# Amicus Curiae Brief — Watson v. Fort Worth Bank & Trust

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 1012

## Text

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No. 86-6139

In the Supreme Court of the United States

OCTOBER TERM, 1987

CLARA WATSON. PETITIONER
}

FORT WORTH BANK AND TRUS]

ON WRIT OF CERTIORARI TO THi
UNITED STATES COURT OF APPEAI
FOR THE Fifk ij tH CIRCUTI

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDELN!

ROMOER CLEC

Depu

OULSTION PRESENTED

ullineg

TABLE OF CONTENTS

Page
Interest of the United Siates |
Statement ....... |
Summary of argument 4
Argument ........ 6
The decisions resulting from a subjective promotion proc-
ess may be scrutinized effectively under the disparate
treatment analysis and should not also be subjected to
challenge under the disparate impact analysis 6
A. Disparate impact analysis has been applied only to
selection devices that do not assess each person’s
suitability for employment in an individualized way 6
B. Disparate treatment analysis provides ample protec
tion against possible discriminatory animus or
cultural bias arising from the use of subjective selec
tion devices. 12
C. Extending disparate impact analysis to the decisions
resulting from subjective selection processes would
upset Congress’s delicate balance of competing con
cerns in Title VII 17
D. The Uniform Guidelines on Employee Selection Pro
cedures do not provide that subjective selection proc
esses must be validated 26
Conclusion 28
TABLE OF AUTHORITIES
{ asses
4euilera v. Cook Cty. Police & Corrections Merit Bd
760 F.2d 844 (7th Cir.), cert. denied, 474 U.S. 907
(1985) 18
i/bemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 8, 10
18, 19, 25
irlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252 (1977) 14, 15
A4tonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th
Cir. 1987) 14
Bauer v. Bailar, 647 &.2d 1037 (10th Cir. 1981) 14
Bazemore v. Friday, No. 85-93 (July 1, 1986) 9 12. 17

(111)

IV

Cases-Continued Page
Connecticut v. Teal, 457 U.S. 440 (1982) 8, 1

Davis v. City of Dallas, 777 F.2d 205 (Sth Cir. 1985), cert
denied, No. 85-1533 (May 19, 1986) 18
Dothard v. Rawlinson, 433 U.S. 321 (1977) 8, 10
Douglas v. Hampton, §12 F.2d 976(D.C. Cir. 1975) 23
Firefighters v. Cleveland, No. 84-1999 (July 2, 1986) 24
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) 5,
10, 11, 15
General Telephone Co. v. EEOC, 446 U.S. 318 (1980) 24

Goodman v. Lukens Steel Co., No. 85-1626 (June 19,
1987) 16

Gottlieb v. Tulane Univ. of Louisiana, 809 F.2d 278 (Sth
Cir. 1987) 25
Griffin v. Carlin, 755 F.2d 1516 (ith Cir. 1985) 15
Griges v. Duke Power Co., 401 U.S. 424 (1971) 4, 6,

7, 8, 10, 15, 17, 18, 24
Guardians Ass'n v. Civil Serv. Comm'n, 630 F.2d 79

(2d Cir. 1980), cert. denied, 452 U.S. 940 (1981) 21, 23
Harrison vy. Lewis, $59 F. Supp. 943 (D.D.C. 1983) 19
Hazelwood Schv i Dist. v. United States, 433 U.S. 299

(1977) 9,12, 14
Johnson v. Transp. Agency, No. 85-1129 (Mar. 25,

1987) 24, 25
Los Angeles Dep’t of Water & Power v. Manhart, 435

U.S. 702 (1978) y
\fcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) > we

10, 11, 12, 21
Nanty v. Barrows Co., 660 F.2d 1327 (9th Cir. 1981) 13
Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) 12
New York City Transit Auth. v. Beazer, 440 U.S. 568

(1979) 8, 18
Parson v. Kaiser Aluminum & Chem. Corp., 575 ¥.2d

1374 (Sth Cir. 1978), cert. denied, 441 U.S. 968 (1979) 13
Personnel Adm'r v. Feeney, 442 U.S. 256 (1979) 14-15
Rogers v. Int'l Paper Co., 510 F.2d 1340 (8th Cir.)

vacated, 423 U.S. 809 (1975) 25
Rowe v. General Motors Corp., 457 F.2d 348 (Sth Cu

1972) 13-14

Rovaly Viissouri Hiw) a Transp Communion 655 | 2d 159
(Sth Cir. 1981) 13

y
Cases —- Continued: Page
Sheet Metal Workers v. EEOC, No. 84-1656 (July 2,

1986) 24, 25
Smith v. Olin Chemical Corp., 555 F.2d 1283 (Sth Cir.

1977) 18
Steelworkers v. Weber, 443 U.S. 193 (1979) 24, 25
Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir.

