as many right as possible. The questions become increasingly difficult, so do not skip about. Do not spend too much time on any one problem. The examiner will not answer any questions after the test begins. Now, lay down your pencil and wait for the examiner to tell you to begin! Do not turn the page until you are told to do so. Copyright 1942 by E. F. Wonderli® Published by E. F. Wonderlic, P. O. Box 7, Northfield, Illinois. All rights reserved, including the right to reproduce this test or any part thereot in any form by mimeograph, hectograph, or in any other way, whether the reproductions are sold or are BEST COPY AVAWABLE | PRINTED IN U.S.A. log “ddy c ‘ON LIGIHXY S44dLLNIV 1d 1. PAIN is the opposite of 1 poison, 2 torment, 3 agony, 4 comfort, S punish . ——————— 2. One number in the following series 1s omitted. What should that number be? a a 6 COU OS eee = 3. GENEROUS is the opposite of : 1 noble, 2 popular. 3 moody, 4 neighborly, «= 5 stimgy 22... = 4. LUXURY is the opposite of : 1 plenty, 2 rapture, 3 poverty, 4 devotion, 5 faibure 2m = S. In the following set of words. which word is different from the others? 1 Methodist. 2 Easter, 3 Lutheran, 4 Catholic, 5S Quaker... [-—] 6& LINGER is the opposite of 1 maintain, 2 hasten. 3 require. 4 remain, (OEE 7. Assume the first two statements are true. Is the final one: 1 true, 2 false. 3 not cer- tain? The violim is in nae SED Gib Grae Se aS Se as the =? The harp is in tune with the violin... ... » Gen 8 Suppose you arrange the following words so that ‘they make 1 a complete sentence. If it | is a true statement, mark (T) im the brackets; if false, put an a“ s in the brackets. fuel wood are Coal and for used 7 —— 9. FURTHER FARTHER—Do these words have 1 similar meaning. 2 contradictory, 3 mean neither same nor opposite? ——_— 10. A man’s cer traveled 16 miles in 30 minutes. How many miles an hour was it traveling? _... = 11. Are the meanings of the following sentences: 1 similar, 2 contradictory, 3 neither similar nor contradictory? A faithful friend is a strong defense. They never taste who always drink. ——_— 12. A dealer bought some cars for $2.000. He sold them for $2,400, scence $50 ¢ on each ¢ car. How many cars were involved? __.. —_ ————— 13. How many of the six pairs of items listed Retew ( are exact * duplicates? stetataneatiiniatinienmanans = 3421 1243 21212 21212 $58956 558956 10120210 10120710 612986895 612986896 356471201 356571201 14. A boy is 6 years old and his sister is twice as old. When the boy is 10 years old, what will be EEE LE SEL) ELLE I ELLE AES TT AS I ¢.....} 1S. In the following set of words, which word is different from the others? 1 armada, 2 band, 3 brood, 4 boy, S crowd ... = 16. Suppose you arranged the following words so that they make a true statement. ‘Then print ‘the last letter in the last word as the answer to this anaes 1s world The round _..... Ast ST, CT 17. VOCATION WORK—Do these ant owe 1 similar meaning, 2 contradictory, 3 neither same nor opposite? 0... [] 18. Look at the row of numbers below. What number should come next? 81 27 9 3 1 % ?. oo Gen 19. This geometric figure can be divided by : a 1 Straight line into two parts which will ‘fit together in ina certain way to make a perfect square. Draw such a line e by i joining two of the numbers. Then write the numbers as the answer soustonaaiivaebepitiantiretities sence fame we eee 20. How many of the five items listed below are exact duplicates of each other? ..................... = Patterson, A. J. Paterson, A. J. - Smith, A. O. Smith, O. A. Bieed, O. M. Bleed. O. M. Petersen, O. W. Peterson. O. W. Cash, 1. O. Cash, 1. O. 21. Suppose you arrange the following words so that they make a complete sentence. If it is a true statement. mark (T) in the brackets; if false. put an (F) in the brackets. all are Americans countries of citizens OTTER ON 22. Assume that the first 2 statements are true. Is the final statement: 1 true, 2 false. 3 not certain? : All red-headed boys are mischievous. Charles is red-headed. He is mischievous.._. = 23. Two of the following proverbs have similar meanings. Which ones are a — = 1. A friend in need is a friend in deed. 2. Fields have eves and woods have ears. 3. A fox is not cauctht twice in a snare 4. A setting ben never ects fat. $. Arrolling stone gathers no moss. 24. A rectangular bin completely filled, holds 900 cubic feet of lime. If the bin is 10 feet long and 10 feet wide, how deep 1s it? . ieeeenntecentetatiieeees NN LETROREER SS z0g “ddy Ferm B 25. A watch lost 1 minute and 12 seconds in 24 days. How many seconds did it lose per day? = 26. Assume that the first 2 statements are true. Is the final statement: 1 true, 2 false, 3 not certain? Most business men are progressive. Most business men aie fic pevuceuns. Some progressive people are Republicams. ooo ceceeees-veneeevevesvevereesesveses snteiineaiehbcibiaenthpaniieeaieianenen = 27. Gasoline is 15 cents a gallon. How many gallons can you buy fora dollar? ..ss—i—sisiéw 28. Are the meanings of the following sentences: 1 similar, 2 contradictory, 3 neither similar nor contradictory? Every pumpkin is known by its stem. Like father, like son. = 29. If 2’ tons of coal cost $20, what will 3'4 toms cost? 200 = 30. How many of the five pairs of items listed below are exact duplicates? = Silverstein, M. O. Silverstien, M. O. Harrisberg, L. W. Harri L.M. Seirs, J. C. Sears, J Wood, A. B. Woods, A. B. Johnson, M. D. Johnson, M. D. 31. Two men caught 75 fish. A caught four times as many as B. How many fish did B catch? _ = 32. In the following set of words, which word is different from the others? 3 faculty, 2 fleet, 3 flock, 4 firiemd, — S Gree nn... ccc eceeccccccsssecesccsessnveceressessveee = 33. Assume the first 2 statements are true. Is the final one: ltrue, 2 false, 3 not certain? Bert greeted Alice. Alice greeted Lou. Bert did not greet Lou. ss = 34. Which number in the following group of numbers represents the smallest amount? 35. A side of beef weighs 250 Ibs. The average daily beef consumption of a family is 1% Ibs. 36. Are the meanings of the following sentences: 1 similar, 2 contradictory, _ "3 neither similar nor contradictory? Friends agree best at a distance. Friends are one soul in two bodies... = 37. How many square yards are there in a floor which is 9 feet long by 21 feet wide? = 38. One number in the following series does not fit in with the pattern set by the others. What should that number be? 8 9 12 13 16 17 (ee sieiaialaiie = 39. Three of the following 5 parts can be fitted together in such a way to make a triangle. Which Ad Gwo 40. A soldier shooting at a target hits it 40% of the time. How many times must he shoot in order (—] bE TE EEE I LET: LTTE terre aD _ a 41. Which number in the following series represents the smallest amount? OR Sh GR ENN ROR nig = 42. CENSOR CENSURE—Do these words have 1 similar meaning, 2 contradictory, 3 mean neither same nor opposite? __ 43. Are the meanings of the following sentences: 1 similar, 2 contradictory, 3 neither similar nor contradictory? A chip off the old block. A beggar's son struts like a ae 44. A clock was exactly on time at noon on Monday. At 8 P.M. on Tuesday it was 32 seconds slow. At that same rate, how much did it lose im hour? ee ees eee teeters -_ 4S. Are the meanings of the following sentences: 1 similar, 2 contradictory, 3 neither similar nor contradictory? He who demands, does not command. He that complies against LLL LALLA LEE TIEN LLIN aia = 46. For $2.40 a grocer buys a case of oranges which contains 12 dozen. He knows that two dozen will spoil before he sells them. At what price per dozen must he sell the good ones to gain '/s Where there's a will there is a way. The gods sell everything for labor. = 48. The hours of daylight and darkness are nearest equal in 1 June, 2 September, 3 May, 4 December... = ——_— —e = BEST COPY AVALABLE 40613 o-12 50. Three men form a partnership and agree to divide the profits equally. X invests $5500, Y imvests $3500, and Z invests $1000. If the profits are $3000, how much less docs X receive than if the profits were divided in proportion to the amount invested? = g0¢ ‘ddy FORM B OS9S “OS ON UONsend 4 Question No. 1. 91 5-11 SCORING STENCIL FOR THE WONDERLIC PERSONNEL TEST Answers must be exactly the same as shown here. There is only one correct answer for each question. Items omitted are counted wrong. The final score is the total number of questions answered correctly in exactly 12 minutes. FOR. — ae Se 8. $B ow G - App. 304 lor T 9 ft. FORA B App. 305 PLAINTIFFS’ EXHIBIT NO. 27B FEDERAL REGISTER Volume 35 - Number 149 Saturday, August 1, 1970 - Washington, D. C. Pages 12311-12379 Title 29—Labor Chapter XIV—Equal Employment Opportunity Commission Part 1607—Guidelines on Employee Selection Procedures By virture of the authority vested in it by section 713 of title VII of the Civil Rights Act of 1964, 42 U.S.C., sec- tion 2000e-12, 78 Stat. 265, the Equal Employment Oppor- tunity Commission hereby issues ‘Title 29, Chapter XIV, § 1607 of the Code of Federal Regulations. These Guidelines on Employee Selection Procedures supersede and enlarge upon the Guidelines on Employment Testing Procedures, issued by the Equal Employment Op- portunity Commission on August 24, 1966. Because the ma- terial herein is interpretive in nature, the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rule making, opportunity for public par- ticipation, and delay in effective date are inapplicable. The Guidelines shall be applicable to charges and cases presently pending or hereafter filed with the Commission. App. 306 Sec. 1607.1 Statement of purpose. 1607.2 “Test” defined. 1607.3 Discrimination defined. 1607.4 Evidence of validity. 1607.5 Minimum standards of validation. 1607.6 Presentation of validity evidence. 1607.7. Use of other validity evidence. 1607.8 Assumption of validity. 1607.9 Continued use of tests. 1607.10 Employment agencies and employment services. 1607.11 Disparate treatment. 1607.12 Retesting. 1607.13 Other selection techniques. 1607.14 Affirmative action. Authority: The provisions of this Part 1607 issued under Sec. 713, 73 Stat. 265, 42 U.S.C. sec. 2000e-12. § 1607.1 Statement of purpose. (a) The guidelines in this part are based on the belief that properly validated and standardized employee selection procedures can significantly contribute to the implementa- tion of non-discriminatory personnel policies, as required by title VII. It is also recognized that professionally developed tests, when used in conjunction with other tools of personnel assessment and complemented by sound pro- App. 307 grams of job design, may significantly aid in the develop- ment and maintenance of an efficient work force and, in- deed, aid in the utilization and conservation of human re- sources generally. (b) An examination of charges of discrimination filed with the Commission and an evaluation of the results of the Commission’s compliance activities has revealed a decided increase in total test usage and a marked increase in doubt- ful testing practices which, based on our experience, tend to have discriminatory effects. In many cases, persons have come to rely almost exclusively on tests as the basis for mak- ing the decision to hire, transfer, promote, grant member- ship, train, refer or retain, with the result that candidates are selected or rejected on the basis of a single test score. Where tests are so used, minority candidates frequently ex- perience disproportionately high rates of rejection by fail- ing to attain score levels that have been established as mini- mum standards for qualification. It has also become clear that in many instances persons are using tests as the basis for employment decisions with- out evidence that they are valid predictors of employee job performance. Where evidence in support of presumed rela- tionships between test performance and job behavior is lacking, the possibility of discrimination in the application of test results must be recognized. A test lacking demon- strated validity (i.e., having no known significant relation- ship to job behavior) and yielding lower scores for classes protected by title VII may result in the rejection of many who have necessary qualifications for successful work per- formance. (c) The guidelines in this part are designed to serve as a workable set of standards for employers, unions and em- App. 308 ployment agencies in determining whether their selection procedures conform with the obligations contained in title VII of the Civil Rights Act of 1964. Section 703 of title VII places an affirmative obligation upon employers, labor unions, and employment agencies, as defined in section 701 of the Act, not to discriminate because of race, color, re- ligion, sex, or national origin. Subsection (h) of section 703 allows such persons “* * * to give and to act upon the re- sults of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.” § 1607.2 “Test” defined. For the purpose of the guidelines in this part, the term “test” is defined as any paper-and-pencil or performance measure used as a basis for any employment decision. The ‘guidelines in this part apply, for example, to ability tests which are designed to measure eligibility for hire, transfer, promotion, membership, training, referral or retention. This definition includes, but is not restricted to, measures of general intelligence, mental ability and learning ability ; specific intellectual abilities; mechanical, clerical and other aptitudes; dexterity and coordination; knowledge and pro- ficiency; occupational and other interests; and attitudes, personality or temperament. The term “test” includes all formal, scored, quantified or standardized techniques of assessing ‘ob suitability including, in addition to the above, specific qualifying or disqualifying personal history or back- ground requirements, specific educational or work history requirements, scored interviews, biographical information blanks, interviewers’ rating scales, scored application forms, etc. App. 309 § 1607.3 Discrimination defined. The use of any test which adversely affects hiring, pro- motion, transfer or any other employment or membership opportunity of classes protected by title VII constitutes dis- crimination unless: (a) the test has been validated and evi- dences a high degree of utility as hereinafter described, and (b) the person giving or acting upon the results of the particular test can demonstrate that alternative suitable hir- ing, transfer or promotion procedures are unavailable for his use. § 1607.4 Evidence of validity. (a) Each person using tests to select from among candi- dates for a position or for membership shall have available for inspection evidence that the tests are being used in a manner which does not violate § 1607.3. Such evidence shall be examined for indications of possible discrimination, such as instances of higher rejection rates for minority candi- dates than nonminority candidates. Furthermore, where technically feasible, a test should be validated for each mi- nority group with which it is used: that is, any differential rejection rates that may exist, based on a test, must be rele- vant to performance on the jobs in question. (b) The term “technically feasible’ as used in these guidelines means having or obtaining a sufficient number of minority individuals to achieve findings of statistical and practical significance, the opportunity to obtain un- biased job performance criteria, etc. It is the responsibility of the person claiming absence of technical feasibility to positively demonstrate evidence of this absence. App. 310 (c) Evidence of a test’s validity should consist of em- perical data demonstrating that the test is 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. (1) If job progression structures and seniority provi- sions are so established that new employees will probably, within a reasonable period of time and in a great majorty of cases, progress to a higher level, it may be considered that candidates are being evaluated for jobs at that higher level. However, where job progression is not so nearly automatic, or the time span is such that higher level jobs or employees’ potential may be expected to change in significant ways, it shall be considered that candidates are being evaluated for a job at or near the entry level. This point is made to under- score the principle that attainment of or performance at a higher level job is a relevant criterion in validating employ- ment tests only when there is a high probability that persons employed will in fact attain that higher level job within a reasonable period of time. (2) Where a test is to be used in diferent units of a multiunit organization and no significant differences exist between units, jobs, and applicant populations, evidence obtained in one unit may suffice for the others. Similarly, where the validation process requires the collection of data throughout a multiunit organization, evidence of validity specific to each unit may not be required. There may also be instances where evidence of validity is appropriately ob- tained from more than one company in the same industry. Both in this instance and in the use of data collected throughout a multiunit organization, evidence of validity App. 311 specific to each unit may not be required: Provided, That no significant differences exist between units, jobs, and appli- cant populations. § 1607.5 Minimum standards for validation. (a) For the purpose of satisfying the requirements of this part, empirical evidence in support of a test’s validity must be based on studies employing generally accepted pro- cedures for determining criterion-related validity such as those described in “Standards for Educational and Psycho- logical Tests and Manuals” published by American Psycho- logical Association, 1200 17th Street NW., Washington, D.C. 20036. Evidence of content or construct validity, as defined in that publication, may also be appropriate where criterion-related validity is not feasible. However, evidence for content or construct validity should be accompanied by sufficient information from job analysis to demonstrate the relevance of the content (in the case of job knowledge or proficiency tests) or the construct (in the case of trait meas- ures). Evidence of content validity alone may be accept- able for well-developed tests that consist of suitable samples of the essential knowledge, skills or behaviors composing the job in question. The types of knowledge, skills or be- haviors contemplated here do not include those which can be acquired in a brief orientation to the job. (b) Although any appropriate validation strategy may be used to develop such empirical evidence, the following minimum standards, as applicable, must be met in the re- search approach and in the presentation of results which constitute evidence of validity: (1) Where a validity study is conducted in which tests are administered to applicants, with criterion data collected App. 312 later, the sample of subjects must be representative of the normal or typical candidate group for the job or jobs in question. This further assumes that the applicant sample is representative of the minority population available for the job or jobs in question in the local labor market. Where a validity study is conducted in which tests are adminis- tered to present employees, the sample must be representa- tive of the minority groups currently included in the appli- cant population. If it is not technically feasible to include minority employees in validation studies conducted on the present work force, the conduct of a validation study with- out minority candidates does not relieve any person of his subsequent obligation for validation when inclusion of mi- nority candidates becomes technically feasible. (2) Tests must be administered and scored under con- trolled and standardized conditions, with proper safeguards to protect the security of test scores and to insure that scores do not enter into any judgments of employee ade- quacy that are to be used as criterion measures. Copies of tests and test manuals, including instructions for adminis- tration, scoring, and interpretation of test results, that are privately developed and/or are not available through normal commercial channels must be included as a part of the vali- dation evidence. (3) The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques, the appraisal form(s) and instructions to the rater(s) must be included as a part of the validation evi- dence. Such criteria may include measures otHer than ac- tual work proficiency, such as training time, supervisory App. 313 ratings, regularity of attendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses. (4) In view of the possibility of bias inherent in sub- jective evaluations, supervisory rating techniques should be carefully developed, and the ratings should be closely ex- amined for evidence of bias. In addition, minorities might obtain unfairly low performance criterion scores for rea- sons other than supervisors’ prejudice, as, when, as new employees, they have had less opportunity to learn job skills. The general point is that all criteria need to be examined to insure freedom from factors which would unfairly depress the scores of minority groups. (5) Differential validity. Data must be generated and re- sults separately reported for minority and nonminority groups wherever technically feasible. Where a minority group is sufficiently large to constitute an identifiable factor in the local labor market, but validation data have not been developed and presented separately for that group, evidence of satisfactory validity based on other groups will be re- garded as only provisional compliance with these guide- lines pending separate validation of the test for the minority group in question. (See § 1607.9). A test which is differ- entially valid may be used in groups for which it is valid but not for those in which it is not valid. In this regard, where a test is valid for two groups but one group charac- teristically obtains higher test scores than the other with- out a corresponding difference in job performance, cutoff scores must be set so as to predict the same probability of job success in both groups. (c) In assessing the utility of a test the following con- siderations will be applicable : App. 314 (1) The relationship between the test and at least one relevant criterion must be statistically significant. This ordi- narily means that the relationship should be sufficiently high as to have a probability of no more than 1 to 20 to have occurred by chance. However, the use of a single test as the sole selection device will be scrutinized closely when that test is valid against only one component of job performance. (2) In addition to statistical significance, the relation- ship between the test and criterion should have practical significance. The magnitude of the relationship needed for practical significance or usefulness is affected by several factors, including: (i) The larger the proportion of applicants who are hired for or placed on the job, the higher the relationship needs to be in order to be practically useful. Conversely, a relatively low relationship may prove useful when propor- tionately few job vacancies are available; (ii) The larger the proportion of applicants who become satisfactory employees when not selected on the basis of the test, the higher the relationship needs to be between the test and a criterion of job success for the test to be practi- cally useful. Conversely, a relatively low relationship may prove useful when proportionately few applicants turn out to be satisfactory ; (iii) The smaller the economic and human risks involved in hiring an unqualified applicant relative to the risks en- tailed in rejecting a qualified applicant, the greater the re- lationship needs to be in order to be practically useful. Con- versely, a relatively low relationship may prove useful when the former risks are relatively high. App. 315 § 1607.6 Presentation of validity evidence. The presentation of the results of a validation study must include graphical and statistical representations of the re- lationships between the test and the criteria, permitting judgments of the test’s utility in making predictions of fu- ture work behavior. (See § 1607.5(c) concerning assessing utility of a test.) Average scores for all tests and criteria must be reported for all relevant subgroups, including mi- nority and nonminority groups where differential validation — is required. Whenever statistical adjustments are made in validity results for less than perfect reliability or for re- striction of score range in the test or the criterion, or both, the supporting evidence from the validation study must be presented in detail. Furthermore, for each test that is to be established or continued as an operational employee selec- - tion instrument, as a result of the validation study, the minimum acceptable cutoff (passing) score on the test must be reported. It is expected that each operational cutoff score will be reasonable and consistent with normal expec- tations of proficiency within the work force or group on which the study was conducted. § 1607.7 Use of other validity studies. In cases where the validity of a test cannot be determined pursuant to § 1607.4 and § 1607.5 (e.g., the number of subjects is less than that required for a technically adequate validation study, or an appropriate criterion measure can- not be developed), evidence from validity studies conducted in other organizations, such as that reported in test manuals and professional literature, may be considered acceptable when: (a) The studies pertain to jobs which are comparable (i.e., have basically the same task elements), and (b) there App. 316 are no major differences in contextual variables or sample composition which are likely to significantly affect validity. Any person citing evidence from other validity studies as evidence of test validity for his own jobs must substantiate in detail job comparability and must demonstrate the ab- sence of contextual or sample differences cited in para- graphs (a) and (b) of this section. § 1607.8 Assumption of validity. (a) Under no circumstances will the general reputation of a test, its author or its publisher, or casual reports of test utility be accepted in lieu of evidence of validity. Spe- cifically ruled out are: assumptions of validity based on test names or descriptive labels; all forms of promotional litera- ture; data bearing on the frequency of a test’s usage; testi- monial statements of sellers, users, or consultants; and other nonemperical or anecdotal accounts of testing prac- tices or testing outcomes. (b) Although professional supervision of testing ac- tivities may help greatly to insure technically sound and nondiscriminatory test usage, such involvement alone shall not be regarded as constituting satisfactory evidence of test validity. § 1607.9 Continued use of tests. Under certain conditions, a person may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for ex- ample, determination of criterion-related validity in a spe- cific setting is practicable and required but not yet obtained, the use of the test may continue: Provided: (a) The person App. 317 can cite substantial evidence of validity as described in § 1607.7 (a) and (b); and (b) he has in progress validation procedures which are designed to produce, within a reason- able time, the additional data required. It is expected also that the person may have to alter or suspend test cutoff scores so that score ranges broad enough to permit the identification of criterion-related validity will be obtained. § 1607.10 Employment agencies and employment services. (a) An employment service, including private employ- ment agencies, State employment agencies, and the U.S. Training and Employment Service, as defined in section 701(c), shall not make applicant or employee appraisals or referrals based on the results obtained from any psycho- logical test or other selection standard not validated in ac- cordance with these guidelines. (b) An employment agency or service which is requested by an employer or union to devise a testing program is re- quired to follow the standards for test validation as set forth in these guidelines. An employment service is not relieved of its obligation herein because the test user did not request such validation or has requested the use of some lesser standard than is provided in these guidelines. (c) Where an employment agency or service is requested only to administer a testing program which has been else- where devised the employment agency or service shall re- quest evidence of validation, as described in the guidelines in this part, before it administers the testing program and/or makes referral pursuant to the test results. The em- ployment agency must furnish on request such evidence of validation. An employment agency or service will be ex- pected to refuse to administer a test where the employer or App. 318 union does not supply satisfactory evidence of validation. Reliance by the test user on the reputation of the test, its author, or the name of the test shall not be deemed sufficient evidence of validity (see § 1607.8(a)). An employment agency or service may administer a testing program where the evidence of validity comports with the standards pro- vided in § 1607.7. § 1607.11 Disparate treatment. The principle of disparate or unequal treatment must be distinguished from the concepts of test validation. A test or other employee selection standard—even though validated against job performance in accordance with the guidelines in this part—cannot be imposed upon any individual or class protected by title VII where other employees, applicants or members have not been subjected to that standard. Disparate treatment, for example, occurs where members of a minority or sex group have been denied the same employment, pro- motion, transfer or membership opportunities as have been made available to other employees or applicants. Those em- ployees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of dis- crimination. Thus, no new test or other employee selection standard can be imposed upon a class of individuals pro- tected by title VII who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force. § 1607.12 Retesting. Employers, unions, and employment agencies should pro- vide an opportunity for retesting and reconsideration to App. 319 earlier ‘failure’ candidates who have availed themselves of more training or experience. In particular, if any applicant or employee during the course of an interview or other em- ployment procedure claims more education or experience, that individual should be retested. § 1607.13 Other selection techniques. Selection techniques other than tests, as defined in § 1607.2, may be improperly used so as to have the effect of discriminating against minority groups. Such techniques in- clude, but are not restricted to, unscored or casual interviews and unscored application forms. Where there are data sug- gesting employment discrimination, the person may be called upon to present evidence concerning the validity of his unscored procedures as well as of any tests which may be used, the evidence of validity being of the same types re- ferred to in $§ 1607.4 and 1607.5. Data suggesting the pos- sibility of discrimination exist, for example, when there are differential rates of applicant rejection from various minority and nonminority or sex groups for the same job or group of jobs or when there are disproportionate repre- sentations of minority and nonminority or sex groups among present employees in different types of jobs. If the person is unable or unwilling to perform such validation studies, he has the option of adjusting employment proce- dures so as to eleminate the conditions suggestive of employ- ment discrimination. § 1607.14 Affirmative action. Nothing in these guidelines shall be interpreted as di- minishing a person’s obligation under both title VII and Executive Order 11246 as amended by Executive Order App. 320 11375 to undertake affirmative action to ensure that appli- cants or employees are treated without regard to race, color, religion, sex, or national origin. Specifically, the use of tests which have been validated pursuant to these guidelines does not relieve employers, unions or employment agencies of their obligations to take positive action in affording em- ployment and training to members of classes protected by title VII. The guidelines in this part are effective upon publication in the Federal Register. Signed at Wash'ngton, D.C., 21st day of July 1970. [Seal] William H. Brown, ITI, Chat man. [F.R. Doc. 70-9962 ; Filed, July 31, 1970; 8:40 a.m. App. 321 PLAINTIFFS’ EXHIBIT NO. 29 Federal Register Volume 33. - Number 186 Tuesday, September 24,1968 - Washington, D. C. Part II Department Of Labor Office of the Secretary Validation of Employment Tests by Contractors and Subcontractors Subject to the Provisions of Executive Order 11246 Department Of Labor Office of the Secretary Employment Tests By Contractors And Subcontractors Validation Validation of employment tests by contractors and subcon- tractors subject to the provisions of Executive Order 11246. 1. General. (a) The following order regarding the use of employment tests by contractors subject to the provisions of Executive Order 11246 is being issued in response to numerous requests for policy guidance by Government agencies and by contractors. (b) Two matters regarding selection procedures are of foremost concern to the Government: (1) Recognizing the importance of proper procedures in the utilization and con- servation of human resources generally, and (2) pointing out the possible adverse effects of improper procedures on the utilization of minority group personnel. App. 322 (c) The order is founded on the belief that properly validated and stardardized tesis, by virtue of their relative objectivity and freedom from the biases that are apt to characterize more subjective evaluation techniques, can contribute substantially to the implementation of equitable and nondiscriminatory personnel policies. Moreover, pro- fessionally developed tests, carefully used in conjunction with other tools of personnel assessment and complemented by sound programs of training and job design, can signifi- cantly aid in the development and maintenance of an efficient work force. (d) An examination by the Office of Federal Contract Compliance of compliance reviews of contractors has af- firmed the increasing reliance on tests in the conduct of personnel activities. In many cases contractors have come to rely almost exclusively on tests as the basis for making employment and promotion decisions, with candidates some- times selected or rejected on the basis of a single test score. The examination also disclosed that where employment tests are so used, minority candidates frequently experience dis- proportionately high rates of rejection through failing to attain score levels that have been established as minimum standards for qualification. (e) The examination further suggests that there has been a decided increase since 1963 in total test usage and a particularly notable increase in the incidence of doubtful testing practices which, experience indicates, tend to have racially discriminatory effects. These findings are particu- larly evident in testing programs related to blue-collar and clerical job categories. (f) It has become clear that in many instances con- tractors are using tests to determine qualification for hire, App. 323 transfer, or promotion without evidence that they are valid indices of performance potential. Where evidence in support of presumed relationships between test performance and job behavior is lacking, the possibility of discrimination in the application of test results must be recognized. A test lacking validity (i.e., having no significant relationship to job behavior) and yielding lower scores for minority can- didates may resultantly reject many who have probabilities of successful work performance equal to those of non- minoi ity candidates. (g) The order that follows, dealing with basic issues of validity and fairness in those selection programs in which blue-collar and clerical job categories are primarily in- volved, was developed only after extensive discussions of the many complex problems and technical considerations with test experts and personnel management specialists from both academia and industry. The provisions of the order are designed to serve as a workable set of criteria for agencies and contractors in determining whether or not selection practices are in compliance with Executive Order 11246. It is recognized that the tests used by the State Employ- ment Agencies should be similarly validated, and it is ex- pected that the U.S. Employment Service will expand, as necessary, its test validation program for State Agencies. It is also recognized that test usage, as well as test valid- ity, must be reviewed to determine its effect on the employ- ment of minorities. For example, a test may be suspect when it is given in a language in which a significant num- ber of minority applicants are not proficient and where language proficiency itself is not a bona fide requirement for the job. Similarly, a test or other qualification standard should not be used in a situation involving the transfer or App. 324 promotion of minority employees when such employees would already have occupied the positions involved without such qualifications were it not for past discriminatory practices. Specific directives concerning test usage will be issued by the Office of Federal Contract Compliance within a short time. 2. Evidence of validity. (a) It is directed that each agency require each contractor regularly using tests to select from among candidates for hire, transfer or promo- tion to jobs other than professional, technical and mana- gerial occupations (defined as occupational groups “0” and “1” in the “Dictionary of Occupational Titles,” Third Ed.) to have available for inspection, within a reasonable time, evidence that the tests are valid for their intended purposes. Such evidence shall be examined in compliance reviews for indications of possible discrimination, such as instances of higher rejection rates for minority candidates than nonminority candidates. (b) Evidence of a test’s validity should consist of em- pirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior comprising or relevant to the job(s) for which candidates are being evaluated. (1) If job progression structures and seniority provisions are so established that a new employee will probably, within a reasonable period of time and in a great majority of cases, progress to a higher level, it may be considered that candi- dates are being evaluated for jobs at that higher level. However, where job progression is not so nearly auto- matic, or the time span is such that higher level jobs may be expected to change in significant ways, it shall be con- App. 325 sidered that candidates are being evaluated for a job at or near the entry level. In the latter case, it would be appro- priate for a contractor to institute performance or other tests as a condition of promotion provided such tests also have been validated pursuant to the provisions of this order. (2) Where a test is to be used in different units of a multiunit organization and no significant differences exist between units, jobs, and applicant populations, evidence ob- tained in one unit may also suffice for the other. Similarly, where the validation process requires the collection of data throughout a multiunit organization, evidence of validity specific to each unit may not be required. 