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

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

Supr 2m Court, U.S,

FiLLED

| ‘

Supreme Court of the United States

COCTORBER TERM. 1987

BRIEF OF THE AMERICAN CIVII LIBER-

MlkES UNION, THE NOW LEGAL DEFENSE AND

EDUCATION FUND, THER WOMEN’S LEGAIT

DEFENSE FUND, AMICI] CURIAE, IN SUPPORT Ol

PETITIONER

TABLE OF CONTENTS

TABLE OF AUTHORITIES... .ccccececessessseses ii

INTEREST OF AMICI CURIAE... cee scceeceecceees ]

STATEMENT OF THE CASE... .ccceecceeeecseseveed

SUMMARY OF ARGUMENT... .-ccccecccccceecceeee ld

PENGUIN cece ceeeeceeeeeeecceceesesesesesesh 2

EMECOENSE AGB ec cccccccccccccccecceecceseehé

I. TITLE VII*S DISPARATE IMPACT

ANALYSIS APPLIES TO SUBJECTIVE

CRI TEMA ccccccccescceseeseseesesess 8

A. Subjective Criteria Are The

Kind Of “Built-in Headwinds”

Prohibited by Title VII...... ls

B. Applying Disparate impact

Theory to Subjective

Employment Practices I

Necessary to Achieve T

VIL'S PULPOSES... sees eeeeeee + 28

Se Applying Disparate Impact

Anaiysis to Subjective

Criteria is Not " Burdensome

to to Empl LOVOETS. cece eeeeeecseses 44

II. WATSON ALSO MADE A SUFFICIENT

SHOWING TO PREVAIL UNDER

DISPARATE TREATMENT ANALYSIS...... 55

-ONCLUS errr rrrTrrrie, -TTTTrrrerrrrefsrrieftitt 6

on Ta) -f ° Le tw @ a

Le wy -? ' ™~ Ww) ea ;

r . c> 4 :

rr -e tw

* . : . . Le a . “©, + a tw)

eo ‘ U | aor mi « uw 7 @i « ‘ : ww 6G

™~ =) : - ~w ‘ NN eA i

. aor : 4 he . oO . ’ . qj) » |

' wo * . hal « ~ fe “al « ~ ™N “| @|

wn m~™ -« . . ~ Oo} . . —- ox ees

, ~~ . . +! ™~N i « fa. ™~ o— @ .

al a @ | 4 i « . ‘nay © om

> . Si « t) . el * a @ wid oo -« " ‘

ae . . " ‘ nf ‘ » ‘ 4 ‘ @ in ™N ‘ wh di he

a — hal * ow . Ta) * Ules r4 ' 0; @

eo) 2) . e) * ji -* @; * 5 - mi OI

1" ©) ; : in . a . . : hei ke 7 TT) : 4

b4 | 0) : o1— Ww 4 " | : : . ororm ™~ : Cc ‘ .

m | >. sic u A | 0} D> Male . a

| £2 }aD a 4i * Vi * fa, “fs VJ i@

. : tin Oy! be : 6 | " i « 3i ci Dh : ’

~ >i « a \-4 het « . . Me) * ®@)| Oe @ + . Win

a ei © ci « 7 bei s ls 8] ‘ ‘

“4 » om mi * wits 7 rT)

ta) | {) : (>i hw Ois + q@ hel * Vibe’ i oe ‘ [ 7

= c) | 4 Cis own Wi * Ole . ‘ tibet

m oe co Cie err ‘ ‘ Be,

| ke 4 | yw) al ‘ ~ e—~4 cr) wm sit) :

eal ow 1. 0 ‘ bin “| So WY a, ~~

List Cjisl wif he ie) ’ 4 a oe ‘

3} io «ai w |r rin © A oe

od ‘ = ie > ic> ip : ‘ uf

= : ‘ {) : *ihe = ™m y

@ r* > ~*~ 4 : a

‘iw cho ro YU : " 2 ' 0 ch

wie OW ~~ Cc ow ‘ ‘ ci : rio a wie

oi wir . © c . / 1) qaro w) ir4 ' ' .

“| & be ‘iti. © ) OY EIN -; @ | re

@ | VY . ero = N| cle | col ‘ ' wv iro

| ?) y) ve Loi t sie Mid ba | ‘ik ; y mitw ’

~ r 4 . = . vies @& by IAD oir GiN Ww \ ‘ vr" ‘ ‘ a

= <iD ef |, < |} aie m | mh wo mica oO Ole =

Crawford v. Western Electric Co., Inc.,

745 F.2d 1373 (llth Cir. 1984) ..cceesceees 48

Davis v. Califano, 613 F.2d 957 (D.C.

CAE se APIO pec c es ccesccceceseescecececcecceoce 55

De Medina v. Reinhardt, 686 F.2d 997

(D.C.Cir. L9BZ). cccccccccccscscsscsseseseces 61

Dothard v. Rawlinson, 433 U.S. 321

Coe) FPPPPPPPPrTTrrTrrriiiierire 13, 37, 45

E.E.0.C. v. E.I. du Pont de Nemours & Co.,

445 F. Supp. 223 (D.Del. 1978). eenevees 50

E.E.0.C. v. Federal Reserve Bank, 698

F.2d 633 (4th Cir. 1983), rev'd on other

grounds sub. nom. Cooper v. Federal

Reserve Bank, 467 U.S. 867 (1984).....-+e6-. 30

E.E.0.C. v. Rath Packing, 787 F.2d 318

eo occ ccccccccccccccces 48

Franks v. Bowman Transportation Co.,

424 U.S. 747 (1L97b) cece cece ee enn rneereeeees 63

Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978)... cee eee eeeeceeeces 38, 39

Gilbert v. City of Little Rock, 722

F.2d 1390 (8th Cir. 1983), cert. denied,

GES Bi, SES CASSEdcccccccccceccccccceccces 30

Grant v. Bethlehem Steel Corp., 635 F.2d

1007 (2d Cir. 1980), cert. denied,

452 U.S. 940 (1LOBL) wc eee eee rene reeerevvees 47

Griffin v. Board of Regents, 795 F.2d

1281 (7th Cir. 1986). nce ee eee e cece eevenveees 30

Griffin v. Carlin, 755 F.2d 1516 (1lith

Cir. LIBS). cc cece vee seeseseeseesseseses 29, 43

Griggs v. Duke Power Co., 401 U.S. 424

FOES O66 6666 66060600666 b000 ceeesbesbe passim

Harris V. Ford Motor Co., 651 F.2d 609

nt es Di Nehbseacdeae bee Genebussneetace

Hawkins v. Bounds, 752 F.2d 500 (10th

Dale sh bebe adoneunecbanbeastounenes 29,

Hazelwood School Dist. v. United

States, 433 U.S. 299 (1977)... cccccces S57,

Hopkins v. Price Waterhouse, No. 85-6052

1BeGe CEEe BEGe Go BOs Peccccccccececcccces

Jones v. Lee Way Motor Freight, Inc.,

431 F.2d 245 (10th Cir. 1970), cert.

Semiee, 461 O.8. 986 (IFA de ccccsccccececes

Kaplan v. International Alliance of

Theatrical & Stage Operators, 525 F.2d

SFOS CUE GEEs SOVEPeoceceesececceccecocess

Kilgo ’. Bowman Transportation, 570

FP. Supp. 1509 (N.D. Ga. 1983), aff'd,

Vee Feae GES CARER GPs BW bccccccececesves

King v. Yellow Freight System, Inc.,

SSS Coe SEO COG GEEe BOPEbebececoeccesceoes

Lane v. Wilson, 307 U.S. 268 (1939)........

Lasso v. Woodmen of World Life Insurance

Co., Inc., 741 F.2d 1241 (10th Cir. 1984),

cert. denied, 471 U.S. 1099 (1985).........