1976), cert. denied, 443 U.S. 919 (1977) 14
Teamsters v. United States, 431 U.S. 324 (1977) 6,9

11, 12, 14, 15, 24
Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248 (1981) 13
United States v. South Carolina, 445 F. Supp. 1094
(D.S.C. 1977), aff'd mem. sub nom. National Educa

tion Ass'n v. South Carolina, 434 U.S. 1026 (1978) 18
U/.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711

(1983) 13, 17
Wade v. Mississippi Coop. Ext. Serv., 528 F.2d 508 (Sth

Cir. 1976) 13
Washington v. Davis, 426 U.S. 229 (1976) 18, 19, 22
Yuhas v. Libbey-Owens-Ford Co., 562 F.2d 496 (7th Cir

1977), cert. denied, 435 U.S. 934(1978) 18
Zahorik v. Cornell, 729 F.2d 85 (2d ¢ 1984) 20

Statutes, regulations and rule

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e ef

seq 2,6
§ 703(aXil), 42 U.S.C. 2000e-2(a)(1) 12, 23
§ 703(aX2), 42 U.S.C. 2000e-2(a)(2) 7, 11, 23
§ 703(h), 42 U.S.C. 2000e-2(h) 26
§ 703(j), 42 U.S.C. 2000e-2()) 25
§ 706, 42 U.S.C. 2000e-5

Equal Employment Opportunity Act of 1972, Pub. L. No

92-261, 86 Stat. 103 23.24
29 C.F.R

Pt. 1607 1 5. %6

Section 1607.3A %

Section 1607.6B 27

Section 1607.16Q 26

Fed. R. Cw. P. 2a) ;

Vi

Miscellaneous Page

APA, Principles for the Validation and Use of Personne!

Selection Procedures (3d ed. 1987) 22
Bartholet, Application of Title V11 to Jobs in High Places,
95 Harv. L. Rev. 945 (1982) 21, 23, 27

Blumrosen, The Legacy of Griggs: Social Progress and
Subjective Judements, 63 Chi.-Kent Il Rev |
(1987) 19, 21, 23
Booth & Mackay, Lega/ Constraints on Employment Test
ing and Evolving Trends in the Law, 29 Emory L.J. 121
(1980) lv
W. Byham & M. Spitzer, The Law and Personnel Testing
(1971)
W. Cascio, Applied Psychology in Personnel Management
(2d ed. 1982) 21
Comment, Courts, Psychologists, and the EEOC’s Uni

form Guidelines: An Analysis of Recent Trends Affect
ing Testing as a Means of Employee Selection, 36

Emory L.J. 203 (1987) 19
100 Cong. Rec. (1964)

p. 6562 24

p. 8442 24

p. 8500 24

p. 9601 24

p. 13078 24

p. 14314 24

p. 15893 24

117 Cong. Rec. 31960 (1972) 24

118 Cong. Rec. 1815-1816 (1972) 24

Cooper & Sobol, Seniority and Jestinge Under Fai
Employment Laws: A General Approach to Objective
Criteria of Hirine and Promotion, 82 Harv. L. Rev
1598 (1969)

Denis, Subjective Decision Makine: Does ut Have a Place
mt tite Emplovyine nt Process’, 11 Empl Rel L.J. 270
(1985) 13, 15

EEOC, Guidelines on Employvinen ir ne Procedures
(Auge. 24, 1966) Z

38 Fed. Reg. 12333 (1970) 26

Vil
Miscellaneous — Continued: Page
43 Fed. Reg. 38291 (1978) 27
44 Fed. Reg. 12002 (1979) 27

Furnish, A Path Through the Maze: Disparate Impact
and Disparate Treatment Under Title VII of the Civil
Rights Act of 1964 After Beazer and Burdine, 23 B.
L. Rev. 419 (1982) 1]

E. Ghiselli, Theory of Psychological Measurement (1964) 20

Gwartney, Asher, Haworth & Haworth, Séfatistics, the
Law and Title Vil: An Economist’s View, 54 Notre
Dame Law. 633 (1979) 19, 21, 23

Haney, Employment Tests and Employment Discrimina
tion: A Dissenting Psychological Opinion, 5 Empl
Rel. L.J. 1 (1982) 16

H.R. Rep. 92-238, 92d Cong., Ist Sess. (1972) 24
Hunt & Pazuniak, Special Problems in Litigatine Upper

Level Employment Discrimination Cases, 4 Del. J

Corp. L. 114 (1978) 21, 23
3 A. Larson & L. Larson, Employment Discrimination

(1986) 10, 11, 1S, 21, 22, 27
Lerner, Employment Discrimination: Adverse Impact,

Validity, and Equality, 1979 Sup. Ct. Rev. 17 19, 23, 25

Lerner, Washington v. Davis: Quantity, Quelity and
Equality in Employment Testing, 1976 Sup. Ct. Rev
263 21, 23
Maliz, Jitle Wil and Upper Level Employment—A
Response to Professor Bartholet, 77 Nw. U. L. Rev. 776

