Amicus Brief — Detroit Edison Co. v. National Labor Relations Board

:

~~ Supreme Court, U. &

FILED ‘|

'

JUN 9 1978 ;

: MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1977

No. 77-968

THE DETROIT EDISON COMPANY,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

BRIEF OF AMERICAN

PSYCHOLOGICAL ASSOCIATION

AS AMICUS CURIAE

BRUCE L. MONTGOMERY

LINDA D. FIENBERG

MINDA S. FRAHM

Arnold & Porter

1229 Nineteenth Street, N.W.

Washington, D.C. 20036

Attorneys for Amicus Curiae

American Psychological

Association

a a SSS POSS)

THE CASILLAS PRESS. INC -1717 K Street N W.—Washington. 0. C.-223-1220

(i)

TABLE OF CONTENTS

SE WPCC ss eeoe be doccceuecucpiweweneeeuesar

INTEREST OF AMICUS CURIAE . .. wc ccccccccccccccccces

SUPPLEMENTAL STATEMENT OF THECASE ............

SES GI IEEE cc coeccccccccseccecesecescs

ee MTTTITITITITITTT TTT tee

I. FUNDAMENTAL INTERESTS OF EMPLOYEES

AND PSYCHOLOGISTS ARE IGNORED BY

UNLIMITED DISCLOSURE TO THE UNION

OF PSYCHOLOGICAL TEST SCORES AND

TEST PAPERS LINKED WITH THE NAMES

Se COE CUO 6 00.0 ceca reeevesccosecsvesete

: A. Disclosure of Employee-Linked

Psychological Scores and Test Papers

Ignores the Employee's Interest in a

Confidential Relationship with the

PRED 6 bec veeesecececceseeensceereccetes

B. Recognition of the Confidentiality

of the Employee's Test Scores and

Test Papers Protects the Employee's

PEE occ cecaccesceseséecsstecctrepastenens

C. Requiring the Psychologist to

Disclose a Client’s Test Scores and

Test Papers Breaches the Confidential

Relationship Established with the Client

and Violates the Psychologist’s Code

Prey e e Trer rr Tee TTT Eee TTT eT

eer ere ert a

Il. DISCLOSURE TO THE UNION OF PSYCHOLO-

GICAL APTITUDE TESTS WILL DESTROY THE

VALIDITY OF THE TESTS AND RESULT IN

VOIDING OBJECTIVE AND NONDISCRI-

—_ Sy EE ee

Pe ce, i i

La NE od Al

(ii)

MINATORY EMPLOYEE SELECTION

oN ee ee dere

as ee ieee eee eeenw ees

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody.

422 U.S. 4OS(1GTS) 0. ccc cc crcvcvcrersvceess

Association of American Phys. & Sur. v. Weinberger.

39S F. Supp. 125(N.D. Ill),

aff'd. 423 U.S. 9TS(I9TS) . 0. ccc cece cece ee eenes

Department of the Air Force v. Rose,

GED UD, TRB IGFD oc ccccccccceseccccccevecees

General Electric Co. v. NLRB.

466 F.2d 1177 (6th Cir. 1972)... 0... eee eee ees

Griggs v. Duke Power Co.,

401 U.S. 4B4CI9TA) 0. wcrc ccc cccvrececesecens

Kirkland v. New York St. Dept. of Correctional Serv..

520 F.2d 420 (2d Cir. 1978)... ccc eee eee eens

Kroger Co. v. NLRB,

399 F.2d 455 (6th Cir. 1968)... eee

Lora v. Bd. of Ed. of City of New York,

74 F.R.D. S6S(E.D.N.Y. 1977) 0.0... ccc cece eeees

Merriken v. Cressman,

364 F. Supp. 913(E.D. Pa. 1973)... 26... ee eee ees

National Labor Relations Board v. Truitt Mfg. Co..

351 U.S. 149(19S6) occ cere cc cree eeeneveees

NLRB G. C. Adm. Rul. No. SR-477,

46 L.R.R.M. 1252(1960) 0... cece eee eens

(iii)

NLRB G. C. Adm. Rul. No. SR-657,

ee ee ches eaendedebecuneadesess 29

Rural Housing Alliance v. United States

Dept. of Agr.,

Gee ee PG BOUND ok vcdcccsccccecccccsccecece 1S

Tweith v. Duluth, M&I Ry. Co.,

66 F. Supp. 427 (D.C. Minn. 1946). 2.0.0.0... ccc cece eeceee 10

Washington v. Davis,

i titcuss vied bpheaeeeeennee-nseddawes 27

Whalen v. Roe,

EN 65-46 60 ows nuke oinaaen oun kd ons 13-14

Statutes and Regulations:

PE 6 b-bd oud 660465 866k04460060ckaaew es 1S

I 55 655 be wedge sds baeevieenseceoseens 28

SB UB. Be UF) - AFRO BD oc ccc cccccccccccccccccces 15

ee oc idcinecccdeuscesesecosecs 8, 23, 26

SEE 05s abRRod sn pose ceusénkadebedesuaetens 26

PETE T ET ET TT TT OT eer OCT errr err 26

SE rind ie ka'n6 60460400 0Ks Uae esKdedencess 26

42 Feb. Bag, G6.S62 Gide. TR. IGT on. ccc cc cccccccccccces 26

Mich. Stat. Ann. § 14.677(1Xb)

I tah es tad cist lbs ddebbbbsusedene: 18

Mich. Stat. Ann. § 14.677(10X6)

EE i iaduussy hel aival oeansecedubonveews 22

(iv)

Miscellaneous:

American Psychological Association,

Ethical Standards of Psychologists

SEY 066606 640554s CHRSEN ESC ORC CORO dEGCO ee passim

American Psychological Association,

Principles for the Validation and Use

of Personnel Selection Procedures

ene ere oer rere eee eee Tee. Te ee ee 25

American Psychological Association,

Standards for Educational and

Psychological Tests (1974) 0... cen 19, 24-25

Krattenmaker, Thomas G., /nterpersonal

Testimonial Privileges Under the

Federal Rules of Evidence,

BOG. 0. D. GEDCIGIED coves ccc cceecsvceseevescccens 12

Ruebhausen & Brim, Privacy and

Behaviorial Research,

EE TT TT ee Tee eee eee 13

Slovenko, R., Psychotherapy, Confidentiality

and Privileged Communication (1966) . 0... ee 18

|

IN THE

Supreme Court of the United States

October Term, 1977

No. 77-968

THE DETROIT EDISON COMPANY.

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

BRIEF OF AMERICAN

PSYCHOLOGICAL ASSOCIATION

AS AMICUS CURIAE

CONSENT TO FILING

This Amicus brief is filed, pursuant to Supreme Court

Rule 42(2), with the written consent of both parties. Letters

to that effect have been filed with the Clerk of this Court.

INTEREST OF AMICUS CURIAE

The American Psychological Association (“‘APA’’), a

non-profit professional organization founded in 1892, is the

major association of psychologists in the United States. The

purpose of the Association, as set forth in its Bylaws, is to

“advance psychology as a science and profession, and as a

means of promoting human wélfare by the encouragement

of psychology in all its branches in the broadest and most

liberal manner.”’