Lewis v. Bloomsburg Mills, Inc., 773

ToGe SOS (GEM CEEe APO P ccccccecccecces 30,

McDonnell Douglas Corp. v. Green, 411

Dee COS CEOVSN ec occesseseseeeeesececees 42,

New York City Transit Authority v.

Beazer, 440 U.S. 568 (L979) wc ee eeeenevevees 37

Page v. United States Industries, Inc.,

726 F.2d 1038 (Sth Cir. 1984). cence eeneeees 30

Payne v. Travenol, 673 F.2d 798 (Sth Cir.

19B2) wc cccccccccccccccssececesesessseseceess 61

Phillips v. Martin-Marietta Corp., 400

U.S. 542 (1L9O7L) cc vccnvecvsesesessesssseees 13

Pouncy v. Prudential Insurance Co.

of America, 499 F. Supp. 427 (S.D.Tex.

1980), aff'd, 668 F.2d 795 (Sth Cir.

LO9BZ) oc cccccccccccccccccessesscceseceoes 60, 61

Pouncy v. Prudential Insurance Co.

of America, 668 F.2d 795 (5th Cir.

L9BZ) wc ccccccccsccsesecs WTETTTELILET 30, 41

Regner v. City of Chicago, 789 F.2d

534 (7th Cir. 1986). ceeeeeeees coccceccccocs 30

Rivera v. City of Wichita Falls, 665

F.2d 531 (Sth Cir. LOB2) cece eeeeeeeeeeeces 58

Robbins v. White-Wilson Medical Clinic,

660 F.20 1064 (Sth Cir. 1981), vacated

and remanded on other grounds, 456 U.S.

969 (1982). ccccccccccesecsesesesssssesssees 22

Rossini v. Ogilvy & Mather, Inc., 798

F.2d 590 (2d Cir. 1986) ence ee ee een eeeeeeees 30

Rowe v. Cleveland Pneumatic Co.,

Numerical Control, Inc., 690 F.2d 88

(6th Cir. LOB2) ccc e ee ee ee eeeereneeeeeeeeee 29

Rowe v. General Motors Corp., 457 F.2d

F460 (SCH CLE. LO) ccccccccccccccscccsccces 24

Royal v. Missouri Highway and Trans-

portation Commission, 655 F.2d 159 (8th

Pe | PPrTVryryryyryrrereeseseee eee 24

Segar v. Civiletti, 508 F. Supp. 690

(D.D.C. 1981), modified sub. nom.

Segar v. Smith, 738 F.2d 1249 (D.C. Cir.

1984), cert. denied, 471 U.S. 1115

Pi | PPPS TrTrrrTrTTrrrerry; Trerersrrrrrryr+TTe 22

Segar v. Smith, 738 F.2d 1249 (ND.C.Cir.

1984), cert. denied, 471 U.S. 1115

Bo) PPPS PTT TyTTTTTTTe peeceoooeses 30, 59

Stewart v. General Motors Corp., 542

F.2d 445 (7th Cir. 1976), cert. denied,

G33 Gee DAD (ATT) cccccccccccccccesecceces 24

Sweat v. Miller Brewing Co., 708 F.2d

BSS CSSER CEFe APSSPecccccceccceccccccccess 55

Talley v. United States Postal Service,

720 F.2d 505 (8th Cir. 1983), cert.

Genied, 466 U.S. 952 (1984). .cccccccccccces 30

Teamsters v. United States, 431 U.S.

De BENT 8666065 6b beeeeeasoeeoeeoseooce passim

Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248 (1981).......ee. 56, 62

United States v. Bethlehem Steel Corp.,

446 F.2d 652 (2d Cir. LOT) ccc rcesseceseees 32

United States v. Ironworkers Local 86,

443 F.2q 544 (9th Cir.), cert. denied,

See Bebe BOOS CAPPadecoceceeeeseeeseeececees 57

Vulcan Soc'y of the N.Y. City Fire Dep't

v. Civil Service Comm'n, 490 F.2d 387

SS CEG e THF Tpcccccccccccccceceeeeecccceces 52

Wade v. Mississippi Coop. Ext. Service,

Inc., 528 F.2d 508 (Sth Cir. 1976)...+++6-- 21

(1976) cece eee eevee eeeseeeeeeeeeeeeeeeeees ll

Williams v. Colorado Springs, Colo.

School Dist., 641 F.2d 835 (10th Cir.

L9B1L) cw cccccvcveescccsessesseeeseeseseeeses 21

Wilmore v. City of Wilmington, 699 F.2d

667 (3d Cir. LOBZ) cee eeeeeeeeeeeeesevesees 29

Wilson v. Michigan Bell Telephone Co.,

550 F. Supp. 1296 (E.D. Mich. 1982)....+.+-- 50

Statutes and regulations:

Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000€ et SOG.-+++eees passim

42 U.S.C. § 2O00DEK1lL. ween ee eeeeeeeveeees 33

42 U.S.C. § 2000O-2(a) pc ee eee eeneeeeees 31

29 C.F.R. Pt. L607. cee e ee ee ene n er eeenrecens 35

Section 1607.16Q... cece een ee nneeeecees 36

Miscellaneous:

Baldus & Cole, Statistical Proof of

DISCTiIMiNatiON (1LOBOV). eee eevee eee eeeesesees 9

Bureau of the Census, U.S. Dep't of

Commerce, Statistical Abstract of the

United States (1985). cece eeseeseeseceesees 16

Bureau of Labor Statistics, U.S. Dep‘’t

of Labor, Bull. No. 2168, Women at Work:

A Chartbook (Apr. 1983). neces ceeeeesessceees 17

Bartholet, Application of Title VII to

Jobs in High Places, 95 Harv. L.Rev.

FST [EPSSP cccccccceccecceceeceeseecoccecees 53

118 Cong. Rec. 3802 (1LOT2Z) cn ce eevee nsvcces 35

Heilman & Stopeck, Being Attractive,

Advantage or Disadvantage? Performance-

Based Evaluations and Recommended

Personnel Actions as a Function of

Appearance, Sex, and Job Type, 35

Organizational Behavior and Human

Decision Processes 202 (1985)....cceeeeeeees 27

H.R. Rep. No. 238, 92d Cong., 2d Sess.

2, reprinted in 1972 U.S. Code Cong.

& AGMin. NEWS 2137... cecccccccccccessscsees 32

Kraiger & Ford, A Meta-Analysis of

Ratee Race Effects in Performance

Ratings, 70 J. of Applied Psychology

- Wet. |) PSPPPTTITrrrerereieererreirerrereieiereree 25, 26

Nieva & Gutek, Sex Effects on Evaluation,

5 Academy of Management Review 26/7

CERO Pec cceeee eee eee eeees ' Seeeeeeee 23, 26, 27

Paludi & Strayer, What's in an Author's

Name? Differential Evaluations of

Performance as a Function of Author's

Name, 12 Sex Roles 353 (1985S)... ce eeeeccces 26

Rigler, Title VII and the Applicability

of Disparate Impact Analysis to

Subjective Selection Criteria, 88

W.Va.L.Rev. 25 (1985)... cece e cece eesseccees 41

“Viii-~

Rosen & Jerdee, Effect of Applicant's

Sex and Difficulty of Job on

Evaluations of Candidates for Managerial

Positions, 59 J. of Applied Psychology

SLL CLD TE) ce cccccccececcceseesesessesesesess 27

B. Schlei & P. Grossman, Employment

DiISCrimination Law (1983). cccccscseesscess 59

Schmitt & Lappin, Race and Sex as

Determinants of the Mean and Variance

of Performance Ratings, 65 J. of

Applied Psychology 428 (1980).....seeeeeee 25

S. Rep. No. 415, 92d Cong. ist Sess.

INTEREST OF AMICI CURIAE*

~* > es oe > > ‘_ w+ ~~ - a ~_

its fift

kitchen

checks i

(Goldber

assigned

was not

y member

attendan

rk force: the porter,

_—

and two others who rinted

n the basement. 798 F.2d at 808

—s

g, J., dissenting). Watson was

tO WOrKk

visible

‘or

we Ne

4&4 dacKk room, wnere she

the Bank's customers.