(1983) 23, 24
M. Miner & J. Miner, Emplovee Selection Within the
Law (1979) 21, 23

Note, Developments in the Law—Employment Dis
crimination and Title Vil of the Civil Riehts Act of
1964, 84 Harv. L. Rev. 1109 (1971)

Note, Evaluation of Subjective Selection Systems in Tith

Vill Employment Discrimination Cases: A Misuse oj
Disparate Impact Analysis, 7 Cardozo L. Rev. $49
(1986) Z

Vill

Miscellaneous — C ontinued

Note. lL eval Implications of the Use of Standardized
Ability Tests in Employment and Education, 68 Colun
L. Rev. 691 (1968)

4. Outerbridge, Personnel Res. and Dev. Ctr., OPM
TM-79-18. A Survey of Test Validation Study Cosi!
(Aug. 1979)

Rachlin, Title Vil: Limitations and Qualifications, 7 B.«
indus & { om | Rev 473 (1966)

B. Schiei & P. Grossman, Employment Discriminatior
Law (1983) ;

“~*

S. Rep. 92-415, 92d Cong., Ist Sess. (1972)

Hn the Supreme Court of the United States

OcTOBER TERM, 1987

No 86-6139
CLARA WATSON. PETITIONER
’

FORT WORTH BANK AND TRUS!

ON URIT OF CERTIORARI TO THi
UNITED STATES COURT OF APPEAI!l
POR THE FiF lH CIR i]

Battt FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENI

INTEREST OF THE UNITED STATES

Ihe Attorney General and the tr qual Employment Oj
imty Commussion (EEOC) have significant Title VII entorce
zz. ’ , , . ’ tf saec ; ’
nent responsibilities. See 42 U.S.C. 2000e Ihe United State

as the nation’s largest employer, tS also subDject to litle Vil

bligations. Finally, the proper interpretation of the Unit
suidelines on Employee Selection Procedures, 29 C.F.R. P
1607, promulgated | riOUS agencte t the Unned S

d78 i i
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.
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general review (and rare reversal) by respondent’s highest of-
ficials (J.A. 194-195; Il Tr. 80-92). Respondent also pointed out
that petitioner’s sample size was in many respects too small for
drawing legitimate statistical inferences and that her statistician
had not considered the relative qualifications of the persons in
the applicant pool, the distribution of applicants for specific
openings, or the influence of market factors (11 Tr. 181-196).
Finally, respondent demonstrated that blacks comprised 11.8%,
192%, and 22.8% of the population of the county,
metropolitan area, and city, respectively (J.A. 202).

Based on this evidence, the district court found (J.A.
199-201) that existing black employees (such as petitioner) did
not share a common question of law or fact with nonemployee
applicants and that existing employees formed too small a group
to satisfy the “numerosity” requirement of Fed. R. Civ. P
2¥a); accordingly, ut subdivided the class into applicants and
employees and held that petitioner could not advance claims on
behalf of exher class (J.A. 207). On the merits, the court held
that respondent's articulated reasons for failing to promote pet!
lioner were not pretextual and that, although petitioner “made
allegations of discrimination by defendant in hiring, compensa-
tion, initial placement, promotions, * * * and ot ier terms and
conditions of employment, there [was] little or no evidence of
discrimination in these categories” (J.A. 197, 201). Finally, after
finding that petitioner had “proceeded zealously on behalf of
the group of blacks who applied for employment [with] the
[bjank,” u ruled that “no discrimination against blacks as a class
hald] been proved on the basis of defendant's hiring practices”
(J.A. 202)

b The court of appeals affirmed in part and reversed in part
(J.A. 204-252). lt reyected petitioner’s argument that the district
court had abused us discretion in decertifying the class and m
holding that petitioner was not a proper class representative
(J.A. 208-212). On the merits, u held that “a Title Vil challenge
io an allegediy discretionary promotion system ts propertly
analyzed under the disparate treatment model rather than the
disparate impact model” (J.A. 213), that there was “no indica
ion m the record, nor [was] there any suggestion * * * Dy [peti

* * * that the district court neglected to consider the

poner}

uustical evidence presented Dy [petitioner]

redibility of the
pianations tor ws

in terms |
jluatineg the

lrespondent's} prottered
decisions” (J.A. 214 n.13), and
‘the district court's finding that the [Dlank’s explanation

is action were not pretexts for discrimination ts not clear!
rroneous (J \ 215)

promotvuon

hos
inal

4)

Finally, the court held that the hiring
rimination claims of the applicant class should have been
usmissed without prejudice (since there was no proper cia
presentative); wt remanded the case tor this purpose (J.A
1S)