The Association has 47,000 members and includes the

vast majority of psychologists holding doctorate degrees

+

from accredited universities in the United States. Ap-

proximately half of the members have a direct interest in

psychological testing — the specific matter at issue in this

case. However, because questions of confidentiality,

privilege and privacy, as they pertain to the relationship

between psychologists and their clients, are central to this

case, all members of the Association, all other

psychologists, and the clients whom they serve, could be

directly and adversely affected by the decision of the

National Labor Relations Board (‘‘Board”’) as enforced by

the United States Court of Appeals for the Sixth Circuit.

One of the APA's central functions is to establish ethical

standards for the guidance of psychologists. The

Association's code of ethics, binding on all members, is en-

forced by an ethics committee of APA designated

specifically for this purpose. The committee, with the con-

currence of APA’s Board of Directors, has the authority to

impose sanctions against members who violate the ethical

code, including suspension or expulsion from the

Association. Further, the APA's code of ethics has been in-

corporated in the laws of many states, thus governing the

professional conduct of many nonmember psychologists

licensed in those states.

APA also has been instrumental in developing testing

standards for the validation and administration of

psychological aptitude and other tests. The standards

enunciated by Amicus have been referenced by the Equal

Employment Opportunity Commission, the Office of

Federal Contract Compliance, and the Department of

Justice in their respective guidelines on nondiscriminatory

employee selection procedures.

Amicus has a direct interest in the outcome of this case

because the decision of the Court of Appeals, if allowed to

stand, undermines several principles of its ethical code

pertaining to confidentiality and client relationships as well

as important standards relating to test security necessary to

assure the validity of psychological testing.

3

SUPPLEMENTAL STATEMENT OF

THE CASE'

This matter arises from a decision of the United States

Court of Appeals for the Sixth Circuit enforcing an order of

the National Labor Relations Board requiring Detroit

Edison (‘‘Company’’) to provide to the Utility Workers

Union of America (‘‘Union’’) employees’ raw test scores

and test papers from psychological aptitude tests without

their consent, and copies of the actual test battery.

Detroit Edison has, for many years, used aptitude tests to

predict job performance and to select applicants most likely

to succeed in specific positions, including the Instrument

Man position (A. 75, 178-79). One of the requirements for

promotion to the Instrument Man job is a minimum grade

of ‘‘recommended” on a battery of aptitude tests consisting

of two widely used exams, the Minnesota Paper Form

Board Test (MPFBY and the Engineering and Physical

Science Aptitude Test (EPSATY (A. 189, P.A. 20a). The

tests are administered to the employees by the Company’s

Industrial Psychology Division, headed by Dr. William L.

Roskind, a licensed psychologist in the state of Michigan

and a member of the American Psychological Association

(A. 74-77).

‘The Supplemental Statement is not a complete statement but rather

sets forth those facts germane to the arguments propounded by

Amicus.

‘The Minnesota Paper Form Board Test is a widely employed

aptitude test designed to predict the ability to visualize the in-

terrelationship of parts in three-dimens‘onal spaces, a skill shown to be

important to perform the Instrument Man position (A. 193-95).

*The six-part Engineering and Physical Science Aptitude Test is used

to examine aptitudes in the areas of mathematics and physical sciences

(A. 198-99). EPSAT has been used for over thirty years to predict suc-

cess in jobs relating to the physical sciences such as the Instrument

Man position (A. 198, 204-05).

4

The test battery for the Instrument Man position has

been validated on three separate occasions, twice by Detroit

Edison and a third time, in 1972, by an independent testing

organization (A. 190, 238, 343-67). All three studies showed

a very high correlation between successful performance on

the test battery and in the Instrument Man position, a fact

uncontested by the Union (A. 190, 206, 239, 367). The

validation studies also verified the appropriate cut off to

predict successful performance in the Instrument Man

position (P.A. 64a).

Employees are given the test battery by professional

psychologists who assure them, before they take the test,

that their actual test scores will be kept in confidence and

that the only information that will be released is an in-

terpretation of overall performance (A. 85, 445). To guard

the confidentiality of this information, management is not

given actual numerical scores, only a general evaluation of

the applicants’ performances on the test battery (A. 77, 83,

91, 127). Further, the test data are kept in a locked file to

which only the Company's professional psychologists have

access (A. 83).

Confidentiality of scores is maintained to prevent their

misuse and to protect employees from damaging

harassment and ridicule (A. 83-84). In fact, prior to the

Company’s institution of measures to safeguard test scores,

several employees suffered ridicule at the hands of their

peer employees because of indiscrete disclosure of low

scores and terminated their employment with the Company

(A. 84).

The Company's psychologists restricted access to the test

battery and the actual test papers (A. 83) in order to ensure

the validity of the tests (A. 77-78). The reliability of the

selection process would be destroyed if copies of the test

questions were disseminated to future applicants for

promotion to the jobs for which the battery had been fully

validated (A. 77-78).

5

In late 1971, Detroit Edison's professional psychologists

administered the above-described test battery to employees

seeking promotion to the Instrument Man position. When

ten employees who took the battery were rejected for

promotion for failure to obtain a ‘‘recommended”’ on the

battery (P.A. 2Ca-21a), the Union filed a grievance against

the Company. The central issue in the arbitration and

NLRB proceedings which followed concerned what testing

data the Company would make available to the Union.

During the course of the proceedings, the Company and its

professional psychologists furnished all of the following in-

formation to the Union:

(1) A written explanation of the test battery (A. 127-31).

(2) Representative samples of the kinds of questions that

appear on both the Minnesota Paper Form Board and th

EPSAT Tests (A. 125, 280). :

(3) The Company's 1970 revalidation report (A. 343-53).

(4) The 1972 validation report conducted by the outside

consultant, the National Compliance Company (A. 354-78).

(S) The raw test scores of all applicants, without em-

ployee identification (A. 279-80).

In further attempts to accommodate the Union’s de-

mands, the Company made the following proffers of in-

formation, each of which was refused by the Union:

(1) The Union demanded copies of each applicant’s raw

test score and test paper (A. 164). The Company offered to

supply the raw test scores and test paper of any employee

who consented (A. 7). However, the Union flatly refused to

seek such consents (A. 44).

(2) The Union insisted that the Company provide it with

copies of the actual test battery. The Company, having

provided all the requested validation studies, a written ex-

planation of the test battery, and sample questions, offered

to permit the Union representative to take the test battery

6

(A. 6). The Union refused to accept this offer. The Com-

pany also offered to disclose the test battery and other

requested testing materials to a qualified psychologist of

the Union’s choosing (A. 6). The Union also rejected this of-

fer even though the test battery would have been useless to

a lay person without the assistance of such a psychologist

(A. 27, 50-51, 71-72, 79).