1975, Watson approached Gary Shipp, the

Dank s senior

and info

a teller

rmed him

vice-president for personnel

ner interest in becom)

- Shipp rebuffed Watson with the

r Dlack

witnstan

Las, Wart

“nat tellers

s."

~ r

~ nr

nave to nandle ¢t Mu

was eventually promote

Tn"

> >

ene

rear

sften

Yo nr

- > .

_ wm

~~ «+ 7

: J

‘=|

' - sw

r +

Dp )}ec

_— s

’

a md

- r

‘

2UuUcCisS

> «

f=)

1980

‘

ana

1981 Watson so

four supervisory

qd. The Bank's sel

iring and promot:

biquous because su

s decisions accord

The evidence sho

Supervisec a posi

isions concerning

rior ecisions. a

t o re Pw DY man

> were fareiy reve

Burt , wb made +he

ree r tne four in

stified at triai t

appi ant 's exper

ev i iS sUVeT Vi ry

2] > wit! rhe:

aat_t Fa ; ’

4 ‘ emt Jee va

; Se € 3 1a t re

4 la

ren

¥yisS

tcna

n ma

rdi

2ifth

“eo "

v >

7 es

ot.

r=)

;

*).

P "

——

nat ’

> rrne

. >A

1¢ ‘

scale of twelve categories,°

ormance evaluation

Salary review and

tant

L980,

WwW

te male,

> si

e DpoOoKKeeping a

Many of the aregor

sat ms are Dy their

categ

;

ve ries are,

tness; persona)

attendan

re.at

mnsi

7 } 5)

thstand

LQ)

burtesyv;

ess, e;

Che adiility wi

ns):

g system

ve: -l.

ts 3; 2-3, “does

satisfa

re eer}

wnc

crive

\Coldberg,. J.,

ssecqc ¢

did

Watson

accura

ppearar

Guantity

vere

not

> r

~ &

ese

usec primari

work,

Gdependab:

pressure and

(“ambit

and i2Z

"a es

ist en

‘ ry .

is re

meas

sse

. meet

play

applied

nre

f=)

®o

;

bookkeeping department that Watson lacke

98 F.2G at /93-94 & i

Watson then applied for the posit f

pervisor of motor bank tellers Burt, a

ervisor of all telle selected Pat

ar, a@& white woma ror tne : Aga

at “a assertec ’ 4 5c ‘ ner 7reace

= ¥ = Fr r=) = ee nhac . " rFeawe Jear

experie e tna Watson at the Bank, Dut nac

. ree Jear exoDer - a7 1 . e ys ~

xe wat ne nac De

Px De+rie - The =) . De ’ "sa :

4 4 a « : ac g . e* na ‘ ™ a

i “a4 . _ ; es )

;

. _ +i Wats

e is . -

é é e ie r »

n4acGc WOrakec

‘1 , * ~ -— &

> ”" »

-=- _ ee a

a? - ; 7 eave

— > . rT? ’

- .

;

3) teenace seasona

72 > af = an = -

- ro4 . -, rT e

as > reas : . .

employees,” at Six Flags Over Texas, an

amusement park, id., the Bank relied on this

meager supervisory experience as its reason

for promoting Brown over Watson, id. at

799. The Fifth Circuit noted that Brown's

promotion was also based on Cullar's “high

+++ recommendation, relying on his

performance as a teller and as her

assistant." Id. However, Brown's ratings

were actually comparable to Watson's; Cullar

rated him 80 in January 1980 and 89 in

January 1981; Richard Burt rated Watson 84 in

July 1980, her last written evaluation.

Watson v. Fort Worth Bank & Trust, No. 4-8l-

S81-E, slip. op. at 5 (Nov. 21, 1984)._/

The Bank's subjective policies for

hiring and promotion have significantly

7/ : , :

— Brown did not last long in his new position. In

the September 1981 evaluation Cullar rated Brown's

performace as a motor bank supervisor “fair” and his

potential as “some.” He resigned soon after, on

December 3, 1981. Id.

impacted on black applicants and employees.

Watson showed that a black applicant who

applied for any job with the Bank had one-

fourth the chance of a white applicant to get

the job. 798 F.2d at 808 (Goldberg, J.,

dissenting). Specifically, of 533 white and

144 black applicants during a period of over

four years, 16.7% of the whites and 4.2% of

the blacks received offers of employment.

Id. at 81l. Watson's expert testified that

the disparity was significant at 0.0001; the

probability that the result was due to chance

is one in ten thousand.2 Id. The pattern

repeated itself with regard to applicants fo

teller positions, at the 0.01 significance

level, and for applicants for clerical

positions, at the 0.05 significance

8/ ., .1

— Watson's statistical evidence was so compelling

that discriminatory intent could be inferred under

Title VII disparate treatment analysis. See Point II,

intra.

level .2/ Id.

Watson also demonstrated that black

employees were evaluated more severely than

white employees, were paid less, and were

advanced much more slowly in responsibilities

and promotions. Id. at 808. Black employees

were paid on average approximately $46 4

month less for comparable work. Id. They

advanced at a rate six-tenths of a pay grade

per year less than the equally qualified

white, 20/ Id. A comparison of annual

evaluations over four years showed that

; Significance at the 0.01 and at the 0.05 level

means that there is a one percent and five percent

probability, respectively, that the disparity is due

chance. For large samples such as this, this

ourt's requirement of two or three standard

deviations “is essentially equivalent to a rule

requiring significance at a level in the range below

9.05 or 0.01. Id. at 810 (quoting Baldus & Cole,

Statistical Proof of Discrimination § 9.03, at 297

(1980) (other citations omitted)).

For all these comparisons, Watson's experts

performed multiple regression analyses to control for

factors such as educational level and prior

experience. Id. at 812-13.

blacks rated an average of eleven to fifteen

points lower than their non-black co-workers,

differences that are statistically

Significant. Id. at 812-13. These facts are

not surprising, given that the Bank has never

had a black director or officer, or even a

black supervisor. Id. at 808.

The Bank did not offer any evidence to

explain these disparities. Id. at 810 n.19;

Tr. III307. It also did not present any

evidence as to the business necessity for its

hiring and promotion policies.

SUMMARY OF ARGUMENT

The facts of this case demonstrate how

facially neutral but subjective selection

devices operate precisely like paper and

pencil tests or height requirements, to the

disproportionate disadvantage of women and

minorities, regardless of the intent of the

decision-maker. Because subjective systems

are so susceptible to abuse in operation,

through conscious or unconscious bias, they

should be subject to the “more probing

judicial review of, and less deference to,

the seemingly reasonable acts of

administrators and executives,” Washington v.

Davis, 426 U.S. 229, 247 (1976), that Title

VII requires for objective criteria.

Title VII demands that employers whose

employment practices significantly

disadvantage certain groups of employees, a

showing easily made in this case, examine i

{)

rvy

a systematic and rational way the content

their jobs and the qualifications necessary

Title VII imposes the same requirements

regardless of whether an employer has

{)

initially elected to use facially neutra:

’

‘

0¥)

{)

YW)

’

be anomalous,

devices,

unconscel

OQ.

judicial

wnicnh

—

wnicn are undeniably neutral

ent and

nis case,

~ = .