SUMMARY OF ARGUMENT

\ Uisparate treatment was the principal evil ¢ T had
md when wt enacted T ithe Vil ihe title Vil ni eri

mMmMmunity soon observed however (nat en pioyel A

mn2g tO U landardized tests and

other obvpective credential

‘ a1

juirements which often had an adverse exclusionary ett
nbers of groups protected by Title Vil and which bor:

anil clationship to the employment in question. It wa

ponse to tn oncern that the Court in Griges v. Duke Power
401 U.S. 424 (1971)

rirst approved use Of dispar ;

mpa
iS a means of establishing unlawful employment discrin
ihe ( it held that a Title Vil violation may b :
; ul pt ; in : \T in opr i¢ i ] !
i Kcludes | 1 mdividuals tron
pportu ind i “manit lated
ft Db. The Court ha
’ : » 7 ’ ’ ' | ’ "
4 : ‘ na i] | Nill ) :
uf : nai a si vying (hal a pi
Md 1] nembet ia : is :
wmnsn at mata Vil ia
( : : ‘
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\ if ;

jective selection processes, only disparate treatment, and not
disparate impact, theory applies. See AfcDonnell Douglas Corp
v. Green, 411 U.S. 792 (1973); Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978).

B. Disparate treatment theory provides the protection that
Congress intended against any discriminatory animus of
cultural bias that may arise from the use of subjective selection
processes. Selection processes are subjective when they are
discretionary and nonmechanical and depend upon the mental
operations of the decisionmaker. This Court has routinely re
jected arguments that disparate treatment analysis ts unsuited to
the task of examining the legality of subjective selection devices
Courts have often found disparate treatment to exist where a
subjective selection process with an aaverse impact has inex
plicably been used. That petitioner iailed to prevail on het
disparate treatment claim here does not show that disparate
treatment analysis ts an inadequate response to discriminatory
subjective decisionmaking; i shows rather that petitioner tailed
to convince the courts below that she was a victim of such
discriminatory decisionmaking

( Extending disparate impact theory to employee selec
tions resulting from subjective processes would undermine other
policies with which Congress was concerned in adopting Title
Vil. Disparate impact analysis is simply not suited to in
vestigating whether the decisionmaking processes that constitute
subjective selection procedures are discrimimatory or not. A
detendant could rarely, if ever, validate or otherwise formally
substantiate its subjective judgments. Subjective judgments
typically assess intangible qualities, which cannot be measured
in the manner that ts necessary for validation or other tormal
supstantiation. Accordingly, applying disparate impact theory
to the decisions resulting from subjective selection processes
woyld inevitably lead employers either to abaridon subjective
processes or, where such replacement is too burdensome,
restrictive, OF expensive, to superimpose numerical quotas on
employment systems using subjective devices. Neuher resull
would be consistent with the ment of the 1964 C onegress

) Ihe Uniform Guidelines on Employee Selection Pro
cedures, 29C FR. Pt. 1607 (1978), do not provid that subspes

h

ive selection processes must be validated or otherwise formally
upDstantiated. (in the

contrary, the Ceudelmes provide

ina
,here a subsective selection DrOCcess t5 ih ssuc

an employer may
justify continued use of the procedure in accord with Federal

law.” The United States and the EEOC beleve that an employ

an justify “contmmued use of the procedure m accord wit!
tederal law” by showing that its recourse to and application

part ular subpective
ne

ia

selection process is reasonably related

requirements Of the joD or other |

usiness need asm Al
:

isparate treatment case

ARGUMENT

THE DECTSIONS RESULTING FROM ASUBIECTIVE PRO
MOTION PROCESS MAY BE SCRUTINIZED EFFECTIVE
LY UNDER THE DISPARATE TREATMENT
AND SHOULD NOT ALSO &I
CHALLENGE UNDER THE

ANALYSIS
SUBJECTED T0
DISPARATE IMPACT

ANALYSIS
Petitioner contends that the outcon | subrecti /
on processes like that employed Dy pondent mu pa
ru under the disparate impact analysis of Grigg Duk
Power ( 401 U.S. 42411971). Based on our understanding ot
’ ‘ our ASE finciuding Crriges usell). our CA pPEe»rien MJ
rine tittle Vil of the Civel Riehi Ac he bala ‘
‘ ere 1964, and the Umtorm Crndel n Emmy
? ‘ ibe that ti ( }
’ ; it 74
4 Disparate Impact Analysis has Been Applied Only to Setex
tien Devices [hat Do Not Assess Each Person's Suitability
for Employment in an Individualized Way
VA Hewin f pia y ti ( ul ispara Da
i | / if ‘ na Hd ma tt
' 1Y64 : i* ;
: : ‘a | ‘
' Vil
, 1) ‘4 > ,iiy } : ‘