Although the Company’s attempts at accommodation

were rejected by the Union, the Board, in a two-to-one

decision, ordered the Company to give the Union the raw

test scores and actual test papers of the employees, without

their permission, and the test battery (P.A. 16a). The only

ostensible protection provided to safeguard the information

was to order the Union not to copy the tests or to disclose

them to past or future examinees (P.A. 16a). The dissenting

Board member, who would have required the Company to

divulge the test batteries oniy to a qualified psychologist of

the Union’s choosing, noted the futility of the Board's inef-

fectual restriction (P.A. 17a). Moreover, the Board's pur-

ported safeguards, limited as they were, did not cover the

confidential test scores of the employees (P.A. 16a).

When the Company declined to comply with the Board's

order, the Board sought enforcement by the Court of Ap-

peails. The court, in a two-to-one decision, enforced the

Board’s order forcing disclosure of all the testing data

demanded by the Union, including the confidential test

scores of the employees, and the validated test battery (P.A.

7a-8a).

Judge Weick, dissenting, acknowledged the need to ac-

commodate the competing interests at issue (P.A. 12a).

Recognizing the confidential and privileged relationship

between the administering psychologists and the

examinees, he held that:

“The disclosure of the test papers, as well as the

individual scores, would subject the psychologists

-

to the sanctions of disciplinary action which could

result in their suspension or even revocation of

their licenses by the state of Michigan”’ (P.A. 9a).

He further noted that the test battery was “‘in the custody of

qualified psychologists” and that ‘disclosure of such

papers would violate the Code of Ethics of the American

Psychological Association which has been recognized by the

statutes of the state of Michigan, Mich. Stat. Ann. §§

14.677(1Xb)”’ (P.A. 8a, 9a).

In addition, Judge Weick pointed out the futility of the

Board’s proposal to protect the test materials from im-

proper dissemination, labeling them as “really naive’’ (P.A.

lla; and concluded that the Board's order constituted a

gross abuse of discretion because it recognized only the in-

terests of the Union and failed to consider any of the other

conflicting interests involved (P.A. 12a).

SUMMARY OF ARGUMENT

The Court of Appeals has enforced an order of the

National Labor Relations Board which, if not reversed, will

require the disclosure to a union by professional

psychologists of raw test scores and actual test papers of

examinees without their consent, and of a validated test

battery. The order constitutes an intrusion into the con-

fidential relationship between the psychologist and the

client, a relationship which is recognized in the over 35

states which accord it a testimonial privilege.* Disclosure of

the raw test scores and actual test papers by the

professional psychologist also contravenes the ethical prin-

ciples of Amicus, principles which have been incorporated

in the licensing laws of most of the states in the country.‘

*See note 12, infra.

*See note 31, infra.

8

These principles give paramount importance to the protec-

tion of clients’ welfare, including the maintenance of the

confidentiality of potentially embarrassing information

such as test scores.

Disclosure of the raw test scores and actual test papers to

union representatives, who have no professional obligation

to safeguard their confidentiality or to refrain from

misusing them, also constitutes an invasion of the

examinees’ rights of privacy.

Finally, the order of the court below requiring that a

validated test battery be given to the Union conflicts with

the mandate of Title VII, 42 U.S.C. §§ 2000e. et seq., and

other fair employment practice laws and regulations which

require that methods of employee selection and promotion

be nondiscriminatory. Pursuant to guidelines issued by three

federal agencies charged with responsibility to insure non-

discriminatory employment practices,° only tests which

have been validated according to standards developed by

the APA may be used in employee selection and promotion.

Disclosure of such tests to persons with no professional

obligation to protect their security will destroy the tests’

validity.

ARGUMENT

I. FUNDAMENTAL INTERESTS OF EMPLOYEES AND

PSYCHOLOGISTS ARE IGNORED BY UNLIMITED

DISCLOSURE TO THE UNION OF PSYCHOLOGICAL

TEST SCORES AND TEST PAPERS LINKED WITH

THE NAMES OF THOSE TESTED

In ordering Detroit Edison to provide the Union with the

actual test scores and test papers of individual examinees,

the NLRB and the Court of Appeals have respected only the

*See note 40, infra.

9

asserted interests of the Union,’ and have ignored im-

portant interests of the tested employees and the psy-

chologists.* Detroit Edison attempted to accommodate all

competing interests by providing to the Union the test

scores of ail the examinees, without matching the scores

with their names, information unavailable to Company

management. The Company did offer to match test scores

with the identities of those examinees who consented;

however, the Union refused to seek such consenis.

A. Disclosure of Employee-Linked Psycholo-

gical Scores and Test Papers Ignores the Em-

ployee’s Interest in a Confidential Relationship

with the Psychologist

Confidentiality is crucial to fostering the degree of open-

ness between the psychologist and tested employees

necessary to the provision of professional psychological ser-

vices.” The Detroit Edison employees consented to take the

’See Kroger Co. y. NLRB, 399 F.2d 455, 457 (6th Cir. 1968), where

the court recognized that “‘the critical issue appears to be how to

recognize and how adequately to protect each of the conflicting in-

terests that are involved here.”

*The NLRB has asserted that no employee has raised any objection to

the disclosure of his test scores. However, neither has any employee-

consented to disclosure. Moreover, no employee is a party to this action.

The administering psychologists have a duty imposed by their code of

ethics and state licensing laws to maintain the confidentiality of test

results unless the client consents to disclosure.

*The Court of Appeals dispensed summarily with the claim of con-

fidentiality and privilege by analogizing to a case which held that a

promise made by a company that it wculd not disclose economic data

gathered from neighboring companies was not a valid defense to a

union’s request for information. General Electric Co. v. NLRB. 466

F.2d 1177, 1185 (6th Cir. 1972). The confidentiality required to foster a

fruitful relationship between psychologists and their clients and to

protect the clients’ privacy rights is quite different from a cor-

poration’s interest in preservation of economic data.

10

psychological aptitude tests with specific assurances that

their test scores and responses would be held in strictest

confidence.'® The effective operation of psychological tests

requires that individuals be placed in an atmosphere in

which they can display candor and honesty. Whether in a

testing or therapeutic situation, a psychologist’s clients may

be called upon to reveal personal thoughts, experiences,

and memories. The psychologist’s clients would refrain

from making such revelations without the assurance that

their communications would be held in confidence.

To ignore the confidential relationship between the

examinee and the psychologist would have a substantial

chilling effect on prospective test takers. If those who agree

to be tested face disclosure of their responses, many will

choose test answers they feel will not subject them to em-

barrassment or harassment, thereby destroying the ac-

curacy of the examination and the psychologist-client

relationship. Others will refrain entirely from participating

in the tests, even if it means foregoing the opportunity of

employment or advancement.

These considerations underlie the many state licensing

laws that assure confidentiality in the psychologist-client

relationship.'' These states have thereby recognized the in-

jury to the professional relationship and to the individual

client that can result from disclosure of psychological test

scores. Legislatures in a large majority of states also have

‘Even had these assurances not been given, the employees could

justifiably rely on their relationship with the psychologist to protect

their test scores from disclosure. The fact that the psychologist was

retained by the employer does not alter the client-psychologist relation-

ship. See Tweith v. Duluth. M & I Ry. Co., 66 F. Supp. 427 (D. Minn.