Of inten

nr ~ res -_~

. ~s F —

Pas

ne approx

i©@ ¥V wa

ation and

rec a new

are so subject

us abuse,

deference

indeed,

vere

tnan

application.

the evidence of

tnat

conscl

dispara

to receive

jecti

race-based

ct?

suffices to justify an

tional discrimination.

f Title VII liability and

inexcusaDly discriminated

ARGUMENT

imately quarter centur

S enacted, employment

Litigation to combat it

era. n 1964, vert

~ oh a -” rn : “~ ror = ’ mts mia = *

ILSCE il a ~~ - ¥ Dractices vere COR’ Ondpliace, =—

4 : .

o : a aor, ~h _ nai rr nal “+ na c+ =~ + — > “

as were cipioma requirements 4a! Stancarcizec

: |

- - ~~ er ~ +. some + a4 — | ~*~ - 7 .

scree > ti cevices Wik me web CisSsproporcic ace.ly

- 7 _ + - = a a ~. inal -_ + 7 > a

exciucec > iorities anc —/ & . sucgiCiacs

“=. | - ~ ~ > ~ + _ . — > ie 7 een) OF on ~ > ~~

enitorcemenct Oo. OU iationai COMMItCMent CC

_ 7 * <s ~ + _ + + 7 ates etae oe i a =

equaiitcy ~ > Giviqcuasa — > — > w~ F as

: . & Z

. a > ~ - > ~ a a - _ ar -

largely eiiminatec ver JiSsSCcCriminactic l

me ~~ me on . hon to - 5 ~ rma ~ + A ~ _ ~

employment ,— and any LOrms L invigcgious

. :

> a + a -~ - 7 - ~~ = ~ +> ~ = — . 7 - 9

esting anc screening praccices ave iikewise

heen ~ =mmocdce * ~ rhec a.” Wowever rae

~~ SULCLeSoai Vs s ¥ a & wo Ne _— iwwovVyou sé # .§ &

coe oa ~ - - _ lata ha > ~ ~~ 4 ~ +>

a evising ew O-re.l.actedc oe ive

BeBe * Ds »- mar n-Marietta rp-, *& .

- = - ’

—

42 971 employer did mot accept apf ations from

Ti r > Cr ’ ne 2 Irenr : - a * r = . 4 _

: - ne a - b A ; ce kh - o ‘s- - -

€ 4 . — »4G 1% wi . >, . ©

; ; : >3 379 .

i¢ ea, 46462 U.s.3S-. 934 i3v/s ack emt yees

sssitiedad as aborers: write emt vees as

4 Wrte ©> .

See Criegs v. Duke Power .. & Ss. 624 )

. r ™23 req rement 4 votnara - Raw 1 "<< nN. Ss 5 +

é4 >, m imum nheign ang weignt rec reme

- . i+ "a , err ne = ne a. . \ we C 4 f

a - =

7 : > > >

Be i 198 alidating unequal bene : .

ne 4 5; wom state re reme polar

selection devices, many employers have

shielded discriminatory decision-making by

adopting subjective, often undefined,

selection processes. These in turn pose new

barriers, barriers that are often

insurmountable unless Title VII's disparate

impact analysis is used to challenge then.

This case exemplifies a widespread

oroblem which severely limits the full

integration into the American workplace of

many employees whom Title VII was expressly

intended to protect. Clara Watson was not

Genied promotions because she lacked

identifiable qualifications, such as a high

school diploma, that she could obtain in

order to qualify. Although her performance

reviews reveal that she was a competent

employee, her efforts to progress were

thwarted four times, on each occasion by

operation of a supervisor's subjective

assessment of “fifty or one hundred” other

;

’

;

the Bank relied on Burt s supervisory

sank anc ne anc rat ; ar potn .acKec

Oe I . | a rr . 7 MAG TDaT a -

~ 3 _” “Ye . 7 re ec :

‘<4. _” = . . ‘. . . ‘ + 7 . ¥ - -- .

ta - Y ‘ + 7 , ¥ . » . +.

a* - 7 . > é . « : -

et < 7 -- - > - .

- ¥ > . . . : - > -- + - Y . Z

Aa’ e Lek sear ' e ‘

. ’ . ._- _ . _ .

A : ‘ ‘

- =

trial, Fort Worth Bank, which employed 79

people, still had no black supervisors.

The barriers faced by Clara Watson and

other employees at the Bank confront many

minority and female employees. Despite

significant advances for these groups, the

large scale effects of discrimination, both

intentional and unintentional, persist. The

median weekly earnings and occupational

choices of minority and female employees iag

far behind those of white males. Median

weexly earnings for full-time employees in

1983 were $397 for white men, $253 for white

women, $299 for black men, $231 for black

women, $274 for Hispanic men and $209 for

Hispanic women.4®’ The Bureau of Labor

Statistics reports that “the very highly paid

professional and managerial occupations are

eee - ——_— ee a

Bureau of the Census, U.S. Dep't of Commerce,

Statistical Abstract of the United States 419 (1985).

till oredominantly male.*- AS f August

98S, 13.5% f white male workers ne.ic

exe itive aGcministrative, ana managerias

bs, in contrast ¢t 6.2% f bDliack maie

~ xers, #F . fF white femaie workers i 51

. rack female worKke!t at tnese ieve

I. TITLE VII'S DISPARATE IMPACT

ANALYSIS APPLIES TO SUBJECTIVE

CRITERIA

As this Court recognized in Griggs v.

Duke Power Co., Title VII prohibits not only

intentional discrimination, but also

“practices that are fair in form, but

discriminatory in operation.” 401 U.S. at

424, 431 (1971). Subjective criteria, like

objective criteria, are “facially neutral”

when applied without discriminatory intent,

but by their nature are even more susceptible

than objective criteria to abuse, in that

they can conceal covert and unconscious bias

and thus have a severely discriminatory

impact.

Subjective selection criteria present an

almost unparalled opportunity for bias. They

conceal the most difficult and evasive form

of discrimination: the hidden, subtle and

A le i ey Se

———

SSidiy sut scious preferences rf the

sion-makers ¢ se.iect thers with tne

ltural experience anc Dackgrounc rhe

-e " jent i fy Tua " ea eaccent " "

: pert rma e . : rhe a a! 2 steac

shiv a ~~ a = yh ma -_

rTi¢ re » . . : es :

: na e ; ’ ase na ; + .

’ o ‘ ‘

. . + : : whe ‘

‘ oe ae _¢ : _

. » . . . _

: 7 a —_. 7

ta 39 4 at @ 364

. . 7 - 7 "a ~ ‘ :

; 4 : -

applicants are seldom trained in job analysis

and can easily substitute untutored bias for

@ rational approach to decision-making. For

example, personnel officers may simply decide

im the abstract that ambition or perseverance

are good qualities in all employees. Worse,

they may consciously or unconsciously prefer

app.iicants who most resemble themselves.

The subjective decision-making process

im this case illustrates the unregulated

discretion that often characterizes such

Systems. This Court's description of the

selection system in Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975), is equally apt

for the process here: “There is no way of

xnowing precisely what criteria of job

performance the supervisors were considering,

whether each of the supervisors was

consicering the same criteria or whether,

angeed, any of the supervisors actually

app.ied a focused and stable body of criteria

of any kind.” Id. at 433. The lack of a

“focused and stable body of criteria” at the

Bank meant that even the same decisionmaker

-- Richard Burt -- used different criteria,

or different weightings of the criteria, at

various times.

Numerous courts have recognized that

subjective decision-making procedures are

inherently subject to bias. 18/ Subjective

assessments often incorporate and perpetuate

the racial and sexual stereotypes forbidden

by Title VII. In one case, "(the

interviewer] had a tendency to equate

pleasant personality characteristics, and

+ bh

particularly an ability to work well wit

18/ See, €-2-+, Coble v. Hot Springs School Dist., 682

F.2d 721, 726 (8th Cir. 1982); Williams v. Colorado

Springs, Colo. School Dist., 641 F.2d 835, 842 (10th

Cir. 1981); Wade v. Mississippi Coop. Ext. Service,

Inc., 528 F.2d 508, 518 (5th Cir. 1976); Barnett v.