3. Minimum standards for validation. For the purpose of satisfying this order, empirical evidence in support of a test’s validity must be based on studies employing generally accepted procedures for determining criterion-related va- lidity, such as those described in the American Psycholog- ical Association’s “Standards for Education and Psycho- logical Tests and Manuals.” (Evidence of content or con- struct validity may also be appropriate where criterion- related validity is not technically feasible, but it should be accompanied by sufficient information from job analyses to demonstrate the relevance of the content in the case of job knowledge or proficiency tests or the construct in the case of trait measures.) Although any appropriate validation strategy may be used to develop such empirical evidence, the following minimum standards must be met by any approach used so far as applicable: (1) Where a predictive validity study is conducted, the sample of subjects must be representative of the normal or typical candidate group for the job(s) in question. Where a concurrent validity study is conducted, the sample should App. 326 be, so far as technically feasible, representative of the minority groups currently included in the candidate popu- lation. (2) Tests must be administered and scored under con- trolled and standardized conditions, with proper safeguards employed to protect the security of test scores and insure that scores do not enter into any judgments of individual adequacy that are to be used as criterion measures. (3) The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance, and tenure. In view of the possibility of bias inherent in subjective eval- uations, supervisory rating techniques should be developed carefully and the ratings themselves examined closely for evidence of bias. Whatever criteria are used, however, they should represent major or critical work behaviors as re- vealed by careful job analyses. (4) Presentations of the results of a validation study must include graphical and statistical representations of the relationships between the test and the criteria, permit- ting judgments of the test’s utility in making predictions of future work behavior. (5) Data must be generated and results reported sepa- rately for minority and nonminority groups wherever tech- nically feasible. * * * 6. Assumptions of validity. (a) Under no circumstances will the general reputation of a test, its author or its pub- lisher, or casual reports of test utility be accepted in lieu of evidence of validity. Specifically ruled out are: assumptions App. 327 of validity based on test names or descriptive labels, all forms of promotional literature, data bearing on the fre- quency of a test’s usage, testimonial statements of sellers or users, and other nonempirically based and ancedotal ac- counts of testing practices or testing outcomes. (b) Although professional supervision of testing activ- ities may help greatly to insure technically sound and non- discriminatory test usage, such involvement alone shall not be regarded as constituting satisfactory evidence of test validity. 7. Continued use of tests. Under certain conditions, a contractor may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for example, evidence of criterion- related validity in a specific setting is technically feasible and required but not yet obtained, the use of the test may continue Provided: (a) The contractor can cite substantial evidence of validity as described in section 5 above, and (b) he has in progress, validation procedures which are designed to produce, within a reasonable time, the addi- tional data required. It is expected also that the contractor will use cut-off scores which yield score ranges broad enough to permit the identification of criterion-related va- lidity. 8. Affirmative action. Nothing in this order shall be in- terpreted as diminishing a contractor’s obligation to under- take affirmative action to ensure that applicants and current employees are treated without regard to race, creed, color or national origin. Specifically the use of tests which have been validated pursuant to this order does not relieve the contractor of his obligation to take positive and affirmative action in affording employment and training to minority group personnel. App. 328 9. Definition of “test.” For the purpose of this order, “test” is defined as any paper-and-pencil or performance measure used to judge qualifications for hire, transfer or promotion. This definition includes, but is not restricted to, measures of general intelligence, mental ability, and learn- ing ability ; specific intellectual abilities ; mechanical, clerical and other aptitudes; knowledge and proficiency; occupa- tional and other interests; and personality or temperament. * * * > tae App. 329 PLAINTIFFS’ EXHIBIT NO. 32 Bryan Deposition The following excerpts are offered in evidence by plain- tiffs from the deposition of John E. Bryan, Jr., taken by plaintiffs December 13, 14 and 15, 1967. Each excerpt is preceded by a reference to the page of the transcript from which it is taken. Questions are by plaintiffs’ counsel unless otherwise noted. {pEP. pp. 499-510] © Want to explain your role? A_ Ah, it might help you to understand it if I told you about the, what I was told about the history of it, because this affected my role in what I did subsequent to my coming here. © In addition to the role that you played at Albemarle? A All right, ah, Bill Warren told me that ah, in about ’55, "56, just prior to the installation of the number four paper machine, which is the largest capacity paper machine, most modern that we have, that, ah, in conjunction with others in the plant management, he was asked to develop a testing program to get better qualified personnel to man this ma- chine when it went into operation. They had tried to get, ah, better qualified people when number three machine was installed, another large modern paper machine, a few years earlier and, ah, had tried to hire those from outside ah, that had a high school education, but it had not ah, worked out satisfactorily ; some of them even with a high school educa- tion didn’t succeed and ah,—and either quit, were let go, or downgraded or what not, and they didn’t make it on the machine, so they wanted to avoid this and Bill proceeded to discuss with other people in the company the possibility of App. 330 a testing program and to conduct a validation study. He had, ah, at that time a Master degree in Psychology from Purdue, and had specialized in this area. So, that he did an extensive validation study on the Beta and the Bennett Mechanical Comprehension test. He validated it, ah, against the performance of the incumbent employees at the time. He told me how he did that and so forth. Ah, from that time on, for positions on the general extra board and the Lines of Progression that led from that, they used the Beta and the Bennett Mechanical Comprehension, and for selection for the maintenance apprentice program when it was started a few years later. He found in his validation study that there was a significant correlation between the scores on Beta and performance on the job, and as a result of the statistical calculation you go through in validating tests, he established a cut-off score of, ah, a hundred on the Beta, now, I don’t recall the scores in regard to the Ben- netts, but, ah, they continued to use that then not only as for selecting people for the number four machine, but also as a pre-employment test from that time on, the Beta, and they were using Bennett Mechanical Comprehension. Now, after I came here, they used it to test and I talked to Bill Warren about it, and Bill at that time was manager of Labor Relations in Richmond. He was still with the company, and he told me, or I told him, ah, I just happened to mention one day that, ah, we were using a certain score which I don’t recall, as cut off on the Bennett for selection of new employees, and ah, he said, “You mean that you're, ah, you're disqualifying people if they don’t make that score?” And I said, “Yes, this is what they were doing when I got here, and I thought that was what you had established.” Well. it turned out that Bill said that he did not find what he considered to be a significant enough correlation between App. 331 ah, the scores on the Bennett, and performance on the job, even though it had a high face validity, and, ah, he thought that, ah, since he left down here that they were only using it as a guide to, ah, selection without any cut-off score, with- out disqualifying anybody as a result, but when I found that out, I suppose several of us were probably concerned about it and we decided, ah, that we should not even use it at all since its, ah, validity had not been established, in fact, it had, ah, ah, I believe Bill said somewhat of a negative cor- relation, so, we quit using the Bennett at that time. © What possible way do you use this Mr. Bryan? A That would have been, uh, probably in the latter part of 1963, and from my knowledge of tests that I acquired in studying psychology, I am very familiar or well, I won't say very familiar, I was familiar with the Beta, I had not ever used it before, but I had studied its origin and de- velopment, and usage and knew that it was a nonverbal in- telligence test. And I recommended and it was agreed by the local management that we should start using a Verbal Intelligence Test, as well as the Beta; we wanted to keep using the Beta because it had been validated locally, and I had had experience with using the Wonderlic before, which is a short form Verbal Intelligence Test, and knew that it had, uh, probably more validation studies behind it than any other short form Verbal Intelligence Test. So, after consultation we decided to institute the Wonderlic, in addi- tion to the Beta, in view of the fact that the mill had changed quite a bit and it had become exceedingly more complex in operation; whereas in early years the person who was in- telligent but had very little Verbal facilities acquired through formal education could, uh, perform satisfactorily on a lot of the jobs, uh, there were very few jobs and getting to be fewer and fewer jobs, in which this was possible, and App. 332 we needed people that were not only intelligent, but had a certain amount of, uh, intelligence and, uh, verbal facilities and this sort of thing to do more and more jobs, so, we felt, uh, in view of the fact that it is theoretically possible on the Beta to make a high score, uh, if you are illiterate, this was not the type of person that we needed today, to perform a good many skilled jobs, so, we instituted the Wonderlic and we did not, uh, validate it, uh, locally, pri- marily, because of the, the expense of conducting such a validation, and there were some other considerations, such as, uh, we didn’t know whether we would get the co-opera- tion of the employees that we’d need to validate it against in taking the test, and we certainly have to have that, so, we used National Norms and on my suggestion after study of the Wonderlic and Norms had been established na- tionally for skilled jobs, we developed a, uh, cut-off score of eighteen (18). © Now on the basis of this strike back, you said that uh, Mr. Warren told you that the Beta had been validated. Did he tell you what the validation process consisted of ? A Yes. © Would you explain to me what he told you? A Yes sir, uh, he uh, took uh, people already employed in the plant, in skilled jobs such as, uh, on number three machine. © With the plant, I mean with the Roanoke Rapids fa- cility? A Yes, this all pertains to Roanoke Rapids, part of the number three machine, and he took maintenance men, among others, and, uh, I’m sure, I think he may have taken, uh, pulp mill personnel and perhaps some from the wood yard, but the idea was to get people in the skilled jobs, and he explained what he was trying to do to these people and I think he said that he asked cooperation of the Union in App. 333 urging them to cooperate in the taking of the test. They were given the test on company time. Then he asked the super- visors over these individuals to use a rank order method of, uh, comparison in which the supervisor was given a deck of cards that had these people that he, with whom he was familiar with, or that he was familiar with their work he had supervised, and he was asked to rank them in order of, uh, his evaluation of their performance on skilled jobs if they were in the higher skilled jobs in the Line of Pro- gression or if they had not progressed that far, what he thought their potential was to perform when they got to those skilled jobs. They ranked them and this was, uh, I believe, uh, I’m not sure, I think Bill even, uh, ran these through the computer to get them tabulated and to get a rank order comparison with their test scores. He did end up with a comparison between the ranking by the super- visor and the test scores that they made and this is how he developed the, uh, fact that there was a high correlation between score on the Beta and the ranking by the super- visors, and he had as many supervisors evaluate an indi- vidual as had sufficient knowledge of that individual’s per- formance, for instance, uh, he’d have the first line super- visor evaluate the individual and then the next line super- visor would also evaluate the individual and in that way you got four tour foreman and these people had worked under different ones over the years so he would have each one evaluate the people they knew, so that he could get more than one supervisor’s evaluation. © Would the, did you get Mr. Warren to tell you that the validation study was conducted only as to the skilled personnel? A_ Yes, that is correct. Q Did Mr. Warren tell you that the sample that he used App. 334 included both Negro and white employment? A _ Uh, no, uh, matter of fact, uh, we didn’t discuss race at all. © Youdidn’t discuss raceatall? A Uh huh. © At the time that you were Personnel Manager, Mr. Byran, do you know whether they had Negroes in the skilled Lines of Progression? A Well, at the time that I came here I don’t recall there being any, in, uh, the skilled Lines of Progression. Since I have been in that job and my pres- ent job, there have been a number who have entered the skilled Lines of Progression. © Did Mr. Warren tell you that the validation study, tell you how long a period of time to make the validation study? A_ I don't recall him telling me specifically, but from all that he went through, I gathered that it took an amount of weeks or maybe it might have even taken a month or so, and he might have, it seems to me that, uh, it’s perhaps possible that he, uh, he ran the study with maybe the paper machine crew on one occasion and maybe the maintenance department, uh, a little later. I vaguely recall something to that effect. © Did Mr. Warren tell you that the validation study