1946).

'' See footnote 31, infra.

recognized the need for confidentiality by granting a

testimonial privilege to client communications with a psy-

chologist.'?

Amicus does not urge that this Court must find a

privileged relationship in this case. Rather, APA submits

that the interests of the psychologist and employee should

'*The following states have recognized a psychologist-cli ivilege:

Ala. Code tit. 34, § 26-2 (1975); Alaska ng § 08.86.200 197); Ane

Rev. Stat. Ann. § 32-2085 (1976); Ark. Stat. Ann. § 72-1516 (1987): Cal.

Bus. & Prof. Code § 2918 (Deering 1975) and Cal. Evid. Code §§ 1010.

1028 (Deering 1966 & Supp. 1978); Colo. Rev. Stat. § 13-90-107(g)

(1973); Conn. Gen. Stat. § 52-146c (1977); Del. Code Ann. tit. 24

§3518 (1974); D.C. Code Ann. §§ 2-496, 14-307 (1973): Fla. Stat. Ana.

§ 490.32 (Aupp. 1978) (released July 1, 1978), § 90.503 (Special pam-

phiet 1978) (effective July 1, 1978); Ga. Code Ann. § 84-3118 (1975):

Idaho Code § 54-2314 (Supp. 1977); Act of Aug. 15, 1963, 1963 iil.

Laws 2912, § 6, reprinted in Ill. Ann. Stat. ch. 91-1, § 406 (Smith-Hurd

1966); Ind. Code Ann. § 25-33-1-17 (Burnes 1974); Kan. Stat. § 74-53-

23 (1972); Ky. Rev. Stat. § 319.111 (1978): La. Rev. Stat. Ann. § 2366

(West 1974); Me. Rev. Stat. tit. 14 R. Evid. 503 (Supp. 1975); Md. Cts.

& Jud. Proc. Code Ann. § 9-109 (1974 & Supp. 1977); Mass. Ann. Laws

ch. 233, § 20B (Michie/Law. Co-op. 1974 & Supp. 1978); Mich. Comp.

Laws Ann. § 338.1018 (1976); Minn. Stat. § 595.02(7) (1976): Miss.

Code Ann. § 73-31-29 (1972); Mo. Rev. Stat. § 337.055 (Supp. 1978);

Mont. Rev. Codes Ann. § 66-3212 (Supp. 1977); Neb. Rev. Stat. § 27.

504 (1975); Nev. Rev. Stat. §§ 49.215-49.245, 49.290 (1977): N.H. Rev.

Stat. Ann. § 330-A:19 (1966); N.J. Stat. Ann. § 45:14B-28 (West 1978):

N.M. Stat. Ann. § 67-30-17 (1974); N.Y. Civ. Prac. Law § 4507 (McKin-

ney 1963 & Supp. 1977); N.C. Gen. Stat. § 8-53.3 (1969); N.D. Cen.

Code R. Evid. 503 (Supp. 1977); Ohio Rev. Code Ann. §§ 4732.17)d)

4732.19 (Page 1977), 2717.02 (Page 1953 & Supp. 1978); Okla. Stat. tit.

59, § 1372 (1971); Or. Rev. Stat. § 44.040(h) (1977); Pa. Stat. Ann. tit.

63. § 1213 (Purdon Supp. 1977); $.D. Compiled Laws Ann. § 19-2-3.1

(Supp. 1977); Tenn. Code. Ann. § 63-1117 (1976); Utah Code Ann. §

58-25-8 (Supp. 1977); Va. Code § 8.01-399 (1977); Wash. Rev. Code §

18.83.110 (1976); Wyo. Stat. § 33-27-103 (1977).

12

be given appropriate consideration and not totally subor-

dinated to the asserted interests of the Union."’

B. Recognition of the Confidentiality of the Em-

ployee’s Test Scores and Test Papers Protects

the Employee’s Privacy.

Confidentiality is also essential to protect the client's

privacy.'* Tested employees now face the prospect that

their psychological and intelligence test scores and their

personal responses may become common knowledge of the

Union and their peers. Disclosure of the test scores to per-

sons unqualified to interpret them and possibly hostile to

the very concept of testing subjects the tested employees to

the risk of damaging harassment and embarrassment.’ A

'’The court ordered disclosure without any demonstration of need by

the Union. Presumably, the Union hoped that the matched test scores

would somehow be useful in its grievance with Detroit Edison, but the

mere assertion that information is necessary does not require an em-

ployer to supply the information in the exact form requested. See

National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149

(1956).

‘See Krattenmaker, /nterpersonal Testimonial Privileges Under the

Federal Rules of Evidence, 64 Gro. L.J. 613, 647-57 (1976), which

recognizes that a psychologist-client privilege is essentially a corollary

of a right to privacy.

‘Unlike the psychologist, the Union is under no professional or

ethical duty to safeguard against the improper dissemination of the test

scores and papers. Indeed, the Union has an incentive to encourage

dissemination. The Company's use of psychological testing as a

criterion for job placement thwarts the attainment of the Union's goal

of seniority as the sole criterion for job advancement. It is therefore in

the Union's self-interest to create disrespect for the tests. One method to

accomplish this aim would be to publish the scores of “top-notch” em-

ployees who fared poorly on the tests or to ridicule the test answers of

those who did well, in the guise of showing that the test is not a valid

predictor of job success. The Union has not demonstrated any interest

in, or appreciation for, the nature and severity of the effect of disclosure

on the employees involved.

13

severe societal stigma attaches to any suggestion of mental

deficiency.'® Even those tests that do not, in fact, measure

mental deficiency are often perceived as such by the unin-

formed when such tests are administered by a psychologist.

In the context of psychological testing, the employees’ right

to privacy must, at 4 minumum, include the freedom to choose

the circumstances under which their intelligence scores,

aptitudes and opinions are to be divulged.'’ This Court has

acknowledged that the individual’s right of privacy protects

against disclosure of personal data.'* In Whalen v. Roe, 429

U.S. 589 (1977), this Court upheld the constitutionality of a

‘The court in Merriken v. Cressman, 364 F. Supp. 913 (E.D. Pa.

1973), recognized the danger to the individual of the dissemination of

school-administered psychological test results. The court found that

publication of such test scores could result in ‘‘scapegoating in which a

child might be marked out by his peers for unpleasant treatment... .”

Id. at 915.

'"It has been said that:

‘The essence of privacy is no more, and certainly no less, than

the freedom of the individual to pick and choose for himself the

time and circumstances under, and most importantly, the extent

to which, his attitudes, beliefs, behavior and opinions are to be

shared with or withheld from others. The right to privacy is,

therefore, a positive claim to a status of personal dignity — a

claim for freedom, if you will, but freedom of a very special kind.”’

Reubhausen & Brim, Privacy and Behavioral Research, 65 Co. L.

Rev. 1184, 1189-90 (1965).

'* “The cases sometimes characterized as protecting privacy

have in fact involved at least two different kinds of interests.