W.T. Grant Co., 518 F.2d 543, 550 (4th Cir. 1975).

others, with white people. "19/ In another,

"Black agents who do not conform to the

expectations White agents and especially

their White group Supervisors have about

them, are criticized for being too aggressive

and too abrasive"29/ on supervisory

evaluations for promotions. And in a recent

case from the District of Columbia Circuit,

the court recognized the “unconscious sexual

stereotyping [used] by male evaluators”: "A

number of these complaints about Plaintiff's

lack of ‘interpersonal skills’ were couched

in terms of her sex. One Critic suggested

that Hopkins needed to take a ‘course at

19/ Robbins v. White-Wilson Medical Clinic, 660 F.2d

1064, 1068 (5th Cir. 1981), vacated and remanded on

other grounds, 456 U.S. 969 (1982),

20/ Seger v. Civiletti, 508 F. Supp. 690, 706

(D.D.C.1981), modified on other grounds sub. nom.

Segar v. Smith, 738 F.2d 1249 (D.c. Cir. 1984), cert.

denied, 471 U.S. 1115 (1985),

om ly a a ee |

charm school. '"22/

Many courts have also recognized that

subjective procedures may be discriminatory

even when they are adopted and implemented

without conscious or direct discriminatory

intent.22/ This recognition is confirmed by

psychological studies showing that

unintentional racial and sexual bias affect

evaluations of employees' performance, and

that these effects are exacerbated when a

measurement device is highly subjective. 23/

The Fifth Circuit observed many years ago

that "procedures which depend almost entirely

upon the subjective evaluation and favorable

2i/ Hopkins v. Price Waterhouse, No. 85-6052, slip op.

at 9, 6 (D.C. Cir. Aug. 4, 1987).

22/ E.g-, Atonio v. Wards Cove Packing Co., Inc., 810

F.2d 1477, 1484 (9th Cir. 1987) (en banc).

23/ Evaluations are more likely to show bias when the

evaluation process is ambiguous because there is less

possibility for biased inferences as rating discretion

becomes more circumscribed. Nieva & Gutek, Sex

Effects on Evaluation, 5 Academy of Management Review

267, 270 (1980).

recommendation of the immediate foreman are a

ready mechanism for discrimination against

Blacks ... We and others have expressed a

sxepcticism that Black persons dependent

directly on decisive recommendacions from

Whites can expect non-discriminat JTty

ction.” Rowe v. General Motors Corp., 45

P.20 348, 359 (Sth Cir. 1972).2% Social

A comprehensive 1985 review of 74 labora? ry

anc field experiments conducted between 1966

and 1981 concluded that both Diack and white

raters give higher ratings ¢t persons [

— See also Royal ve. Missouri Highway ar

[ransporta Lon Commission, 655 F.2d 159, 164 (8 f

L981) ("when the evaluators themselves are no! members

of the protected minority ... the decision si 3 De

subject to particularly close scrutiny’); Stewart

veneral Motors Corp., 542 F.2d 445, 450 (7th

L976), cert. denied, 433 U.S. 919 (1977) C"almos "

7 . e *

* the toremen ... are whit ): Barnerrt ra

‘* 518 r.2¢a 543. S50 (orn sae. 1975)

moojective Hiring standards are always suspe

Dpecause r tne r ada Y tor masse 2 racia c as

St ee

Ee A A. ence eminent iy TR eae.

their own race. 22/ Here, Watson was never

rated by anyone of her own race, as Fort

Worth Bank and Trust had no black officers or

supervisors. Studies have also shown that

people rate others’ performance on a task

more accurately, and express more confidence

in the accuracy of their ratings, when rating

someone of their own race.2®/ Given the

historical and continuing prevalence of

whites in supervisory positions, such as at

the Bank, this tendency perpetuates past

discrimination. The effect is magnified

further by the additional finding that black

employees tend to receive more negative

ratings when they constitute only a small

25/ Kraiger & Ford, A Meta-Analysis of Ratee Race

Effects in Performance Ratings, 70 J. of Appiied

Psychology 56 (1985).

26! Schmitt & Lappin, Race and Sex as Determinants of

the Mean and Variance of Performance Ratings, 65 J. of

Applied Psychology 428 (1980).

-25-

percentage of the workforce,2!/ as in this

case.

Similarly, subjective evaluation systems

may easily incorporate and perpetuate

pernicious sex role stereotyping, a problem |

of particular concern to amici herein.

Numerous studies have demonstrated that

stereotypical conceptions have a strong

effect on the evaluations of the work of men

and women, especially when the evaluation

Criteria are ambiguous. 28/ Both men and

women raters show an anti-female bias when

rating women for traditionally “masculine”

2?! Kraiger & Ford, supra note 25, at 61.

28/ E.g., Nieva & Gutek, Supra mote 23. For example,

a recent study replicated and extended a 1968

experiment in which male and female subjects were

randomly assigned to read an essay with the author's

mame indicated as either John T. McKay or Joan T.

McKay. Although the essays were identical, both male

and female readers gave higher ratings to the essay

authored by “John” or "J.T." than that written by

“Joan.” Paludi & Strayer, What's in an Author's

Name’? Differential Evaluations of Performance as a

Function of Author's Name, 12 Sex Roles 353 (1985).

ae)

’

je eter

Artrract

wOMe ! :

liisacva

react

Nis

eraefe

. :

ne i

sadva

Ne mime Tt

Appe irar

—-*

- ~-s

Fs)

es 0

radi

L_e?e

'_~S +

“ ¥

. ’

~o>

> ~

> :

’

;

{)

re)

~ -

issu

eous

La@a

fect

2 Os

" i

274

» | |

The facts of this case illustrate how

subjective criteria, even if adopted and

applied without direct or conscious

discriminatory intent, are even more likely

than objective criteria to discriminate

against the groups Title VII is intended to

protect. Because there were no black

Supervisors at the Bank, Watson was never

evaluated by a person of her race. And the

Bank's discretionary application of its

highly ambiguous subjective criteria always

worked to Watson's disadvantage, to deny her

four opportunities for promotion. As Watson

demonstrated at trial, the Bank's subjective

policies severely impacted on other black

employees as well.

B. Applying Disparate Impact Theory t

Subjective Employment Practices Is

Necessary to Achieve Title VII's”

Purposes

‘an

Title VII's disparate impact analysis

applies to the subtle barriers encompassed in

Subjective screening devices for, as Justice

-2R8-

Frankfurter declared in another context, tne

law "nullifies sophisticated as well as

simple-minded modes of discrimination. "32!

The purpose and language of Title VII, its

legislative history, the guidelines

interpreting it, decisions of this Court, and

the nature of employment decisions all compel

the conclusion that the disparate impact

model is available to challenge subjective

practices in order to “achieve equality of

employment opportunity." Griggs, 401 U.S. at

329

429.<—<

2+’ Lane v. Wilson, 307 U.S. 268, 275 (1939) (striking

, —_ . .

down Oklahoma's restrictive voter~-registration statute

under the fifteenth amendment).

32/ the majority of Courts of Appeals -- the Third,

Sixth, Ninth, Tenth, Eleventh, and District of

Columbia Circuits -- have held that disparate impact

analysis applies to subjective criteria. See, e.g.,

Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.

1983); Rowe v. Cleveland Pneumatic Co., Numerical

Control, Inc., 690 F.2d 88 (6th Cir. 1982); Atonio v.

Wards Cove Packing Co., Inc., 810 F.2d 1477 (9th Cir.