9

Contrary to petitioner’s argument (Br. 15-20), however, the
Court has not treated disparate impact analysis as the rule and
disparate treatment analysis as the exception. In fact, the Court
since Griggs has refused to accept the proposition that a prima
facie Title VII violation may be established without proof ol
discriminatory motive in every circumstance in which an
employment practice or combination of employment practices
has an adverse effect on a protected group. Thus, in Los
Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711
n.20 (1978), the Court rejected the contention that the adoption
of a gender neutral pension plan “would itself violate Title VII
because of its disproportionately heavy impact on male
employees. Cf. Griggs v. Duke Power Co., 401 U.S. 424.” The
Court said (435 U.S. at 711 n.20):

* * *(Ujnder Title VII * * * the male employees would not
prevail. Even a completely neutral practice will inevitably
have some disproportionate impact On one group Of
another. Griggs does not imply, and this Court has never
held, that discrimination must always be inferred trom
such consequences.

Moreover, where non-mechanical selection processes have been
in issue, the Court has consistently inquired only whether Title
VII plaintiffs have successfully proven — by statistics or other
evidence —the presence of discriminatory motivation. See, é.g.,
Bazemore v. Friday, No 85-93 (July 1, 1986); Hazeiwood
School Dist. v. United States, 433 U.S. 299 (1977); Teamsters v.
United States, supra. Indeed, the Court has at least twice
strongly implied that disparate impact theory ts inapplicable in
challenges to subjective selection processes.

McDonnell Douglas Corp. v. Green, 441 U.S. 792, 805-807
(1973), concerned a discretionary decision not to rehire an in-
dividual who had participated in unlawful conduct directed
against an employer. Contrasting such a decision with the type
of mechanical decisionmaking processes that were in issue in
Grieves, the Court noted (411 U.S. at 806 (citation omitted)) that
Criees

dealt with standardized testing devices which, however
neutral on their face, operated to exclude many blacks who
were capable of performing effectively in the desired pos!

10

tions. Griggs was rightly concerned that childhood defi
ciencies in * * * education and background of minority
citizens, resulting from forces beyond their control, not be
allowed to work a cumulative and invidious burden on such
citizens for the remainder of their lives. Respondent,
however, appears in different clothing. *** [His
employer] does not seek his exclusion on the basis of a
testing device which overstates what is necessary for com-
petent performance, or through some sweeping disquali
fication * * *. [His employer] assertedly rejected [him] for
unlawful conduct * * * and * * * this cannot be thought
the kind of “artificial, arbiirary, and unnecessary barriers
to employment” which the Court found to be the intention
of Congress to remove.

Accordingly, the Court did not require the employer to
demonstrate that its subjective refusal to rehire had a manifest
relationship to the requirements of the job (id. at 805-806)

In Furnco Constr. Corp. v. Waters, 438 U.S. 567, 572, 575
(1978), the Court expressly refused to apply the disparate im
pact analysis to an employer’s practice of hiring only those per
sons whom his superintendent knew were experienced or had
been recommended. The Court contrasted the selection device
in issue there with “employment tests * * * or particularized re
quirements such as * * * height and weight specifications” (id
at 575 n.7), as were involved in Griggs, Albemarle Paper Co.,
and Dothard v. Rawlinson.*

As petitioner notes (Br. 22), there was no evidence of group-wide
disparate impact in McDonnell Douglas. But that is not the reason the Court
gave for rejecting application of the Griggs “manifest relationship” require
mem; rather, the Court in McDonnell Douglas said that the employer was not
subject to the more stringent Griggs-detense because the challenged practice
was a “predictive evaluation resistant to empirical proof” (411 U.S. at 806
n.21)

* Petitioner seeks to distinguish Furnco (Br. 23) on the ground that there
was no showing that the employer's hiring practices had a disparate impact
Bul this distinction does not explain why the Court “foreclose[d] on remand
further litigation on the Griggs question of whether [the employer's} hiring
practices had a disparate impact” (fFurnco Constr. Corp. v. Waters, 438 U.S
at 583 (Marshall, J., dissenting)). That is why various commentators have con
cluded that the Court in Furnco held disparate iapact theory inapplicable u

chalienges to subjective selection processes. See, ¢.2 1 A. Larson &

| Larson, Employment Discrimination § 76.42 a «615-83 to 15-85 (1986)

McDonnell Douglas and Furnco illustrate that the Court has
heretofore declined to extend the disparate impact analysis
beyond the particular form of employment discrimination
associated with the use of objective, mechanical selection
devices. It has said that an employer “limit[s], segregate[s], or
classif[ies] his employees or applicants” within the meaning of
Section 703(aX(2) when, by using such a device, the employer
separates individuals into uniformly defined groups from which
ultimate employment decisions will be made; and where the de-
vice is not job-related and has a statistically sign'ficant adverse
effect on members of a protected group, the Court has said that
the “limit{ation], segregat{ion], or classiffication]” “deprive|s]
or tend[s}] to deprive any individual of employment oppor-
tunities or otherwise adversely affect{[s] his status as an
employee, because of such individual’s race, color, religion, sex,
or national origin” (42 U.S.C. 2000e-2(a)(2)). But the Court has
also strongly implied that an employer does not “limit, segre-
gate, or classify his employees or applicants” within the meaning
of Section 703{a)(2) when it makes subjective decisions about
particular employees or applicants, even though a series of those
decisions may cumulatively result in a numerical or propor-
tional racial disparity in the employer’s workforce.’ Rather, the
Court has indicated that such cases are properly treated as
{hereinafter Larson}; Furnish, A Path Through the Maze: Disparate Impact
and Disparate Treatment Under Title VII of the Civil Rights Act of 1964 After