One is the individual interest in avoiding disclosure of per-

sonal matters, and another is the interest in independence

in making certain kinds of important decisions.”

Whalen v. Roe. supra, 429 U.S. at 589-600 (notes omitted).

14

New York law which required the state to keep records of

the names and addresses of all individuals obtaining cer-

tain drugs by prescription. The state law strictly prohibited

disclosure of the patients’ names. The Court recognized the

privacy interests of the plaintiffs and the potentially em-

barrassing and harmful effect of disclosure, but found that

the statutory scheme ‘‘evidence(s) a proper concern with,

and protection of, the individual's interest in privacy,” /d.

at 605, since access to the confidential information was

rigidly safeguarded, id. at 601-02.""

No such safeguards or concern for the rights of the in-

dividual are evident in the Court of Appeals’ approach to

the present case. To the contrary, the Union has suc-

cessfully rejected all offers by the Company which would

safeguard the data from indiscriminate use.”°

Congress, the courts, numerous states, and _ the

psychologists’ code of ethics all recognize that the

disclosure of personal information akin to that involved

here can invade the individual's privacy. The individual's

‘Justice Brennan, concurring, summarized the Court's opinion as

follows:

“The Court recognizes that an individual's interest in avoiding

disclosure of personal matters is an aspect of the right of privacy,

ante, at 598-600, and nn. 24-25, but holds that in this case, any

such interest has not been seriously enough invaded by the

State....

“In this case, as the Court's opinion makes clear, the State's

carefully designed program includes numerous safeguards in-

tended to forestall the danger of indiscriminate disclosure.”

429 U.S. at 606-07.

*°The Court of Appeals adopted the Board's restrictions 01. ¢ use of

the actual test battery. Amicus asserts that this restriction i. no more

than an ineffective admonition. But even this insignificant protection

was not afforded to the employees’ test scores or answer sheets.

15

right to personal privacy has been protected either by

assuring confidentiality or providing very limited and

protected disclosure.

Thus, in the Professional Standard Review Law, 42

U.S.C. §§ 1320c, et seg. (Supp. V 1975), Congress ac-

commodated the government’s need for access to in-

formation concerning the cost and use of Medicare and

Medicaid aid with the individual's rights of privacy by

requiring the coding of the patient's name so as to ‘‘provide

maximum confidentiality as to the patient's identity... .”’

42 U.S.C. § 1320c-4(aX4). To assure compliance, Congress

attached criminal penalties for the unauthorized disclosure

of the data. 42 U.S.C. § 1320c-15. A three-judge district

court, in upholding the statute’s constitutionality,

reiterated that ‘‘maximum confidentiality is to be main-

tained concerning the information furnished by the

physicians to the Professional Standards Review

Organizations."’ Association of American Phys. & Sur. v.

Weinberger, 395 F. Supp. 125, 136-37 (N.D. Ill.), aff'd, 423

U.S. 975 (1975).

Similarly, the Freedom of Information Act permitting

public access to a wide range of government reports and in-

formation, exempts from disclosure those requests seeking

“personal and medical files and similar files the disclosure

of which would constitute a clearly unwarranted invasion of

personal privacy.’ S U.S.C. § 552(bX6). The Court of Ap-

peals for the District of Columbia explained that the ex-

emption is ‘‘designed to protect individuals from public

disclosure of intimate details of their lives, whether the

disclosure be of personnel files, medical files, or other

similar files."” Rural Housing Alliance v. United States

Dept. of Agr., 498 F.2d 73, 77 (D.C. Cir. 1974) (note omit-

ted). In another FOIA suit, Department of the Air Force v.

Rose, 425 U.S. 352 (1976), this Court held that disclosure of

material contained in personnel and medical files that

16

would otherwise “‘constitute a clearly unwarranted invasion

of privacy’’ would be permissible only if the names and

identifying characteristics of the subjects were deleted.

Even in the absence of congressional mandate, courts

have attempted to accommodate the individual's need for

privacy in personal information with competing interests.’'

In Lora v. Bd. of Ed. of City of New York, 74 F.R.D. 565

(E.D.N.Y. 1977), the court accommodated the interests of

students in the privacy of psychological diagnostic files with

those of a litigant asserting a class action civil rights claim

on the students’ behalf. The plaintiff sought production of

randomly selected, anonymous diagnostic and referral files.

In determining whether to permit even this limited

disclosure, a disclosure similar to that voluntarily made by

Detroit Edison, the court asked the following four

questions:

“First, is the identification of the individuals

required for effective use of the data? Second, is

the invasion of privacy and risk of psychological

harm being limited to the narrowest possible ex-

tent? Third, will the data be supplied only to

qualified personnel under strict controls over con-

fidentiality? Fourth, is the data necessary or sim-

ply desirable?”

Id. at S79.”

2! See Merriken v. Cressman, 364 F. Supp. 913 (E.D. Pa. 1973), which

held that a school-administered psychological personality test, seeking

answers to personal and intimate questions, violated the students’ right

to privacy. The test invaded the privacy of the students because they

were given no real choice but to take the test and because the students’

responses were not safeguarded. In the instant case, although the

examinees did consent to taking the tests, failure to safeguard the

examinees’ scores and responses would in itself invade their privacy —

particularly in view of the assurance they were given that their scores

would be held in confidence.

The court in Lora recognized that ‘‘[mJost persons protest not the

mere disclosure of private embarrassing or damaging information, but

17

In the instant case, neither the Board nor the Court of

Appeals addressed these important questions. Amicus sub-

mits that the answers to these questions would preclude

production of the test scores and papers. The Union,

dissatisfied with the information provided in anonymous

form, made no showing that the correlation of the names of

the examinees with their scores was useful. The Court of

Appeals ordered unbridled disclosure of the materials to

Union personnel who are not qualified to interpret them

without any consideration of whether the disclosure would

invade the examinees’ privacy or result in a risk of psy-

chological harm.

C. Requiring the Psychologist to Disclose A

Client’s Test Scores and Test Papers

Breaches the Confidential Relationship

Established with the Client and Violates the

Psychologist’s Code of Ethics.

Not only did the NLRB and the Court of Appeals ignore

the interest of the tested employees, but they also disre-

garded the professional responsibilities of the psychologist.

Disclosure of the test scores and papers to the Union

requires that psychologists breach the confidential relation-

ships established with their clients. Denying confidentiality

of the relationship has the potential to destroy not only the

trust the examinees placed in the psychologist, but also

public trust in psychologists generally. The court’s decision

may well force psychologists to refrain entirely from

rather the concomitant disclosure of identifying data."’ 74 F.R.D. at

580. However. the court noted that even the elimination of all identi-

fying data, “while undoubtedly reducing the degree of invasion of

privacy attendant upon dissemination, does not necessarily, then,

reduce that invasion to zero."’ /d. at 582.

18

keeping records in order to preserve their clients’ privacy

and the integrity of the relationship,’’ resulting in inferior

service to their clients.