1987) (en banc); Hawkins v. Bounds, 752 F.2d 500 (10th

Cir. 1985); Lasso v. Woodmen of World Life Insurance

Co., Inc., 741 F.2d 1241 (10th Cir. 1984), cert.

denied, 471 U.S. 1099 (1985); Griffin v. Carlin, 755

(footnote cont'd) -

-29-

Title VII unequivocally proscribes all

forms of employment discrimination without

distinguishing between objective or

subjective practices. Under Title VII it is

an unlawful employment practice "to limit

segregate, or classify ... employees or

applicants for employment in any way.... 42

F.2d 1516 (llth Cir. 1985); Segar v. Smith, 738 F.2d

1249 (D.C.Cir. 1984), cert. denied, 471 U.S. 1115

(1985). The Fourth, Fifth, Seventh, and Eighth

Circuits have reached conflicting results. See, e.g.,

Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 569

(4th Cir. 1985) (applying impact analysis); E.E.0.C.

v. Federal Reserve Bank, 698 F.2d 633, 638-39 (4th

Cir. 1983), rev'd on other grounds sub. nom. Cooper v.

Federal Reserve Bank, 467 U.S. 867 (1984) (refusing to

apply impact amalysis); Page v. U.S. Industries, Inc.,

726 F.2d 1038, 1054 (Sth Cir. 1984) (applying impact

analysis); Pouncy v. Prudential Insurance Co. of

America, 668 F.2d 795, 802 (Sth Cir. 1982) (refusing

to apply impact analysis); Griffin v. Board of

Regents, 795 F.2d 1281, 1288-89 and n.14 (7th Cir.

1986) (refusing to apply impact analysis); Regner v.

City of Chicago, 789 F.2d 534, 539 (7th Cir. 1986)

(applying impact analysis); Talley v. United States

Postal Service, 720 F.2d 505 (8th Cir. 1983), cert.

denied, 466 U.S. 952 (1984) (refusing to apply impact

analysis); Gilbert v. City of Little Rock, 722 F.2d

1390 (8th Cir. 1983), cert. denied, 466 U.S. 972

(1984) (applying impact analysis). Only one Circuit,

the Second, has refused to apply disparate impact

analysis to subjective criteria. See, e.g., Rossini

v. Ogilvy & Mather, Inc., 798 F.2d 590, 605 (2d Cir.

1986).

-30-

U.S.C. § 2600e-2(a) (emphasis added). In

1971, this Court construed this statutory

language to prohibit "not only overt

discrimination but also practices that are

fair in form but discriminatory in

operation," Griggs, 401 U.S. at 431. The

disparate impact model developed in Griggs

sought to fulfill Congress' objective of

"“achiev[ing] equality of employment

opportunities" by removing “artificial,

arbitrary, and unnecessary barriers to

employment." Id. at 429, 431.

When it enacted the 1972 amendments to

Title VII, Congress endorsed the disparate

impact model enunciated in Griggs2?’ and

33/ see Connecticut v. Teal, 457 U.S. 440, 447 n.8

(1982) ("The legislative history of the 1972

amendments ... demonstrates that Congress recognized

and endorsed the disparate-impact analysis employed by

the Court in Griggs").

Because the nature of employment discrimination

was not clearly understood when Title VII was enacted

in 1964, at that time Title VII was generally Chougnt

to prohibit only intentional discrimination. A 1972

Congressional report reflected: "In 1964, employment

(footnote cont'd)

recognized that employment discrimination is

a "complex and pervasive phenomenon" that

should be described in terms of “'systems'

and ‘effects' rather than simply intentional

w 34/ At the time of the 1972

wrongs.

amendments, Congress also adopted the

existing decisional law, which included cases

that applied Griggs to invalidate subjective

hiring standards and procedures, such as

United States v. Bethlehem Steel Corp., 446

F.2d 652, 657-59 (2d Cir. 1971).

The 1972 amendments also demonstrate

Congress’ aim to eradicate discrimination in

discrimination tended to be viewed as a series of

isolated and distinguishable events, for the most part

due to ill-will on the part of some identifiable

individual or organization .... Employment

discrimination as viewed today is a far more complex

and pervasive phenomenon. Experts familiar with the

subject now generally describe the problem in terms of

"systems" and “effects” rather than simply intentional

wrongs." S. Rep. No. 415, 92d Cong., lst Sess. 5

34)

See e.g-, H.R. Rep. No. 238, 92d Cong., 2d Sess.

2, reprinted in 1972 U.S. Code Cong. & Admin. News

2137, 2144; S. Rep. No. 415, supra note 33, at 4-5.

-32-

upper level jobs, in which subjective

decision-making processes are more common.

For example, one of the 1972 amendments to

Title VII extended its coverage to academic

institutions, , demonstrating that Congress

intended jobs such as professorships to be

analyzed like other jobs. A Senate Report

fI]n the higher-paying and more

prestigious positions in the

nstitutions of higher learning,

ks constituted only 2.2% of all

tions, most of these being found

in all-black or predominantly black

institutions. Women are similarly

subject to discriminatory

patterns. Not only are tney

generally under-represen ited in

institutions of higher learning, Dut

those few that do obtain positions

e generally paid less and advance

re slowly than their male

nterparts. ... The committee

eves that it is essential that

e employees be given the same

rtunity to redress their

35/ pup. Le. No. 92-261, § 3, 86 Stat. 103, 103-04

(1972) (codified at 42 U.S.C. § 2000e-1) (abo

the exemption for the employment of indi viduals

engaged in educational activities at non-religious

schools)

-33-

grievances as are available to other

employees in the other sectors of

Dusiness.

S. Rep. No. 415, 92d Cong., lst Sess. 12

(1971) (emphasis added). Congress also

considered and rejected a proposal to exempt

nother upper level occupation, physicians

and surgeons. Senator Javits articulated his

Opposition to the proposed exemption:

things that those

discriminated against have resented

the most is that they are relegated

to the position of the sawers of

wood and the drawers of water; that

only the blue collar jobs and

ditchdigging jobs are reserved for

them; and that though they built

America, and certainly helped build

it enormously in the days of its

basic construction, they cannot

ascend the higher rungs in

professional and other life.

Yet, this amendment would go back

beyond decades of struggle and of

injustice, and reinstate the

possibility of discrimination on

grounds of ethnic origin, color,

sex, religion - just confined to

physicians or surgeons, one of the

highest rungs of the ladder that an

member of a minority could attain -

and thus lock in and fortify the

idea that being a doctor or a

urgeon is just too good for members

of a minority, and that they have to

-34-

Se thee

be subject to discrimination in

respect of it, and the Federal law

will not protect them.

118 Cong. Rec. 3802 (1972) (statement of Sen.

Javits). Congress also expanded Title VII in

1972 to include public employment. In all

these instances, Congress extended Title VII

protection with the awareness that the

central obstacle was not overt discrimination

but the covert bias embodied in "systems" and

manifested in "effects. "28!

The Uniform Guidelines on Employee

Selection Procedures, 29 C.F.R. Pt. 1607,

developed by the four federal agencies

charged with enforcing Title VII--the Equal

Employment Opportunity Commission, the Office

of Personnel Management, the Department of

Justice and the Department of Labor--also

interpret Title VIi to require the

application of the disparate impact model to

ess

36/ See footnote 33, supra.

all selection procedures, whether objective

or subjective, by defining the selection

procedures to which disparate impact applies

as follows:

Any measure, combination of

measures, or procedure used as a

basis for any employment decision.

Selection procedures include the

full range of assessment techniques

from traditional paper and pencil

tests, performance tests, training

programs, or probationary periods

and physical, educational, and work

experience requirements through

informal or casual interviews and

unscored application forms.

29 C..F.R. § 1607.16(Q). These guidelines

Support the statutory language and

legislative history and are therefore

“entitled to great deference." Griggs, 401

U.S. at 434.