Beazer and Burdine, 23 B.C. L. Rev. 419, 438-439 (1982); AFL-CIO Br. at
10-11, in Connecticut v. Teal, supra

* See AfcDonnell Douglas Corp., 411 U.S. at 805-806; Furnco Constr
Corp. v. Waters, 438 U.S. at $75 n.7, 578; Teamsters, 431 U.S. at 334-336,
339-340 n.20

Where mixed-component or multi-step selection processes are involved, of
course, the Court has said that a plainuff may challenge any objective compo
nemt of that process for its own disparate impact. See Connecticut v. Teal,
supra. Bul petitioner has not attempted to do so in this case. Rather, she
challenges the selection process as a whole, which she characterizes as subjec
tive and discretionary. See Pet. Br. 4-6, 40, 47-48. Because the selection proc
ess includes both objective factors and subjective discretion, we agree that i
should be treated as subjective and turther submu that u should be

challengeable only under the disparate treatment theory. See Larson § 76.34
at 15-85 to 15-86, 15-91 to 15-98

| ,

arising under Section 7OMavl) of the statute and aS involving

only a possible “pattern or practice” of intentional discrimina

von

B. Disparate Treatment Analysis Provides Ample Protection
Against Possible Discriminatory Animus or Cultural Bias
Arising from the Use of Subjective Selection Devices

Petitioner’s principal reason for suggesting that disparate im
pact analysis should be applied to subjective selection devices 15S

(Br. 34-44) that, in her view, disparate treatment analysis Goes

not provide sufficient protection against the discrimimatory

ynimus or cultural bias that may arise from the application ol

[Nose devices We adisaegree

Subjective selection devices mvolve, in this Cour
vords, “predictive evaluation|s| that are “resistant (oO empiri 1
proof” (McDonnell Dougias Cor} 441 U.S. at 806 0.21). Such
include decisional components of unstructured perso

~ * F%

1€.4 c il ervicews | purl

an | ‘an ,}

decisions, OF supervisor ratings based on personal experience
with candidates for purposes of promotion decisions) and
assessments based on unstructured weighing of specified objec-
live considerations (such as grades, prior experience, and
references). The common attribute of subjective selection proc
esses 1s their reliance on judgment, intuition, and discretion
Mental operations such as these are, of course, the focus of
disparate treatment analysis and this Court has repeatedly re
jected arguments that this analysis is inadequate to its task. See,
e.g., U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711.
716-717 (1983); Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256-260 (1981).

Ihe Court’s confidence in disparate treatment analysis is
equally appropriate here. Courts applying disparate treatment
analysis have consistently found decisions resulting from inex
plicable and unwarranted recourse to subjective selection prox
esses to be motivated by discriminatory intent. See generally B
Schler & P. Grossman, Employment Discrimination Law
191-205 (1983); Denis, Subjective Decision Makine: Does it
Have a Place in the Employment Process?, 11 Empl. Rel. L.J
270-276 (1985). Courts are well aware that subjective selectior
processes are “vulnerable to either conscious or unconscious dis
crimination by the evaluating supervisors” (Wade v. Mississippi
Coop. Ext. Serv., 528 F.2d 508, 518 (Sth Cir. 1976)), especially
where the evaluating supervisor is of a race or sex different from
that of th: applicant (see, e.g., Roval v. Mlissouri Hwy. &
Transp. Comm'n, 655 F.2d 159, 164 (8th Cir. 1981); Nanry »
Barrows Co., 660 F.2d 1327, 1334 (9th Cir. 1981)). Likewise.
courts have tound discriminatory treatment where the employe:
has no substantial job or business-related reason for employine

an entirely subjective selection process — as is often true when

ihe employer ts tilling jobs that require minimal or easily quan

fred skills. See. e.¢ Parson \. Aatser Aluwmnum & Chen
Corp., 575 F.2d 1374, 1385-1386 (Sth Cir. 1978). cert. denied
441 U.S. 968 (1979); Rowe v. General AMlotors Corp., 487 F.2d