Moreover, the court’s order is in direct conflict with the

psychologists’ ethical standards” and state licensing laws,”

including Michigan’s,’® which incorporate those stan-

dards. The Ethical Standards of Psychologists promulgated

by the American Psychological Association were designed

expressly to assure confidentiality and protect the privacy

of those served by psychologists.” The denial of these in-

terests would, in the words of Principle 3 of the Ethical

Standards, “reduce the trust in psychologists held by the

general public."’ Only if the integrity of these standards is

respected by the courts can they continue to serve as

guidelines to the practicing psychologist and a force for

ethical treatment of the public. The Court of Appeals’ or-

der profoundly discourages the enforcement of ethical stan-

dards for psychologists.

"See Slovenko, R., Psychotherapy. Confidentiality, and Privileged

Communication, 116 (1966):

‘(The best protection that can be ensured to the patient is the

exercise of extreme caution in writing records. . . . Incomplete

clinical records, of course, are not scientifically desirable, but the

therapist is in the unfortunate position of having to choose be-

tween keeping incomplete records or no records at all, or, on the

other hand, of subjecting his patient to the possibility of having

his most intimate confidences revealed. .. .”’

American Pschological Association, Ethical Standards of Psy-

chologists (1977 Revision).

**See note 31, infra.

**Mich. Stat. Ann. § 14.677(1Xb) (Cum. Supp. 1975).

?’During the period 1970 through 1976, APA's committee on ethics

took punitive action, ranging from censure to expulsion, against seven

psychologists for violation of the code’s requirement that client com-

munications be kept strictly confidential.

19

The Ethical Standards place upon the psychologist a

“primary obligation” to safeguard “information about an

individual that has been obtained . . . in the course of . . .

teaching, practice or investigation . . . .”” Preamble to Prin-

ciple 5. The court’s decision to order disclosure of the mat-

ched test scores to the Union directly contravenes this con-

fidentiality standard. The order totally ignores the

psychologist’s efforts to assure ‘‘the dignity and worth of

the individual and honor the preservation and protection of

fundamental human rights.”” Preamble to Ethical Stan-

dards of Psychologists.

Further, the Ethical Standards specifically safeguard the

individual’s test scores by directing that psychologists

“strive to insure that the test results and their inter-

pretation are not misused by others.” Principle 8c. Accor-

ding to the Standards for Educational and Psychological

Tests, a companion document to the Ethical Standards of

Psychologists, ‘‘[tlest scores should ordinarily be reported

only to people who are qualified to interpret them.’’*

Neither the Union nor its members are qualified to in-

terpret or use the scores properly. The Union’s refusal to

place the scores in the hands of a psychologist qualified to

interpret them suggests to Amicus that the Union may in-

*“American Psychological Association, Standards for Educational

and Psychological Tests, 32. The comment to Standard J2 recognizes

that “curious peers should not have access” to test scores. While

Amicus does not contend that the Union itself is a curious peer, its

members would be considered such. Moreover, the Union has an in-

centive to publicize these scores. See note 15, supra. Further, the com-

ment does not, as asssrted by the NLRB in its brief opposing the

petition for a writ of certiorari, leave open the question ‘whether un-

trained people should be given test scores.’ Rather, the unanswered

question involves whether untrained persons who must make a decision

to admit or hire based on the tests should be given training necessary

for the interpretation of scores or the interpretation. The Union was

given the interpretation of the test scores; the training of a Union em-

ployee has never been an issue in this case.

20

deed intend to use the scores in a manner harmful to those

tested. ‘‘Psychologists know that they bear a heavy social

responsibility because their recommendations and pro-

fessional actions may alter the lives of others.’’ Principle

le. Untrained Union officials may not appreciate the

potential effect the improper use of test results may have on

others.

The ethical standards make every effort to protect the

privacy rights and integrity of the relationship not only by

safeguarding dissemination of personal information to out-

siders but also by regulating the psychologist’s own use of

the data. The psychologist may discuss a client’s case only

for professional purposes with persons having a particular

concern with the case. Principle Sb. Written and oral

reports must be made with “‘every effort . . . to avoid undue

invasion of privacy,”’ Principle Sb, and “‘clinical and other

materials [may] be used in classroom teaching and writing

only when the identity of the persons involved is adequately

disguised.” Principle Sc. The psychologist must also

provide ‘for, the maintenance of confidentiality in the

retention and ultimate disposition of confidential records.”

Principle Sf.”

Finally, the court’s order directly contravenes the

psychologist’s responsibility to inform the client of the

limits of confidentiality. Principle 5d.°° The decision of the

*°To assure confidentiality, Dr. Roskind, Detroit Edison's

psychologist, maintains the records in a locked file cabinet in his office.

No one, other than professional psychologists, has access to the scores

(A.83).

*°The NLRB asserts in its brief opposing the petition for a writ of cer-

tiorari that “‘it is highly speculative that the Code of Ethics would in

fact be breached by the Board's order’’ as the APA’s contentions are

based on violation of the court's restrictions by the Union. While the

Board and the Court did place restrictions on the Union’s use of the test

battery itself, neither the Board nor the Court of Appeals restricted the

Union’s use of the test scores and papers.

21

Court of Appeals requires the psychologist to violate this

principle and to repudiate the assurances of confidentiality

given to the employees prior to their taking the tests.

If the Court of Appeals’ decision is not reversed,

psychologists will be forced to give a disclaimer of con-

fidentiality when testing clients. Such a disclaimer could

result in employees foregoing the opportunity of job ad-

vancement in fear that their test papers and scores will

become the subject of public knowledge and comment.

Those who take the test will do so without the candor

necessary for valid testing.

Requiring Detroit Edison psychologists to breach

professional confidences places them in a crossfire of con-

flicting demands. The Court of Appeals demands

disclosure while the psychologists’ professional ethics and

obligations require confidentiality. The Union has asserted

no justification to compel such a result.

The Ethical Standards of the APA govern not only the

conduct of APA’s members but also that of many non-

member psychologists since over thirty states, including

Michigan, require compliance with the APA Ethical Stan-

dards by licensed psychologists.*' Psychologists who violate

"See Ala. Code tit. 34, § 26-3 (1975S); Ark. Stat. Ann. § 72-1517

(1957); Conn. Gen. Stat. § 20-186 (1977); Del. Code Ann. tit. 24,

§ 351 XaX8) (1974); D.C. Code Ann. § 2-491(e) (1973); Ga. Code Ann.

§ 84-3105 (1975); Idaho Code § 54-230S(bX1) (Supp. 1977); Ill. Ann.

Stat. ch. 91-2, § 417) (1966 & Supp. 1978); Ind. Code Ann. § 25-33-1-

3th) (1974 & Supp. 1977); lowa Code Ann. § 147.76 (Supp. 1977); Kan.

Stat. § 74-S308(a) (1972); Ky. Rev. Stat. § 319.081 (1978); Me. Rev.

Stat. tit. 32, §§ 3816, 3837 (1977); Md. Ann. Code, art. 43, § 627 (1971);

Mass. Ann. Laws ch. 112, § 11%d) (Michie/Law. Co-op. 1975); Mich.