had been reduced to writing? A Well, uh, not exactly. In that he had not written the whole thing up, uh, in what you might do if you were doing it for purposes of a thesis, let’s say, and uh, he did have some records of uh, the test scores and rankings of individual employees, but that he had uh, he had not uh, written upa synopsis of it. © Did you read any written materials relating to the validation studies before you made your recommendations fora Verbal Test? A What do you mean by that? App. 335 Q Uh, I’m asking you that, I’m asking you if you read any reports, written reports or concerning the validation of the Beta Examination? Whether it was a complete report of a partial report of fragments before you made the recommendations for the institution of the Verbal Test. A If you mean, did I, uh, read and uh, books on tests and measurements about— Q No. A_ About the Beta? Q What I'm asking is, you said that Mr. Warren con- ducted a validation test fromthe Beta. A _ Yes sir. © And you say you don’t know whether he did a full written report of the validational studies. A I don’t think he did. © He may have made fragmentary notations? A Yes. Q Et cetera. I’m asking you if you read any of any- thing in writing relation to the validational study conducted by Mr. Warren before you made your recommendations for the Verbal Test? A_ I don’t recall reading anything, because as I say, he didn’t have a report, he and I just dis- cussed the thing, uh, orally, and he told me what he had done and what the results were and this sort of thing, uh, and I don’t know whether he showed me at that time or whether I saw it later, but I have seen at some time names of people and the scores that they made and uh, that served as a background for his putting these things together. © Now you stated that you did have some experience with the Wonderlic. A _ Yes sir. © Was this one of the reasons why you recommended the Wonderlic’s use? What experience did you have with it ? App. 336 A Of course, I first encountered the Wonderlic in college and courses on tests and measurement and uh, uh, studied it there and studied, uh, the material that had been de- veloped about its validation and use and this sort of thing and, uh, I’ve taken the Wonderlic myself, on I don’t know how many occasions in the, in terms of applying for jobs with other companies. Then, uh, uh, with, I think uh, with two previous employers uh, we used the Wonderlic. * * * App. 337 PLAINTIFFS’ EXHIBIT NO. 36A Boinest Deposition The following excerpts are offered in evidence by plain- tiffs from the deposition of M. Lebby Boinest, Jr., taken by plaintiffs March 12 and 13, 1968. Each excerpt is pre- ceded by a reference to the page of transcript from which it is taken. Questions are by Plaintiffs’ Counsel unless otherwise noted. [DEP. P. 26] Q What is your occupation? A _ I am vice-president of the Kraft Paper Division of Albemarle Paper Company. * * * [DEP. Pp. 27] Q Did you hold a position with the company prior to becoming manager of the grocery bag plant? 0 a} mm ae coooocoo§ Paper Machine Line Of Progression Machine Tender No. 1 Machine Tender No. 2 Back Tendeer No. 1 Third Hand No. 1 Third Hand No. 2 Fourth Hand No. 1 Fourth Hand No. 2 Front Plugger No. 1 Back Plugger No. 1 Back Plugger No. 2 Beaterman First Helper Brokeman Stock Puller Laborer . B Paper Mill Department Machine Tender Back Tender mOoroooroocococeoc$o oo = COSCON MH HHAASASE ooo Ff Ff SF HSH HPP HPL LS © oo App. 483 Third Hand Fourth Hand Fifth Hand Sixth Hand Seventh Hand Spare Hand Janitor-Dead End Job Stock Room Operator Stock Room First Helper Stock Room Second Helper E. Product Department B Papermill Sheeter Operator Rewinder Operator (large) Rewinder Operator Helper (large) Rewinder Operator (small) Sheeter Operator Helper Wrapper, Tier, Capper Rewinder Plugger Core Cutter Janitors Scale Clerk Lift Truck Operator Utility Man Laborers F. A Mill Finishing Department Lead Loader Lift Truck Operator Lead Tier & Wrapper Wrapper, Loader & Brokeman . Boiler Department Boiler Operator = cOoOoMKHCOCOCOOS§ io) eoeoooworr oooceo No = = PRROM RD HH HE ADRweuUonnsoana+sf F&F FWD ooc°o + App. 484 H. Power Plant Department Negro Power Plant Operator First Helper Second Helper Utility Man I. Technical Service Department B Mill Shift Testman A Mill Shift Testman General Lab Testman Lab Trainee Lab Assistant Lab Leadman J. Storeroom Department Storeroom Clerk A Storeroom Clerk C Storeroom Clerk D K. Maintenance Department Employees Ist Maintenance Emp. Appren. 2nd Maintenance Emp. Appren. 3rd Maintenance Emp. Appren. 4th Maintenance Emp. Appren. 5th Maintenance Emp. Appren. 6th Maintenance Emp. Appren. 7th Maintenance Emp. Appren. 8th Maintenance Emp. Appren. “C” Maintenance Employee “B” Maintenance Employee “A” Maintenance Employee Leadman Maintenance Employee L. Miscellaneous General Extra Board ooroco ooo°o ooo oooooorocococ°eo N White ~~ > b> su Buwerouneavoe om tN 8 App. 485 Negro White Utility Extra Board 50 0 Truck Drivers 0 4 The “Extra Boards” of Item “L” above were introduced in the early 1950's for the purpose of maintaining a reser- voir of employees who would be available to staff entry level jobs in the various lines of progression. The General Extra Board fed the “skilled” lines of progression and the Utility Extra Board fd the “unskilled” lines of progression. Both were manned by new employees and employees who had been laid off of other jobs and were waiting recall. 16. The 1968 labor contract made certain changes in the lines of progression. The chipper operator and crew lines of progression were merged on the basis of rates of pay into one line of progression, as were the chipper operator and line crew lines of progression and the brokeman and beaterman lines of progression. Separate departments were created out of old departments and the “dead end” job of janitor was eliminated. These changes in the lines of pro- gression had the effect of eliminating, to some extent, their strictly segregated composition. However, it is to be noted that black employees were still “locked” in the lower paying job classifications. For example, the line of progression and the black-white racial composition of the reorganized wood yard department were as follows: Wood Yard Department Negro White Crane Operator (American) Bulldozer Operator Oiler Crane Operator (large) 0 9 Long Log Operator 0 4 Log Stacker Operator 0 4 Small Equipment Operator 0 + 0 1 0 4 App. 486 Chip Unloader 1 3 Chipper Operator No. 2 Chain Operator 0 4 Chipper Operator No. 1 4 0 Tractor Operator 5 0 Chip Bin Operator 4 0 Laborer 12 0 Thus, the blacks occupied the bottom twenty-five job posi- tions within the wood yard department. 17. The General Extra Board and the Utility Extra Board were merged in 1968. Employees on the merged board still retain recall rights to jobs and lines of progression which they held prior to being reduced to the call board. The effect of this practice is that black employees are re- called to black jobs and white employees are recalled to white jobs. ™ 18. Prior to 1958 no employment personnel tests were given to.applicants at the Roanoke Rapids plant. In about 1956 the personnel manager was requested to design a personnel screening program for use in the selection of new employees to be hired for jobs created by the installa- tion of a new paper machine. In this connection two “paper and pencil” tests—the Revised Beta Examination (Beta) and the Bennett Mechanical Comprehension Test—were selected. New employees hired for the General Extra Board and the Maintenance Department were required to score successfully on the Beta as well as have a high school edu- cation. 19. In an effort to validate the Beta, the examination was administered to a sample of employees who worked on the No. 3 paper machine, maintenance employees and pos- sibly some employees in the pulp mill. The method that was App. 487 followed is known by industrial psychologists as concurrent validation, that is, employees that were tested were then rated by their supervisors on the basis of performance on the job. As a result of this study, a cutoff score of 100 was established for the Beta. No blacks were known to be in- cluded in the validation sample. 20. Use of the Bennett Mechanical Test, which had previously been administered to job applicants, was dis- continued in about 1963 and the company initiated use of the Wonderlic, A and B series, along with the Beta test. Since that time the two pre-employment tests, the Beta and the Wonderlic, series A and B, have been administer to applicants for Crane Operator (Wood Yard), Digester and C. E. Recovery (Pulp Mill), Paper Machine and Beater (A Paper Mill), Paper Machine and Stock Room (B Paper Mill), Power Plant Operator (Power Plant), Boiler Operator (Boiler Room), Mill and Laboratory (Technical Services) and Finishing and Shipping Crew (B. Mill Product) lines of progression. 21. The Beta examination is a nonverbal test, developed during World War I to measure the intelligence of illiterate and non-English-speaking individuals. 22. The Wonderlic, series A and B, are short, verbal, widely-used intelligence tests. The explanation given for the use of these tests is that it was felt that it was essential for new employees to have certain verbal facilities because of the increasing technical nature of the mill operation. The cutoff score which was utilized for the Wonderlic, series A and B, is 18 on either test. 23. A high school education requirement was introduced in the early 1950’s in response to a difficulty in finding quali- fied people for a modernized pulp mill. It was intended to App. 488 assure a certain level of reading skill needed to compre- hend the increasingly difficult material which accompanies technological innovations. 24. In December of 1964, Albemarle offered incumbent Negro employees who were then working in the Chipper, Service Crew, Payloader, Brokeman, First Fireman and Lead Loader lines of progression an opportunity to take the personnel tests in order to be considered for jobs in other lines of progression and waived its high school edu- cation requirement for incumbent black employees who could successfully pass these tests. This offer was made a second time on November 4, 1965, and some Negro em- ployees took the test and were transferred. However, a majority of those who took the tests failed them. 25. Employees who do not have a high school education and who are in jobs in lines of progression are not required to successfully pass the test battery in order to be con- sidered for future promotions in that line of progression. The policy applies to similarly situated white and black employees. 26. Albemarle has waived the necessity of successfully passing the test battery for a few of the black employees who do not have a high school education. Similarly, excep- tions to this practice have been made for white employees. 27. Apart from the standardized lines of progression, Albemarle maintains a maintenance staff which services and repairs machinery throughout the mill. The mainte- nance staff is not served by the call boards. In 1959 the company with the agreement of the Union established a formalized training program for maintenance employees called the Maintenance Apprenticeship Program. A high school education and passing test scores are required for en- . 1 I 4 ; q App. 489 trance into the program. Three employees selected by the Union and three members selected by the maintenance su- perintendent periodically review the performance of ap- prentices and recommend promotion or demotion within the program to the maintenance superintendent. The main- tenance program is not divided into functional craft divi- sions. Thus, all employees in the program must qualify to acquire the skills of a machinist, welder, carpenter, elec- trician, painter, oiler, pipefitter, rigger, millwright and insulator during the apprenticeship program. 28. In 1964 prior to the effective date of the Civil Rights Act of 1964, the company began actively recruiting black applicants from the local high schools to apply for the Maintenance Apprenticeship Program. In addition, the com- pany solicited applications from black employees working in other departments in the mill. The first black employee entered the program in 1964. There were five blacks in the program by September of 1967 and as of 1970, ten blacks had entered the program. All had successfully met the high school and test qualifications for entrance. 29. After the Supreme Court decision in Griggs v. Duke Power Company, 401 U.S. 424, 3 FEP Cases 175 (1971), Albemarle again conducted validation studies of its testing and educational requirements. The company employed an expert in the field of industrial psychology and testing to conduct the studies. This expert utilized two manuals which outlined generally-accepted procedures for determining criterion-related validity: “Guidelines of Employee Selec- tion Procedures,” Equal Employment Opportunity Com- mission, August 1, 1970, and “Standards for Educational and Psychological Tests and Manuals,” published by the American Psychological Association. App. 490 30. Ina study done on the testing requirements of Albe- marle, the expert applied the “concurrent validation” tech- nique to ten specific skill-related job groupings or lines of progression. An attempt was made to include in the sample all of the employees within the designated job groups. Two black employees refused to participate in the study, leaving only four blacks in the selected sample. Given this sample size, it was technically infeasible to validate the tests on a biracial basis. 