348, 359 (Sth Cir. 1972). Moreover, this Cou Je.
pattern and practice disparate treatment cases make clear tha
statistically significant disparities Ma pe used | IpproT ii¢
rcumstances to miler discriminatory intent And. tollowine
hese “pattern and practice’ decisions, the courts of appea
ave consistently held that unwarranted recourse ID pec
ection processes can provide the missing tink f

atistical disparities and iiegal discrin
Bailar, 647 &.2d 1037, 1045 (10th Cir. 1981); S
General Motors Cor $42 F.2d 445. 450-451 (7th Cu 976)

" deemed. 433 U.S. 919 (1977). Thus. both theory and pra
contirm that disparate treatment theory an erie
rerre ‘ mul GISc ir y sSUDIEC . 1¢ Sid alk
~ 2. Pe er, however, suggests (Br. 24-25, 35, 41-44)

. 2
S10 F.2d 14 (1987) (en Danc), tha iD }
» ri sn , ,
n * av /_ “a ‘ -
s “ sme
:
\
>

such judgment therefore be rigidly eschewed. “In the aggregate,
heightened probabilities for excellence are not a function of the
validity of any particular selection device,” but “are the result of
a total situation in which vast numbers of employers are tree to
experiment with an unlimited number of possible qualitative
requirements, discarding those that seem unsatisfactory and
replacing them with others that seem more promising, and so on
and on, in a continuing, open-ended process” (Lerner, supra,
1976 Sup. Ct. Rev. at 304-305).?*

2. Ruling that the disparate impact theory ts applicable to
decisions resulting from subjective selection processes would,
therefore, create an irresistible incentive for employers to aban-
don subjective selection processes in favor of objective ones or,
where such replacement is too difficult or expensive, to
eliminate the statistical disparity by superimposing quotas upon
them.?* Neither result would be consistent with the intent of the
1964 Congress. *°

necessary to validate these objectified decision processes. But, as several
courts have noted, “construct validation” builds on content and criterion
validation and, accordingly, cannot piacticably be conducted where content
and criterion validation are infeasible. See, e.g., Guardians Ass'n v. Civil Sers
ice Comm'n, 690 F.2d at 92; Douglas v. Hampton, 512 F.2d 976, 985 (D.¢

Cir. 1975)

** Accord, M. Miner & J. Miner, supra, at 143; Blumrosen, supra, 63
Chi.-Kent L. Rev. at 18; Maltz, Title Vil and Upper Level Employment —A
Response to Professor Bartholet, 77 Nw. U. L. Rev. 776, 789 (1983), Hunt &
Pazuniak, supra, 4 Del. J. Corp. L. at 133; Lerner, supra, 1979 Sup. Ct. Rev
at 23; Gwartney, Asher, Haworth & Haworth, supra, 54 Notre Dame Law., at
642 0.20

2% Even petitioner’s most vocal supporters disagree with her assertion (Br
39-41, 44-49) that employers would not be forced down one of these two
roads. See, e.¢., Bartholet, supra, 95 Harv. L. Rev. at 1026-1027 (“Another
result might be increased pressure for quota or racially proportionate hiring
among those satisfying ceriain minimum qualifications{,| * * * [fjor u will
probably be difficult to demonstrate the job-relatedness and business necessity
of many of these selection systems, in large part because ut ts difficult to deter
mine what good performance is and how to measure ut. * * * Selection on a
racially proportionate basis seems an appropriate solution.”), Blumrosen,
supra, 63 Chi.Kem L. Rev. at 17, 35-36 (same)

” Petitioner errs in suggesting (Br. 26-29) that the intent of the 1972 Con
gress is relevant here. In 1972, Congress did not amend the language of Ses

tion 706¥¢Maxl) and (2) in any pertinent respect. See Equal Employment

24

As this Court has noted, “Title Vil would not have |t
enacted into law without substantial support from legisiator
both Houses who traditionally resisted tederal reguiatior
private business (S/fee/workers \ Weher. 444 US. 1934 ut”
(1979)). See also Firefighters v. Cleveland, No. 84-1999 (July 2
1986), slip op. 16-18; Sheet Metal Workers v. EEOC, N
84-1656 (July 2, 1986), sip op 27-39 [hese legisiat
resistance arose trom their Dele! that “jajny attem;
prescribe the qualifications that employers may or may

in 1b selection necessarily conthicts with a value thal g

held by members of a broad spectrum of American

ilue of employer autonomy” (Maltz, supra Nw. U. LR
it /3Y) [hese “legislators demanded as a { lor
port fa concession] that ‘management prerogat
doms |would] De ltelt undisturbed ne grea
[ Te) (WU eher 4()3 i iT OH | 1)) |
; \ 7 } : ; f a/
se 6 na
j ‘ 44 i ; 4 ;
i ' x ; ;
: ’ ;
W hile ' i i . >
: ’ ™ :
.

25

even assuming that objective selection criteria exist or can
reasonably be derived for all job categories, '? employers cannot
be required to replace their subjective selection processes with
those objective criteria; to do so would create the very
bureaucratization and regimentation of the employee selection
process that the key legislators would not accept.