Comp. Laws Ann. § 338.1001(b) (1976); Minn. Stat. § 148.98 (1976);

Miss. Code Ann. § 73-31-21(aX1) (1972); Mont. Rev. Codes Ann. § 66-

320% 1 Xd) (Supp. 1977); Neb. Rev. Stat. § 71-3807 (1976); N.J. Stat.

Ann. § 45:14B-24(e) (West 1978); N.C. Gen. Stat. § 90-270.1SaX4)

(1975 & Supp. 1977); N.D. Cen. Code § 43-32-27(7) (Supp. 1977): Okla.

Stat. tit. S9, § 1361 (1971); Or. Rev. Stat. § 675.110(10) (1977); S.C.

ae,

the standards are subject to suspension or revocation of

their licenses.*? Disclosure of test scores and papers

violating the official standards could subject the

psychologist to such discipline.*’

The failure of the Board and the Court of Appeals to con-

sider the interests of the employees and the psychologists

must be corrected. ““The material which the company did

furnish to the union was. . . sufficient to permit the union

to process adequately the grievance pending before the Ar-

bitrator, or to perform its duties under the collective

bargaining agreement.” (P.A. lla) (Judge Weick, dissen-

ting).

Moreover, the court’s nd Board's total rejection of the

interests of the psychologist and the employee was not

limited to the context of industrial psychological aptitude

testing for employment promotions. The court has placed

the interests of psychologists and tested employees in a

totally subservient position to the naked claim of the Union

for information. It is evident that any disclosure of con-

Code § 40-56-60 (1976); S. D. Codified Laws Ann. §§ 36-27-27, 36-27-386)

(1977); Tenn. Code Ann. §§ 63-1118, 63-1119 (1976); Tex. Rev. Civ.

Stat. Ann. art. 4512C(8Ma) (Vernon 1976); Utah Code Ann. § 358-25-

11(10) (1974 & Supp. 1977); W. Va. Code § 30-21-6-(aX3) (1976). See

also the following states which have patterned their codes of ethics after

the APA Ethical Standards: Colo. Rev. Stat. § 12-43-104(3XMa) (1973):

Haw. Rev. Stat. 465-6(4) (1967); Mo. Rev. Stat. § 337.0314) (Supp.

1978); N.M. Stat. Ann. §67-30-S(BX1) (1974): Pa. Stat. Ann. tit. 63.

§ 1202) (Supp. 1977); Wis. Stat. Ann. § 455.08 (1974).

See Mich. Stat. Ann. § 14.677(10X6) (Cum. Supp. 1975).

Amicus does not assert that the State of Michigan or the APA

would discipline Dr. Roskind, Detroit Edison's industrial psychologist,

for disclosing the test scores or papers pursuant to the court’s order.

However, the fact that Michigan and the APA would not place Dr.

Roskind in such an untenable position in no way justifies the fact that

the court's order does violence to the ethical standards and the licen-

sing laws of Michigan.

23

fidential and private communications between an in-

dustrial psychologist and his clients could be ordered based

upon such a precedent. By refusing to recognize any con-

fidential relationship between the industrial psychologist

and the tested employee, the court has threatened every

aspect of the confidentiality of that relationship — whether

involving psychological testing or counseling at a school, in

an institution, at work, or in private psychotherapy.

Il. DISCLOSURE TO THE UNION OF PSY-

CHOLOGICAL APTITUDE TESTS WILL DES-

TROY THE VALIDITY OF THE TESTS AND

RESULT IN VOIDING OBJECTIVE AND NON-

DISCRIMINATORY EMPLOYEE SELECTION

PROCEDURES

The decision of the Court of Appeals, requiring a

professional psychologist to provide directly to the Union a

standardized, validated test battery, poses a substantial

threat to the continued use of objective, nondiscriminatory

employee selection devices, such as validated psychological

aptitude tests. The Court of Appeals’ decision is directly at

odds with the nondiscriminatory employee selection

procedures mandated by Title VII, 42 U.S.C. §§ 2000e, et

seq., Executive Order 11246, and the guidelines issued pur-

suant thereto by federal agencies charged with enforcement

of equal employment laws and orders.

The use of psychological aptitude tests for employment

purposes has become widespread in the United States both

in the private and public sectors. Its usefulness as an aid

toward objective and nondiscriminatory selection of em-

ployees has been demonstrated in several surveys,** in-

**See, e.g., Personnel Policies Forum in September, 1976 (PPF Survey

#114, p. 1 (BNA, 1976)).

24

cluding a study conducted by the United States Civil Ser-

vice Commission.**

With the increasingly widespread use of such tests, APA

has adopted guidelines to insure the validity and fairness of

those tests. Thus, the Ethical Standards of Psychologists

promulgated by the Amicus and binding on all APA mem-

bers, as well as on many nonmembers through in-

corporation in state licensing laws,*® establishes standards

for test administration, including procedures for test

security.*’

Further, APA, in conjunction with the American

Educational Research Association and the National Coun-

cil on Measurement in Education, has developed Standards

for Educational and Psychological Tests.** The Standurds

have been developed to aid in assuring reliability and

validity of testing by the psychological profession and in

part to assure that psychological testing conforms with the

requirement of Title VII and other fair employment prac-

tice laws that employee testing be nondiscriminatory. The

Standards set forth with specificity the measures that must

must be taken to provide evidence of testing reliability and

validity. See Standards at 25-55. In order to protect test

validity, the Standards require that ‘‘the test user share

**Status of Test Usage in FY 77, Test Services Section, Personnel

Research and Development Center, United States Civil Service Com-

mission (Dec. 1977).

*See statutes cited at note 31, supra.

*’Principle 8 states in pertinent part that ‘‘test users avoid imparting

unnecessary information which would compromise test security, but

they provide requested information that explains the basis for decisions

that may adversely affect that person... ."’ American Psychological

Association, Ethica! Standards of Psychologists 6 (1977 Rev.).

**American Psychological Association. Standards for Educational

and Psychological Tests (1974).

25

with the test developer or distributor a responsibility for

maintaining test security.” Standards at 67.°° In the ac-

companying comment the rationale for test security is made

clear:

‘In many cases, however, prior knowledge of test

items or scoring procedures could destroy validity

security may be compromised where

examinees have had much prior experience with a

public test, have been taught specific test items or

have heard a lot about the icst.”’

Standards at 67.

The Court of Appeals, in enforcing the Board’s order

requiring full disclosure of the test battery to the Union,

failed to consider either the interests of employers, or of

professional psychologists in maintaining test security. As a

result, professional psychologists are placed in the position

of being required under court order to violate the Ethical

Standards of the American Psychological Association

which have been incorporated in the licensing laws of

numerous states, including Michigan, as well as the Stan-

dards for Educational and Psychological Tests, by making

available to the Union a test battery which it does not have

the necessary skills or knowledge to use. Both the Board

and the Court of Appeals arbitrarily refused to consider the

logical alternative: to provide the test battery to a qualified

psychologist of the Union’s choosing for review.