31. Each employee in a job grouping was individually rated in comparison to every other individual employee in that grouping to obtain a ranking of job performance. The ratings took into consideration the elements of work behavior and job success. This rating method was per- formed twice by two different supervisors making inde- pendent evaluations. Neither of the raters had access to or knowledge of the sample employees’ performance on the aptitude tests. The results of the dual ratings were then averaged to obtain the final job rating of the employees within each specific unit. 32. Each rated employee took, or had already taken, three tests—the Wonderlic Form A and Form B and the Beta Examination. The test scores were recorded for each in- dividual. The tests were administered under controlled con- ditions by a trained personnel employee who had four years of experience administering these particular tests. 33. The sample group rated and tested consisted only of present employees. The group tested was typical of em- ployees in the skilled lines of progression. They were selected from the top and middle of various lines. Pro- fessional studies have shown that when tests are vali- dated in such a narrow range of competence, there is a LER I LI RE fear MO LORIE ID OR RYE 17H ARNON TREN HE ead Dad, yer east : { E ie App. 491 greater chance that the test will validate even a broader range, that is, if job candidates as well as present employees are tested. 34. The data obtained from the ratings and the data obtained from the test scores were mailed to Purdue Uni- versity where statistical correlation was performed. The expert correlated the job performance ratings and the test scores using tne “Phi coefficient” formula to determine whether successful performance on the test was related to successful performance on the job. 35. The results of the validation study, presented both in statistical and graphical form, showed positive correla- tions of a statistically significant nature for nine of the ten specific job groupings. More particularly, the study revealed that eight of the ten units correlated positively on at least one of the tests in a manner which could have oc- curred only by chance only once in a hundred times. One unit correlated positively in a manner that could have occurred only once in twenty times. 36. The conclusion of the validation studies was that “inspection of the correlations and charts shown in this report shows quite conclusively that both the Beta and Wonderlic A tests can be reasonably used for both hiring and promotion for most of the jobs in this mill. The charts indicate that a minimum score of 103 on the Beta for jobs in Recovery and Evaporation and a minimum score of 17 on the Wonderlic A for jobs in the other groups shown in the charts would not be at all out of line.” 37. In addition to the validation studies that he per- formed on the aptitude tests, the defendants’ expert under- took a specialized study to determine whether the com- pany’s high school requirement bore a significant relation App. 492 to the jobs for which it was a prerequisite. Since the high school requirement was instituted in the hope of improving the reading levels of new employees, the expert designed a study to focus on this variable. 38. The EEOC Testing Guidelines provide that “ap- propriate validation strategies” may be substituted for a criterion-related validity study where the latter is not tech- nically feasible. Under these circumstances, strategies to measure “content” relationships are permitted. In the case of the high school requirement, neither of the two principal criterion-related methodologies were feasible. A “concur- rent validation” study was not feasible because present employees did not constitute a statistically fair sample of high school graduates and non-high school graduates. Sim- ilarly, a “predictive validation” study was not feasible be- cause that method, by its nature, would require the indis- criminate hiring of high school and non-high school con- trol groups, measuring their performance over an extended period of time, then correlating the data. The company’s expert designed a strategy to measure the verbal skills and aptitude needed to comprehend reading material and other “content” which is integral to successful performance on jobs in the skilled lines of progression. For the first phase of this test a professionally-developed formula, the “Flesch Readability Index,” was used to measure the reading dif- ficulty of standard Operating Manuals used in the skilled lines of progression at the Roanoke Rapids mill. These manuals contain information relating to the operation of sophisticated machinery. The sample manuals used in the study were chosen by normal “random selection” from a file containing all of the reading material used in the skilled lines. The second phase of the technique employed merely re- quired the expression of the “Flesch Count” in terms of App. 493 the relevant criterion to be validated—in this case grades of education. 39. The “Flesch Index,” which measures the difficulty of “content” based on syllable/word and word/sentence ratios, revealed that the reading difficulty of the Operating Man- uals was such as to require the reading level of a high school graduate with perhaps some college. The expert con- cluded from his study that an individual must read at least at the level of a normal high school graduate to read the manuals. 40. The Operating Manuals contain information, the knowledge of which is required for the safe and efficient use of the machines and chemicals in the plant. 41. Some industrial psychologists believe that the aver- age scores obtained by blacks as a group on written tests are lower than the average scores obtained by whites as a group. Although the reasons for this are not entirely clear, it is explained in part by the fact that blacks in many parts of the country obtain inferior schooling as compared to whites and, in part by the fact that in some cultural backgrounds where blacks are not accustomed to close working relationships with whites, test scores of blacks are affected by having the test administered by white examiners. This is true not only for blacks but also for Mexicans, Puerto Ricans and whites of a lower income group. Al- though psychologists have made and are making an effort to construct cultural-free tests, these efforts, in the opinion of some psychologists, have not been successful so far. 42. A personal tour of the defendants’ plant in com- pany with counsel for plaintiffs and defendants served to convince the court that much of the machinery now in use is of a highly sophisticated and technically complex nature. App. 494 Computers are used extensively throughout the production process as well as in the record-keeping, billing, shipping, purchasing and accounting operations. The efficient main- tenance and operation of this machinery and electronic equipment obviously requires employees with a high level of native intelligence, prolonged training and experience. Conclusions of Law 1. This court has jurisdiction of this action under the provisions of Section 706(f) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f). 2. The corporate defendants are employers in an in- dustry affecting interstate commerce within the meaning of Section 701(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(b). 3. The defendant Local 425 is an organization engaged in an industry affecting commerce within the meaning of Section 701(d), (e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(d), (e). 4. Plaintiffs have complied with the procedural require- ments of Section 706(a), (d) and (e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a), (d) and (e). 5. Section 703(a) of Title 7, 42 U.S.C. § 2000e-2(a), prohibits an employer from discriminating against an em- ployee “with respect to his compensation, terms, condition, or privileges of employment, because of such individual’s race... ,” or from limiting, segregating or classifying an employee “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race.” Subsection (c) of the same sec- App. 495 tion defines as unlawful employment practices similar acts when done by a labor union. Subsection (h) provides that “Notwithstanding any other provision of this sub- chapter, it shall not be an unlawful employment practice for an employer to apply different standards of compen- sation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system .. . provided that such differences are not the result of an intention to discriminate because of race ... nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results 1s not designed, intended or used to discriminate because of race....” (Emphasis added. ) 6. The Act does not provide redress for discriminatory employment practices occurring prior to July 2, 1965, the effective date of the Act. However, employment practices which tend to perpetuate past discriminations are unlawful unless there is an overriding legitimate, non-racial business necessity, Griggs v. Duke Power Company, 401 U.S. 424, 3 FEP Cases 175 (1971); Robinson v. Lorillard, 444 F.2d 791, 3 FEP Cases 653 (4th Cir. 1971). And Section 706(g¢) of the Act, 42 U.S.C. § 2000e-5(g), provides for equitable relief only if the court finds that a defendant “has inten- tionally engaged in or is intentionally engaging in an un- lawful employment practice.” This provision has been in- terpreted to require only that the defendant “meant to do what he did, that is, his employment practice was not acci- dental.” See Robinson, supra, at 796 (quoting from Local 189, United Papermakers ani Paperworkers v. United States, 416 F.2d at 996, 1 FEP Cases 875, 71 LRRM 3070). Viewed in this light, it is clear that Albemarie App. 496 practiced racially discriminatory employment practice prior to July 2, 1965; that the effects of this discrimination has been perpetuated; and that such employment practices are unlawful under Title VII of the Civil Rights Act of 1964. 7. It is undisputed thet prior to January 1, 1964, Albe- marle’s lines of progression were strictly segregated on the basis of race. Negro employees were traditionally assigned to the lower paying lines of progression. Although overt racial discrimination ceased subsequent to the effective date of Title VII, the effects of this racial discrimination have not been eradicated. The job seniority system has resulted in blacks occupying the lower paying positions within an integrated line of progression. Other lines of progression remain essentially segregated because of the inability of black employees to meet the educational and testing require- ments to transfer into other, higher-paying lines of pro- gression. It follows that these practices must be enjoined in toto unless they have been shown to be “necessary to the safe and efficient operation of the business.”’ Jones v. Lee Way Motor Freight, 431 F.2d 245, 249, 2 FEP Cases 895 (10th Cir. 1970), cited with approval in Robinson, supra. 8. This court has found as a fact that the efficient main- tenance and operation of Albemarle’s machinery requires a certain degree of training and experience. However, a system of promotion and demotion based upon job seniority, unrelated to the minimum tenure required to gain the necessary proficiency in that job classification, is arbitrary and, when viewed in the context of past discriminatory practices, constitutes an unlawful employment practice. A system of promotion and demotion based on plant seniority would accomplish the purpose of awarding faithful em- ployees, and a job residency requirement, based upon the minimum tenure required to gain the skill and proficiency a ee App. 497 of a given job classification, would insure the safe and efficient operation of the plant and the promotion of black employees relatively unhindered by past overt acts of em- ployer discrimination. See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 1 FEP Cases 875, 71 LRRM 3070 (Sth Cir. 1969); Long v. Georgia Kraft Company, 2 FEP Cases 658 (N.D.Ga. 1970). 9. This court has also found as a fact that a certain level of native intelligence is required for the safe and efficient operation of Albemarle’s often complicated and sophisti- cated machinery. The personnel tests administered at the plant have undergone validation studies and have been proven to be job related. The defendants have carried the burden of proof in proving that these tests are “necessary for the safe and efficient operation of the business” and are, therefore, permitted by the Act. However, the high school education requirement used in conjunction with the testing requirements is unlawful in that the personnel tests alone are adequate to measure the mental ability and reading skills required for the job classifications. 10. In addition to injunctive relief, the plaintiffs seek an award of the amount of pay which would have accrued to them had there been no unlawful practices. 