Moreover, given the generally prohibitive cost of converting
subjective selection processes to validated objective ones, the
more likely response of employers would be to superimpose
numerical quotas on their subjective selection processes. This
Court, of course, has held that Title VII pernurs employers to
engage in limited forms of voluntary affirmative action. See
Johnson v. Transp. Agency, supra. But the Court has also tirm-
ly asserted that Section 703(j)’’ was added to Title VII to assure
that the statute would not be interpreted to “require employers
or labor unions to use racial quotas or to grant preferential
trearment to *** avoid being charged with unlawful
discrimination” (Sheet Metal Workers, slip op. 27). The con-
gressional record is replete with comments “that employers
would not be required to institute preferential quotas to avoid
Title VU liability” (Weber, 443 U.S. at 207 n.7 (emphasis in
original)). Thus, a rule of law that would “leavie] * * *
employer|s} [with] little choice * * * but to engage in * * * sub-
jective quota systems] of employment” would be “far from the
intent of Tithe VII" (Albemarle Paper Co., 422 U.S. at 449
(Blackmun, J., concurring in the judgment)).

‘2 Of course, this ts an unrealistic assumption. For many employment dect-
sions, especially those involving professional or managerial positions, a com-
plete and sufficient range of such objective criteria does not exist. See Rogers
\. Int'l Paper Co., $10 F.2d 1340, 1345 (8th Cir.), vacated on other grounds,
423 U.S. 809 (1975); Gortleb v. Tulane Univ. of Louisiana, 809 F.2d 278, 283
& 0.6 (Sth Cir. 1987); Lerner, supra, 1979 Sup. Ct. Rev. at 23.

'* Section 70%j) provides that “[njothing contained in this subchapter shall
be interpreted to require any employer * * * to grant preferential treatment to
any individual or to any group because of the race * * * of such individual or
group on account of an imbalance which may exist with respect to the total
number or percentage of persons of any race * * * employed by any employer
* * * in comparison with the total number or percentage of persons of such
race * * * in any * * * area, or in the available work force in any * * * area”
(42 U.S.C. 2000e-2)))

i) lhe | : scle line tin tmopl ree Selection Procedures

’ : }’ + bale i hal subprective sSetection Processes Niust Hy

27

Guidelines goes on to state, however, that “[t}here are cir-
cumstances in which a user cannot or need not utilize the valida-
tion techniques contemplated by these guidelines,” that such
“circumstances” include the use of “informal or unscored selec-
tion procedure{s},” and that, where such informal or unscored
selection procedures are involved, the user need only “justify
continued use of the procedure[s] in accord with Federal law”
(29 C.F.R. 1607.6B). Unfortunately, the Guidelines do not
clarify how a user “justiffies}] continued use of the procedure(s]
in accord with Federal law.”*’ And to the extent that additional
explanation concerning what the Guidelines require in such
situations has been offered, the signals have been mixed. ’*

2. In the view of the United States and the EEOC, as a
practical matter, an employer “justiffies] continued use of the
procedure in accord with Federal law,” within the meaning of
Section 6B (29 C.F.R. 1607.6B), by showing that the selection
procedure is reasonably related to the requirements of the job or
other business needs and has been applied in a nonpretextual
fashion, as the employer would do in any disparate treatment
case (and as the courts below held that respondent did in this
case). Where an employer chooses to rely on the predictive value
of an objective selection device, it is reasonable to require that
employer to justify its reliance under the disparate impact
theory. But where an employer chooses to use subjective selec-

* Commentators on both sides of the debate have agreed with our
characterization of the Guidelines. See Bartholet, supra, 9S Harv. L. Rev. at
983. OBB 9.141; Larson, § 76.333, at 18-86 to 15-87.

'* When the Guidelines were first promulgated, the pretatory comments
stated that “[a] few practices may be used without validation even uf they have
an adverse impact. See, ¢.¢., McDonnell Douglas ¥. Green, 411 U.S ~%.)
(1973) and section 6B.” 43 Fed. Reg. 38291 9.17 (1978). Six months later, im
response lo a question Concerning how users can “pustity continued use of a
procedure on a basis other than validity,” the agencies said, “The method ot
justification of a procedure by means other than validity ts one to which the
CGundelines are not addressed. See Section 6B.” 44 Fed. Reg. 12002 (1979). The
response added that, “jijn Griges|,| * * * the Supreme Court ind ated that the
burden on the user was a heavy one,” that “the selection procedure could be
used if there was a “business necessity’ for its continued use,” and that “the
Federal agencies will consider evidence that a velection procedure ty Necessary
tor the safe and efficient operation of a Dusimess to pustity commued use of
selection procedure” (bed )

CONCLUSION

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0984%3A09. Public record. Not legal advice.