If this Court does not reverse the order below, the test

battery which has been validated on three separate oc-

casions will be distributed to persons without responsibility

to secure the tests. The likely consequence of disclosure to

°See also American Psychological Association, Principles for the

Validation and Use of Personnel Selection Procedures, published by

the Division of Industrial-Organizational Psychologists (1975S). These

principles similarly require that the psychologist or other test user be

responsible for maintaining test securitty. /d. at 15.

26

lay persons, particularly to those who may in the future

take the test battery, may well be to destroy the validity of

the battery which necessarily depends on the naivete of the

test taker.

Since the passage of the 1964 Civil Rights Act, 42 U.S.C.

§§ 2000e, ef seqg.. a major objective in the use of

psychological tests for employee selection has been to en-

sure that such tests are nondiscriminatory. By requiring

disclosure of a validated test battery to a union represen-

tative, the Board and the Court of Appeals totally ignored

the requirements of Title VII and the guidelines which have

been issued by various enforcing agencies to ensure ob-

jectivity and nondiscrimination in employee selection

procedures.

In guidelines issued by three of the agencies responsible

for overseeing compliance with Title VII and related

executive orders, the requirements of test validity and

security have been recognized and the standards developed

by the Amicus specifically incorporated.*° The guidelines

require that tests be validated pursuant to standards con-

sistent with generally accpeted professional standards such

as those developed by the APA in the Standards for

Educational and Psychological Tests.*'

“See, e.g., 29 C.F.R. § 1607.SMa) (Equal Employment Opportunity

Commission); 28 C.F.R. § 50.14 (Department of Justice); 41 C.F.R.

§ 60-3.5 (Office of Federal Contract Compliance).

“Id. Further, the four federal government agencies charged with en-

forcement of fair employment practice laws, EEOC, Civil Service Com-

mission, Department of Justice, and Department of Labor, recently

proposed Uniform Guidelines on Employee Selection Procedures. 42

Feb. Rec. 65,542 (December 30, 1977). The proposed guidelines require

test users to demonstrate validity of the tests, consistent with generally

accepted professional standards ‘‘such as those described in the Stan-

dards for Educational and Psychological Tests,"’ 42 Feb. Rec. § SC, at

65,544, and provide for test security, 42 Fep. Rec.§ 12, at 65,546.

27

On at least three separate occasions, this Court has

recognized the importance of test validation to the en-

forcement of Title VII and similar laws. In the first case in

which this Court considered this issue, Griggs v. Duke

Power Co., 401 U.S. 424 (1971), the Court held that the

guidelines of the EEOC on testing were entitled to great

deference, 401 U.S. at 433-34, and that tests were to

be sanctioned only when they provided a ‘“‘reasonable

measure of job performance.” 401 U.S. at 436. The Court’s

mandate in Griggs v. Duke Power can be met only if tests

are validated; the irresponsible disclosure ordered by the

Board and the Court of Appeals would make validation im-

possible.

In a second case, Albemarle Paper Co. v. Moody, 422

U.S. 405 (1975), the Court reemphasized the deference to

, be given to EEOC’s testing guidelines. The Court

specifically noted that ‘‘these guidelines draw upon and

make reference to professional standards of test validation

established by the American Psychological Association.”

405 U.S. at 431. Further, the Court made clear that tests

used for selection and promotion of employees were to be

judged by whether they comported with the guidelines for

validation set forth by the Amicus. See also Washington v.

Davis, 426 U.S. 229, 247 & n.13, 251 & n.17 (1976);

Kirkland v. New York St. Dept. of Correctional Serv., 520

F.2d 420, 426 (2d Cir. 1975), cert. denied, 429 U.S. 823

(1976).

The Court of Appeals for the Second Circuit, when faced

with an issue similar to that addressed by the Board and the

Court of Appeals in this case, recognized the importance of

test security and the prejudice to future test takers if tests

were disseminated to future examinees. In Kirkland v. New

York St. Dept. of Correctional Serv., supra, 520 F.2d 420, a

race discrimination case, the Second Circuit overturned

that part of a district court’s order requiring the defendant

to make available for plaintiffs’ review a new promotion

28

test. 520 F.2d 427, 431. The Court of Appeals in Kirkland

recognized that tests, to be sanctioned as objective and non-

discriminatory, must be validated in accordance with

EEOC guidelines and specifically addressed and upheld the

need for test security:

“The District Court ordered that the new test

prepared by defendants be submitted to the plain-

tiffs for review. We find this requirement difficult

to comprehend. Presumably, this examination

will be taken by members of the plaintiff class in

competition with others. Permitting advance

review by plaintiffs would place all others at a

competitive disadvantage. If the District Judge is

seeking professional assistance from plaintiff's

expert, his order should so provide; and proper

steps should be taken to insure confidentiality.”

520 F.2d at 427.

Unlike the Board and the Court of Appeals in this case,

the court in Kirkland reached an equitable balance by

holding that if tests are to be provided to adverse parties,

they should be disclosed only through the agency of an ex-

pert professional psychologist. As this Court and the Sixth

Circuit have recognized, the National Labor Relations

Board should seek to acknowledge and accommodate all

legitimate interests involved in a proceeding before it. See.

e.g., National Labor Relations Board v. Truitt Mfg. Co.. 351

U.S. 149, 153-54 (1956); Kroger Co. v. NLRB, 399 F.2d 455,

457 (6th Cir. 1968).

Even before passage of Title VII, the General Counsel of

the Board refused to find a violation of the National Labor

Relations Act, 29 U.S.C. §§ 151, et seq., by an employer for

refusing to disclose copies of psychological test questions to

a union. In that case, as here, the company had explained

to the Board that advance inspection would allow the con-

tent of the test to be widely disseminated ‘‘and thus impair

29

the usefulness of the test."” NLRB G. C. Adm. Rul. No.

SR-657, 46 L.R.R.M. 1387, 1388 (1960). See also NLRB G.

C. Adm. Rul. No. SR-477, 46 L.R.R.M. 1252 (1960).

Detroit Edison has offered to provide the test battery,

which is in the possession of psychologists professionally

obligated to guard its security, to a qualified psychologist of

the Union’s choosing. Clearly this would accommodate the

interests of the Company, the Union, professional

psychologists, and future examinees. At the same time, it

would balance the mandate of the National Labor

Relations Board to insure informed collective bargaining

with the equally significant mandate of Title VII and the

professional standards of psychologists to insure objective

and nondiscriminatory employee selection procedures. See,

e.g., National Labor Relations Board v. Truitt Mfg. Co.,

351 U.S. 149 (1956); Kroger Co. v. NLRB, 399 F.2d 455,

457 (6th Cir. 1968).

CONCLUSION

Amicus American Psychological Association respectfully

submits that for the above stated reasons this Court should

reverse the decision of the United States Court of Appeals.

Respectfully submitted,

BRUCE L. MONTGOMERY

LINDA D. FIENBERG

MINDA S. FRAHM

Arnold & Porter

1229 Nineteenth Street, N.W.

Washington. D.C. 20036

Attorneys for Amicus Curiae

American Psychological

Association