Although this Court has never explicitly

addressed whether disparate impact analysis

applies to subjective criteria, its decisions

suggest that Title VII's proscription against

practices that have discriminatory effects 1s

available in challenges to subjective as well

-36-

as to objective selection devices. In

Griggs, the seminal disparate impact case,

this Court spoke broadly of "procedures,"

"practices," “fair in form" and “artificial,

arbitrary and unnecessary barriers to

employment,” all terms which encompass

subjective procedures.2/’ And in Teamsters

vy. United States, the Court recognized that

"either theory [disparate impact or disparate

treatment] may, of course, be applied to a

particular sec of facts," 431 U.S. 324, 335

n.15 (1977). In short, the Court's reasoning

in Griggs and its progeny--that disparate

impact analysis may reveal discrimination

deerly ingrained in employment systems that

would otherwise go unrecognized--applies with

37/ 401 U.S. at 429, 431. Not one of this Court's

disparate impact decisions uses the term

"objective." See Griggs, 401 U.S. at 424; Dothard v.

Rawlinson, 433 U.S. 321 (1977); Albemarle Paper Co. v-

Moody, 422 U.S. 4b- (1973); New York City Transi¢

Authority v. Beazer, 440 U.S. 568 (1979); Connec-icut

+. Teal, 457 U.S. 440 (1982).

-3])-

equal if not greater force to subjective

devices which so readily lend themselves to

individual bias.

Some courts and commentators have

erroneously interpreted a footnote in Furnco

Construction Corp. v. Waters, 438 U.S. 567,

575 n.7 (1978), to disapprove the use of

disparate impact analysis for subjective

procedures. In Furnco, the Court noted in

passing that it did not use disparate impact

analysis because "[t]his case did not involve

employment tests...or particularized

requirements such as ... height and eight

specificaticns," id., the usual context in

which disparate impact was ex>nlied. However,

disparate impact analysis was inappropriate

in Furnco because the plaintiffs did not

prove that the practice actually had an

adverse impact on black bricklayers, 438 U.S.

-38-

at 571.28/ Thus, the prima facie case which

would trigger application of the business

necessity defense in dispar.te analysis was

absent in Furnco. In contrast, in this case

the disparate impact of the bank's admittedly

subjective employment system has been

proved: "the numbers ... belie the bank's

claim that it has not discriminated against

the class on the basis of race." 798 F.2d at

808 (Goldberg, J., dissenting).

All the above factors compel the use of

disparate impact analysis for the subjective

employm issue here. In

Ae)

past

(

addition, to draw a bright line between

objective and subjective criteria would

ignore the complexity of employment decisions

and would encourage employers to use

38) Moreover, the policy in Furnco ~~ a reterrals-only

hiring policy which prevented the supervisor from

hiring anyone at the gate -- involved objective

application of a hiring hall system and raised no

juestion of subjective evaluations.

employment practices that are most likely to

have a discriminatory impact.

Objective and subjective requirements

are more properly viewed as “extremes on a

continuum"22/ rather than as the test for

which analytic tool to use. The conclusion

that a practice is not “facially neutral"

because it 1s subjective glosses over the

Significant similarities between objective

and subjective criteri Subjective

39/ Atonio v. Wards Cove Packing Co., Inc., 810 F.2d

1477, 1484 (9th Cir. 1987) (en banc).

40/ Experience requirements are an example of the type

of requirement that can b-: objective or subjective.

For example, in Kilgo v. Bowman Transportation, 570

Supp. 1509 (N.D. Ga. 1983), aff'd, 789 F.2d 859 (llth

Cir. 1986), the employer required one year of over-

the-road commercial tractor-trailer driving which,

like a high school diploma, the applicants either had

or did not have (although the employer sometimes

discriminatorily waived the requirement). That

explicitly defined experience requirement is in stark

contrast to the highly variable experience requirement

used at the Bank.

procedures can be as "facially neutral as

objective ones, although because of their

nature it is even more likely that “prior

a |

Cc?

societal discrimination has been 1

(for perhaps non-discriminatory reasons) into

the decision-making process. "++

example, courts have labelled as subjective

both practices thet have no discretion and

cy?

e that are highly discretionary.— And

even an apparently "objective" component of a

ubjective process, such as tne experience

rief of United States as Amicus Curiae on

Petition for Writ of Certiorari at 13, n.12 ("Brief of

United States"). Illogically, the Solicitor General

suggests that this "prior societal discrimination has

only been incorporated into objective criteria.

-*' For instance, in Pouncy v. Prudential Insurance

o., 668 F.2d 795, 799 (Sth Cir. 1982), the company

id mot post any vacancies, a practice which

ncompassed no discretion. In Harris v. Ford Motor

o., 651 F.2d 609 (8th Cir. 1981), the practice at

. 7?

sue was discharges based om poor workmansnip, 4

eriterion which can either be discretionary or based

yn objective factors. See generally Rigler, Title VI!

and the Applicability of Disparate lI

Ww)

rT r | ‘< r .

mpact Analysis CO

ive Selection Criteria, 88 W.Va.L.Rev. 25. 33°

requirement at Fort Worth Bank, can be

applied in a discretionary fashion, so that

experience at an amusement park is given more

weight than experience at the Bank itself.

Not one of the courts that have held

that subjective criteria may not be analyzed

under disparate impact has delineated how it

determined that a particular test was

subjective rather than objective. Because

that preliminary decision will be often be

43/

dispositive,-—’ an important practical reason

for concluding that subjective criteria are

43) The employer's burden under the disparate

treatment model is significantly less than under

disparate impact analysis. Under the disparate

treatment model, the employer need only explain the

differential treatment, and the plaintiff must prove

that the explanation is a pretext. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802, 804 (1973). In

contrast, under the disparate impact theory the

employer must demonstrate the business necessity of

the discriminatory selection device. Griggs, 401 U.S.

at 431. In this case, although the Bank artic: | ited

“somewhat inconsistent," 798 F.2d at 799, reasons for

rejecting Watson, it did not offer any evidence as to

the business necessity of its procedure nor could it

have, as the criteria had not been subject to even

minimal validation.

subject to impact analysis 1s that courts

will avoid the enormous and difficult task o

deciding whether a procedure should be

labelled objective or subjective.

Excluding subjective practices from the

reach of disparate impact analysis serves no

legitimate purpose and would encourage

employers to abandon validated objective

riteria in favor of discretionary hiring

methods. If subjective practices are

exempted from the same stringent analysis

accorded objective devices with

discriminatory effects, “[rjather than

validate education and other objective

criteria, employers could simply take sucn

criteria into account in subjective

interviews or review panel decisions. "—

would be ironic indeed if patently neutral

but objective devices received less judicial

jeference than inherently suspect subjective

nes. For, “(iJf, in fact, the subjective

practices are a ‘covert means' to

discriminate intentionally, by definition

intent will be difficult to prove, "42

Encouraging employers to insulate their

discriminatory employment decisions from

review cannot be reconciled with Congress'

determination to "achieve equality of

employment opportunity.” Griggs, 401 U.S. at

429.

Cc. Applying Disparate Impact Analysis

to Subjective Criteria is Not

Burdensome to Employers

Employers who seek to use subjective

Criteria that discriminate have to make the

same showing as employers who use objective

Criteria that discriminate--to demonstrate

“business necessity" by showing that the

discriminatory practice has "a manifest

45; ; 7"

45 Atonio v. Wards Cove Packing Co., Inc., supra, 810

F.2d at 1484.

-~44-

relationship to the employment in

question." Griggs, 401 U.S. at 431, 432.