42 U.S.C. § 706(g) provides that the court “may ... order such affirmative relief as may be appropriate, including rein- statement or hiring of employees, with or without back pay.” The statute thus speaks clearly in terms of the dis- cretionary power of the court. See Local 186, International Pulp, Sulphite and Paper Mill Workers v. Minnesota Min- ing and Manufacturing Company, 304 F.Supp. 1284, 1 FEP Cases 764, 71 LRRM 2427 (N.D.Ind. 1969). Robin- son, supra, can be read to hold that back pay is a compensa- App. 498 tion for a tangible economic loss and that the plaintiff is entitled to that compensation. However, the Fourth Circuit was there concerned with the defendant’s contention that it was an abuse of discretion to award back pay. It did not address itself to the clear statutory language of Section 706(g). In the instant case there was no evidence of bad faith non-compliance with the Act. It appears that the company as early as 1964 began active recruitment of blacks for its Maintenance Apprentice Program. Certain lines of progres- sion were merged on its own initiative, and as judicial decisions expanded the then existing interpretations of the Act, the defendants took steps to correct the abuses without delay. And perhaps unlike the tobacco industry involved in Robinson, supra, the paper industry is justified in requiring that its employees possess a certain degree of training and experience. Furthermore, there is evidence to support a find- ing that Albemarle has consistently paid higher wages at all levels of employment than those paid by other industries in the area—doubtless a reflection of the sophistication of the industry. In addition, an award of back pay is an equitable remedy. Robinson, 444 F.2d at 802, supra. The plaintiffs’ claim for back pay was filed nearly five years after the institution of this action. It was not prayed for in the pleadings. Al- though neither party can be charged with deliberate dila- tory tactics in bringing this cause to trial, it is apparent that the defendants would be substantially prejudiced by the granting of such affirmative relief. The defendants might have chosen to exercise unusual zeal in having this court determine their rights at an earlier date had they known that back pay would be at issue. See Rental Develop- ment Corporation of America v. Lavery, 304 F.2d 839, 842 (9th Cir. 1962), cited with approval in Robinson, supra. ae ———_ ~~ App. 499 On the basis of the foregoing Findings of Fact and Conclusions of Law it is now Ordered, Adjudged And Decreed I. Albemarle Paper Company (Delaware) and Halifax Local 425, United Papermakers and Paperworkers, AFL- CIO, their officers, agents, employees and servants and all persons in active concert or participation with them, are hereby permanently enjoined and restrained from discrim- inating against the Negro employees of the defendant Albe- marle Paper Company (Delaware) at its paper mill in Roa- noke Rapids, North Carolina, in yiolation of Title VII of the Civil Rights Act of 1964. A. In particular, the defendants are ordered to abolish the existing seniority system based substantially on job seniority and to refrain from negotiating or implementing any other seniority system designed to discriminate or hav- ing the effect of discriminating against Negro employees, insofar as such systems may apply to permanent job assign- ments, and permanent promotions and lay-offs of employees in the affected class, in competition with other employees at the Roanoke Rapids paper mill of Albemarle Paper Company (Delaware). B. In place of the seniority system so abolished, the defendants are ordered to implement and permanently con- tinue a system of plant seniority with respect to permanent job assignments and permanent promotions and layoffs of employees in the affected class, so that in making perma- nent promotions or demotions within a line of progression, or in making permanent transfers, promotions or demo- tions to or from a line of progression, when employees of the affected class are competing with employees not of the affected class, and the qualifications of the competitors are App. 500 relatively equal, plant seniority rather than job seniority shall govern. Albemarle Paper Company (Delaware) shall not discriminate on the basis of race in making any tempo- rary assignments, promotions, layoffs or demotions at its Roanoke Rapids plant. C. Plant or mill seniority shall be determined as length of continuous service from most recent date of permanent employment. D. Qualifications as used immediately above and else- where in this decree shall be deemed to refer to (1) ability and fitness, (2) knowledge and training, and (3) experience and skill developed during an employee’s tenure at the mill. Where a member of the affected class with higher plant seniority competes for a job with a non-member hav- ing lower plant seniority, the latter shall not be deemed more qualified for promotion simply because of ability, fitness, knowledge, training, experience or skill which are the product of his longer tenure in job slots immediately below the vacancy, subject, however, to the use of reason- able residency requirements in job slots within lines of progression as set forth in Appendix A to this decree. The residency requirements of Appendix A are subject to amendment if the parties, within thirty days, submit ad- ditional evidence or stipulations bearing on the minimum on-the-job training requirements for safety and proficiency in a given job classification. E. In making permanent promotions within a line of progression, or in making permanent transfers, promotions or demotions to or from a line of progression, the lowest paying job in each line of progression shall be the proper job for beginning in the line, and proper progression shall be to the job next hig.. » than that currently held by the employee. App. 501 F. Normal seniority provisions, without the modifica- tions of this decree, shall prevail in making permanent pro- motions or demotions : 1. When employees not of the affected class compete with each other, such as when no employees in the job classification from which the promotion or demotion is to be made are of the affected class, or when there are two or more employees not of the affected class who have longer company service than an affected class employee in the job classification from which the promotion or demotion is to be made; 2. When employees of the affected class compete with each other, such as when all employees in the job classification from which the promotion or demotion is to be made are of the affected class, or when there are two or more employees of the affected class who have longer company service than an employee who is not of the affected class in the job classification from which the promotion or demotion is to be made. G. Employees who are transferred from one line of progression to another shall carry their seniority and wage rate as provided in Section 10.2.2 and 10.2.3 of the current Labor Agreement, except that in no event shall the rate retention right or “Red Circle” rate exceed $3.36 per hour (straight time). The “Red Circle” protection provided in this paragraph shall apply to only one transfer made pur- suant to this decree. H. Defendants are directed to amend the seniority pro- visions of Section 10 of the Labor Agreement to provide for the posting of all permanent vacancies to entry level jobs in the various lines of progression as contained in Ap- App. 502 pendix A. Such posting shall be for three (3) calendar days on the clock house bulletin board. I. The defendants are permanently enjoined and re- strained from requiring a high school education as a pre- requisite for employment, promotion or transfer. II. The defendants are directed to amend the Labor Agreement to include provisions for assignments from the Call Board incorporating the following terms: A. Immediately after a determination has been made of available job assignments, and prior to any assignments being made, employees meeting the shift who have recall rights to any job listed must indicate to the clock room attendant whether or not they wish to exercise such recall rights. B. Thereafter the senior qualified employee meeting the shift in terms of plant or mill seniority will be given the choice of ali the then available jobs. Succeeding offers will been made to those meeting the shift in order of their de- creasing mill seniority. C. Requests coming in after posting of the lists and the start of assignments shall be immediately made avail- able to those meeting the shift who have not already re- ceived assignments. III. The request for abolition of or changes in testing procedures is denied for the reasons set forth in the Find- ings of Fact and Conclusions of Law. IV. The request for an award of back pay is denied for the reasons set forth in the Findings of Fact and Con- clusions of Law. V. Counsel for the parties are directed to confer among App. 503 themselves in an effort to reach an agreement on reasonable attorneys’ fees for plaintiffs’ counsel and the apportionment thereof among the defendants. They shall report to the court within thirty days of the entry of this decree whether they have been able to reach an agreement, and if not the court will then determine the amount of fees and their apportionment. It Is So Ordered. APPENDIX A Method For Calculating Residency Requirements When calculating time spent on a particular job for pur- poses of determining when the residency requirement has been satisfied, the following will be counted toward satis- faction of the residency requirement of a particular job classification: 1. Time worked while permanently assigned to the job in question. 2. Time worked while permanently assigned to a job below the job in question but assigned on a temporary basis to the job in question, prqvided such temporary time on the job equals or exceeds 48 hours in any calendar month, in which case all such temporary time in that month will be counted. In the event that temporary time on a particular job does not amount to 48 hours in one calendar month, all such temporary time in that month will be counted toward satisfying the residency requirement of the job to which the employee is then permanently assigned. Time worked on either a permanent or temporary basis as defined above shall satisfy residency requirements as follows: 1. 172 hours actually worked shall satisfy one month of residency. App. 504 2. 40 hours actually worked shall satisfy one week of residency. Residency Requirements Wood Yard Department Crane Operator ( American) By Products Operator Crane Operator (Large) 11 mos. Long Log Operator 9 mos. Log Stacker Operator 8 mos. Small Equipment Operator 8 mos. Bulldozer Operator 6 mos. Oiler 6 mos. Chip Unloader 3 mos. Chipper Operator No. 2 3 mos. Chain Operator 3 mos. Chipper Operator No. 1 3 mos. Tractor Operator 3 mos. | Chip Bin Operator 3 mos. Laborer 1 mo. i Pulp Mill Department t Digester Operator (Cooker ) F Stock Room Operator 12 mos. t Stock Room First Helper 12 mos. . Stock Room Second Helper 6 mos. 3 C. E. Recovery Operator : Ist Helper No. 6 15 mos. 5; Evaporator Operator (when used) 12 mos. : lst Helper No. 5 12 mos. ; 2nd Helper 9 mos. t Utility Helper 4 mos. J Caustic Operator j Lime Kiln Operator 12 mos. App. 505 Leadloader—Blower Loader Power Plant Power Plant Operator Ist Helper 2nd Helper B Mill Shipping Scale Clerk Lift Truck Operator Utility Man Laborer Boiler Room Department Boiler Operator Bark Burner Operator Ist Fireman 2nd Fireman Laborer B Paper Mill Department Paper Machine Progression Machine Tender Back Tender 3rd Hand 4th Hand 5th Hand 6th Hand 7th Hand Stock Room Progression Stock Room Operator Stock Room Ist Helper Stock Room 2nd Helper 9 mos. 6 mos. 18 mos. 12 mos. 12 mos. 9 mos. 3 mos. 10 mos. 9 mos. 6 mos. 3 mos. 36 mos. 24 mos. 12 mos. 4 mos. 2 mos. 1 mo. 12 mos. 6 mos. App. 506 Technical Service Mill Progression B Mill Shift Testman Additive Man Laboratory General Lab Testman General Lab Assistant Sampleman Trainee Service Department Payloader Dempster-Dumpster Operator Winch Truck Operator Truck Operator Winch Truck Operator Helper Laborer Store Room Department Storeroom Clerk A Storeroom Clerk B Storeroom Clerk C Storeroom Clerk D A Paper Mill Department Paper Machine Machine Tender No. 1 Machine Tender No. 2 Back Tender No. 1 Back Tender No. 2 Third Hand No. 1 Third Hand No. 2 15 mos. 15 mos. 6 mos. 3 mos. 10 mos. 9 mos. 9 mos. 3 mos. 1 mo. 6 mos. 6 mos. 6 mos. 30 mos. 26 mos. 26 mos. 24 mos. 24 mos. App. 507 Fourth Hand No. 1 Fourth Hand No. 2 Front Plugger No. 1 Back Plugger No. 1 Back Plugger No. 2 A Paper Mill Department Beater Room Beaterman Ist Helper Brokeman Shipping Room Department A Mill Lead Loader Lift Truck Operator Lead Tier and Wrapper Wrapper, Loader, Laborer * * * App. 508 In The UNITED STATES DISTRICT COURT FOR THE Eastern District Of North Carolina Wilson Division [ Title Omitted in Printing] MOTION TO ALTER OR AMEND THE JUDGMENT ENTERED ON NOVEMBER 9, 1971 [ Filed November 22, 1971] Plaintiffs, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, moves the court to alter or amend the judgment entered in this action on November 9, 1971, inso- far as said judgment fails to award plaintiffs their costs of this action and said judgment fails to provide for the retention of jurisdiction by the court for the enforcement of said judgment. As grounds for this Motion plaintiffs show the court as follows: 1. Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-5(k), provides that in any action brought under this title the court, in its discretion, may allow the prevailing party a reasonable attorneys’ fee as part of the costs. The only item of costs allowed in the judgment were attorneys’ fees. The judgment should be altered or amended to allow not only attorneys’ fees but other items of costs recoverable under federal law. App. 509 2. The judgment fails to provide for the reiention of jurisdiction of this action for a reasonable period to insure compliance by the defendants with its terms. The nature of the claim asserted in this cause and the finding by the court that the effects of racial discrimination engaged in by the defendants were not eradicated as of the date of the entry of the judgment mandates a provision by which the court specially retains jurisdiction of this action for a reasonable period of time to assure compliance by the de- fendants with the terms of the judgment. Wherefore, for the reasons stated above, plaintiffs re- spectfully pray the court to alter or amend its November 9, 1971 judgment to include the matters set forth in this Motion. , day of November, 1971. Respectfully submitted, SEE Robert Belton J. LeVonne Chambers Chambers, Stein, Ferguson & Lanning 237 West Trade Street Charlotte, North Carolina 28202 T. T. Clayton Clayton & Ballance Post Office Box 236 Warrenton, North Carolina Conrad O. Pearson 203% East Chapel Hill Street Durham, North Carolina App. 510 LETTER FROM THE HON. F. T. DUPREE, JUDGE RE: MOTION TO ALTER OR AMEND November 22, 1971 Mr. Charles O’Connell Mr. Rodger L. Nordbye Mr. J. LeVonne Chambers Mr. Bonner D. Sawyer Mr. James B. Ledford Mr. Julian R. Allsbrook, Jr. Mr. William L. Robinson Mr. Conrad O. Pearson Mr. Charles F. Blanchard Mr. Warren Woods Mr. Francis V. Lowden, Jr. Mr. T. T. Clayton Re: Civil No. 989—Wilson Division Moody, et al. v. Albemarle, et al. Gentlemen: With reference to plaintiffs’ motion to amend the decree of November 9, 1971, in the absence of objection and re- quest to be heard, the final order to be entered when the matter of attorneys’ fees has been settled will award costs in the action to the plaintiffs, and in any event will pro- vide for a retention of jurisdiction pending implementation by defendant Albemarle of the injunctive provisions of the decree. Sincerely yours, /s/ F. T. Dupree, Jr. F. T. Dupree, Jr. . App. 511 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 72-1267 Joseph P. Moody, et al., Appellants, v. Albemarle Paper Company, et al., Appellees. OPINION [Entered February 20, 1973] App. 512 Before Boreman and Bryan, Senior Circuit Judges, and Craven, Circuit Judge. Craven, Circuit Judge: This is a class action arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plain- tiffs are representative members of the class composed of all Negroes employed at defendant’s Roanoke Rapids plant and all Negroes who may hereafter apply for employment at the Roanoke Rapids plant. The multitude of defendants is occasioned by changes in corporate ownership which oc- curred subsequent to the institution of the action. Since the Roanoke Rapids operation has at all pertinent times been called the Albemarle Paper Company, the corporate de- fendants will hereinafter be referred to as Albemarle. The district court found that Albemarle practiced racially discriminatory employment practices prior to July 2, 1965, and that the effect of that discrimination had been perpet- uated through a job seniority system. Thus, the district court enjoined Albemarle and the defendant union, Halifax Local 425, United Papermakers and Paperworkers, AFL- CIO, from discriminating against Negro employees, and ordered that the job seniority system be abolished and a plant-wide seniority system be implemented. There has been no appeal from these provisions of the court’s decree. The district court refused to order the abolition of or changes in the pre-employment testing procedures used by Albemarle. Plaintiffs appeal from the district court’s de- termination. Judge Boreman concurs with Judge Craven in reversing and remanding to the district court on this issue. Judge Bryan dissents. App. 513 The district court also refused to award the plaintiffs back pay. Judge Bryan concurs with Judge Craven in re- versing the district court on this issue. Judge Boreman dissents. The effect of this division in the court is to reverse and remand the district court’s determination as to the testing procedures and the refusal to award back pay. I Testing Procedures Prior to 1958, no employment personnel tests were given to applicants for employment at Albemarle. In 1956, the personnel manager was requested to design a screening program for selection of employees for certain departments. In this connection, the Revised Beta Examination (Beta) and the Bennett Mechanical Comprehension were selected to test applicants. A brief study was made at that time to determine the usefulness of the Beta test. About 1963, the then personnel manager discontinued us- ing the Bennett Mechanical Test since it had not been studied. Use of the Wonderlic Test, A and B series, was initiated at that time. Whereas the Beta is a non-verbal test developed to measure the intelligence of iiliterate and non- English speaking individuals, the Wonderlic Tests are verbal tests of general mental ability. Use of the Wonderlic Tests was adopted in connection with the Beta because Albemarle felt it essential for new employees to have a cer- tain level of verbal facility because of the increasing tech- nical nature of the operation and the increasing use of printed instructions in the operation of machinery and the like. The operations of Albemarle are, like other pulp and App. 514 paper mills, organized on a departmental basis. For purposes of employee classification and promotion, each department is organized into one or more lines of progression. Entrance into each department is effected at the bottom of a line of progression and employees move up, depending on their ability and experience, as vacancies occur. In all, Albemarle has 11 separate departments containing 17 lines of pro- gression. Since 1963, applicants for 8 of these departments and 14 of the lines of progression were required to score successfully on the Beta and Wonderlic pre-employment tests. After the Supreme Court decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), Albemarle hired an expert in industrial psychology and testing to conduct a validation study of its pre-employ- ment testing procedures. A validation study determines whether test results have a significant relationship to actual performance on the job. The technique adopted for the validation study of Albemarle’s tests was concurreiit valida- tion. In concurrent validation, a sample of current em- ployees occupying the jobs, or job groups, in question is selected. These employees are then given the tests, and the test scores compared with one or more criteria of the em- ployee’s ability to perform their jobs. Albemarle’s validation study covered 10 job groups in only 8 of the 14 lines of progression, and 5 of the 8 depart- ments for which the tests are required. The sample of em- ployees was generally selected from the higher level jobs and encompassed approximately 30 percent of the different jobs for which tests are required. The test scores from that sample were compared with two supervisors’ comparative ratings of employees in each job slot. The criteria for the supervisors’ ratings was: “Excluding a man’s attitude, just App. 515 how well the guy can do the job when he’s feeling right.” (A. 471). No job analysis was done for the jobs in question. Albemarle’s expert found that one of the tests was vali- dated for 9 of the 10 job groups studied. However, both tests were valid for only one job group. The effect of the district court’s approval of Albemarle’s testing procedure is to approve a validation study done with- out job analysis, to allow Albemarle to require tests for 6 lines of progression where there has been no validation study at all, and to allow Albemarle to require a person to pass two tests for entrance into 7 lines of progression when only one of those tests was validated for that line of pro- gression. We think this was error. [1] Title VII of the Civil Rights Act “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed. 2d 158 (1971). If an employment practice, though facially neutral as the testing procedures here, is shown to have a differential impact on minority employment, it is prohibited unless the employer can prove business necessity. Griggs, at 432, 91 S.Ct. 849. The plaintiffs made a sufficient show- ing below that Albemarle’s testing procedures have a racial impact.’ It was thus incumbent upon Albemarle to establish business necessity* by showing that its testing requirements 1 It was demonstrated in plaintiff's exhibits that on the Wonderlic Series 96 percent of whites passed as opposed to 64 percent of blacks. This corresponds with the natural average as determined in a study by the authors of the test. Negro Norms. A Study of 38,452 Job Applicants for Affirmative Action Programs, E. F. Wonderlic & Assoc., Inc. (1970). 2“ T]he applicable test is not merely whether there exists a busi- ness purpose for adhering to a challenged practice. The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. App. 516 “have a manifest relationship to the employment in ques- tion.” Griggs, at 432, 91 S.Ct. at 854. United States v. Jacksonville Terminal Co., 451 F.2d 418, 455-457 (Sth Cir. 1971). While § 703(a)(2), (h)* specifically authorizes profes- sionally developed tests not used to discriminate, Griggs makes clear that that section allows only those tests proven to be job related. 401 U.S. at 436, 91 S.Ct. 849. In so hold- ing, the Court gave great deference to the interpretation of the Act evinced in a set of guidelines by the enforcing agency, the Equal Employment Opportunity Commission. Griggs, at 433-434, 91 S.Ct. 849. We have also recently noted with appi oval these guidelines. Robinson v. Lorillard Corp., 444 F.2d 791, 798 n. 7 (4th Cir. 1971). [2] We think Albemarle has failed in several respects to show that its tests are job related, have a manifest rela- tionship to employment, and have been validated in accord- ance with EEOC guidelines. In developing criteria of job performance by which to Thus, the business purpose must be sufficiently compelling to over- ride any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative polices or practices which would better accomplish the business purpose advanced, or accomplished it equally well with a lesser differential impact.” Robinson v. Lorillard Corp., 44 F.2d 791, 798 (4th Cir. 1971). See also, Note, Employment Testing: The Aftermath of Griggs v. Duke Power Company, 72 Colum.L.Rev. 900, 908 (1972). 8 § 703(a) (2), (h) provides in relevant part: “Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally de- veloped ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.” 42 USCA. § 2000e-2(h). App. 517 ascertain the validity of its tests, Albemarle failed to engage in any job analysis. Instead, test results were compared with possibly subjective rating of supervisors who were given a vague standard by which to judge job performance. Other courts have expressed skepticism about the value of such ill-defined supervisor appraisals. See, e. g., Rowe v. General Motors Corp., 457 F.2d 348, 452 (Sth Cir. 1972). Also Cooper and Sobol have stated in their article, Seniority and Testing Under Fair Employment Laws: A General Ap- proach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1662 (1969) : Supervisory ratings, for example, which are possibly the single most common performance measure used in validity studies, are subject to personal prejudice. When test scores are correlated with such ratings, the valida- tion, if it can be called that, is of questionable value and may simply prove that the test has the same bias as the supervisors. Likewise, in this regard the EEOC guidelines provide: (3) The work behaviors or other criteria of em- ployee adequacy which the test is intended to predict or identify must be fully described ; and, additionally, in the case of rating techniques the appraisal form(s) and instructions to the rater(s) must be included as part of the validation evidence. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of at- tendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as re- vealed by careful job analyses. (4) In view of the possibility of bias inherent in subjective evaluation, supervisory rating techniques App. 518 should be carefully developed, and the ratings should be closely examined for evidence of bias. * * * 29 C.F.R. § 1607.5(b) (1970). We agree that some form of job analysis resulting in specific and objective criteria for supervisory ratings is crucial to a proper concurrent validation study. See, West- ern Addition Community Organization v. Alioto, 340 F.Supp. 1351, 1354-1355 (N.D. Cal. 1972). To require less is to leave the job relatedness requirement largely to the good faith of the employer and his supervisors. The com- plaining class is entitled to more under the Act. [3] Even if the validation procedures had been proper, it was error to approve the testing procedures for lines of progression where there had been no validation study. In this case the tests were approved as a requirement for 6 lines of progression for which the tests had not been vali- dated. While it is true that a test need not always be validated for each job for which it is required, there are narrow limits on when a test may be used without valida- tion. The EEOC guidelines provide: (2) Where a test is to be used in different units of a multiunit organization and no significant differences exist between units, jobs, and applicant populations, evidence obtained in one unit may suffice for the others. 29 C.F.R. § 1607.4(c) (1970). In this case, a failure to perform job analyses in the lines of progression involved in the validation study and in the other lines of progression for which the tests are required App. 519 prevents concluding that no significant differences exist in the jobs in question.* Not only was it error to approve the testing procedures for lines of progression not validated, but it was also error to approve requiring applicants to pass two tests for posi- tions where only one test was validated. Albemarle seeks to justify this under the business necessity rule. Albemarle originally hires all employees into a pool. F [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0184%3A03. Public record. Not legal advice.