Business necessity is traditionally proved by

showing that “a discriminatory employment

practice [is] necessary to safe and efficient

job performance." Dothard v. Rawlinson, 433

U.S. 321, 332 n.14 (1977). As the amicus

brief filed in support of petitioner by the

American Psychological Association ("APA")

demonstrates, subjective criteria can be

professionally validated in accord with

Griggs business necessity requirements with

the same ease as objective devices. Amici

herein rely on the APA's exposition of how

subjective criteria, including the criteria

used in this case, can and should be

scientifically validated.

The ease with which validation

requirements may be applied to subjective

criteria dispels the premise behind the

Solicitor General's4® Opposition to

disparate impact analysis for subjective

Criteria: that employers will be forced to

the choice of replacing subjective criteria

with objective tests or of instituting

quotas. The facts in this case and other

cases where subjective criteria have been

challenged also contradict the Solicitor

General's position; far from being unduly

burdened with demonstrating the validity of

Subjective testing, employers whose

subjective employment practices have been

found to discriminate have not made even

Minimal attempts to demonstrate business

necessity.

Most often, subjective criteria have

failed the business necessity test because,

like here, the employer has not offered any

6 - , 5

= Brief of United States at 15.

-46-

, ; , , ; ; j

justification for the subjective device.*!

For example, in Hawkins v. Bounds, 752 F.2d

500 (lOth Cir. 1985), the court invalidated

the Post Office's practice of promotions

based on “detailing,” i.e., promoting those

employees who had been temporarily appointed

to higher level positions. Black employees

had never been “detailed” and the Post Office

had no guidelines for making “he temporary

appointments. The court found that "(tJjhe

record in this case contains no evidence

tending to show that the practice of totally

47/ , ;

—-’ In other cases the employer offered only a

patently flimsy business justification for its

discriminatory subjective criteria. For example, in

Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1011

(2d Cir. 1980), cert. denied, 452 U.S. 940 (1981), the

employer defended its practice of selecting foremen

through “word-of-mouth on the basis of wholly

subjective criteria” only by citing the dangerousness

of ironwork and opining that no other method of

selection would work. The court found that these

reasons did mot constitute business necessity bdDecause

the plaintiffs showed that the superintendents

selected those who were their friends, that many of

those so selected had bad safety records and had less

experience as ironworkers than the black plaintiffs.

Id. at LOLO.

discretionary detailing or its use in the

promotion procedure were required by business

necessity." Id. at 504 (emphasis added).

Similarly, in Crawford v. Western Electric

Co., Inc., the employer did not “present ...

a _ scintilla of evidence to demonstrate a

Dusiness necessity for the mechanics of an

Index Review System which allows supervisors

to make wholly subjective evaluations of

employees, without simultaneously making

written records of their reasons," 745 F.2d

1373, 1386 (llth Cir. 1984) (emphasis

“8 See also, e.g., E.E.0.C. v. Rath Packing, 787 F.2d

318, 328 (8th Cir. 1986) (the employer "was unable to

identify the criteria and qualifications which were

considered in the hiring decisions"); Lewis v.

Bloomsburg Mills, Inc., 773 F.2d 561, 570 (4th Cir.

1985) (testimony offered to prove business necessity

“of vaguest sort, consisting essentially of general

assertions’); Brito v. Zia Co., 478 F.2d 1200, 1205

(lOth Cir. 1973) ("[t]he Zia Company ... failed to

introduce evidence of the validity of its employee

performance evaluation test consisting of empirical

data demonstrating that the test was significantly

correlated with significant elements of work

behavior”).

-48-

In some cases tie employers' staritards

have been so vague or nonexistent .Aat it was

impossible for the court to begin even a

rudimentary inquiry into business

necessity. For example, this Court observed

in Albemarle Paper Co. v. Moody, 422 U.S.

405, 433 (1975), that a validation test where

supervisors were asked to rank groups of

employees as to who “did a better job" was

“extremely vague and fatally open to

divergent interpretations”:

There is no way of knowing precisely

what criteria of job performance the

supervisors were considering....

There is, in short, simply no way to

determine whether the criteria

actually considered were

sufficiently related to the

Company's legitimate interest in

job-specific ability to justify a

testing system with a racially

discriminatory impact.

Id. at 433 (emphasis in original) (footnote

omitted).

Courts have upheld subjective criteria

when they have found that the employer

-49-

49/ For

demonstrates business necessity.

example, in Wilson v. Michigan Bell Telephone

Co., 550 F.Supp. 1296 (E.D.Mich. 1982), the

court found22/ that an “assessment center"

process for potential salesmen was justified

by business necessity. In so holding, it

relied on an article in the Journal of

Applied Psych~logy finding that ratings Beil

System assessment centers bore a strong

relationship to subsequent job performance,

and on testimony of a black female member of

the assessment staff who had participated in

49/ Although the business necessity test should be

applied to require both an analysis of the

requirements of the job and whether the subjective

criteria measure those requirements, in fact courts

have sometimes upheld the use of subjective criteria

so long as discretion is circumscribed and there are

procedural safeguards. See e.g., E.E.0.C. v. E.I. du

Pont de Nemours & Co., 445 F.Supp. 223 (D.Del. 1978)

(upholding a subjective supervisor system because of

precedural safeguards). Amici submit that such

safeguards, while important, are not a substitute for

validation.

20/ this was an alternative holding. The court also

held that disparate impact had not been proved. 550

F. Supp. at 1300.

the assessment of plaintiff. Id. at 1300-01.

Far from burdening employers, subjecting

discriminatory subjective criteria to

validation will promote Title VII's goals and

lead to better merit selection for all

employees. 2!/ If employers know that their

discriminatory subjective practices can be

challenged under disparate impact analysis,

they will be motivated to adopt criteria that

are tailored to job requirements instead of

variable and ambiguous policies like those

used at the Bank. "(A] primary objective of

Title VII is prophylactic: to achieve equal

employment opportunities and to remove

barriers that have operated to favor white

males over other employees." Teamsters v.

United States, supra, 431 U.S. at 364. Many

51/

2*' It should be noted in this context that Kevin

Brown, the employee selected over Watson for the

fourth promotion, subsequently received poor

performance ratings and soon resigned from the Bank.

See footnote 7, supra.

of the objective tests struck down under

Title VII had little relevance to the

qualities demanded by the job and have been

replaced by criteria that more accurately

measure job requirements. For example, New

York City firefighters were once selected

based on their knowledge of such words as

“attest”, "luminous," and "irate." Vulcan

soc'y of the N.Y. City Fire Dep't v. Civil

Service Comm'n, 490 F.2d 387, 397 n.12 (2d

Cir. 1973). As a result of suits brought by

both minority group members and women, New

York City firefighters are now selected from

tests that more closely (but not perfectly,

in the view of the amici) measure fire-

fighting abilties, such as a simulation of

engine company and ladder company tasks. See

Berkman v. City of New York, 812 F.2d 52, 54-

95 (2d Cir. 1987), petition for cert. filed,

56 U.S.L.W. 3017 (July 13, 1987).

The Solicitor General's argument that

subjective practices should be shielded from

disparate impact scrutiny in order to protect

traditional “management prerogatives" and

“union freedoms," Brief of U.S. at 15, would

effectively immunize subjective practices

from Title VII review. Although Title VII

leaves considerable discretion to

employers,2*/ it does not insulate any

particular subset of discriminatory job

decisions from review. The employer in

Griggs exercised its "management prerogative”

by requiring a high school diploma and

intellegence tests--"the Company ... judg[ed]

that they generally would improve the overall

22/ as Professor Bartholet points out, "[o]ne of the

great advantages of the Griggs approach is that, by

focusing on results and proof of job-relatedness, it

gives the employer maximum freedom to design

employment systems; the sole constraint is that the

systems must not [discriminate] unless there is a

powerful justification for their doing so."

Bartholet, Application of Title VII to Jobs in High

Places, 95 Harv. L.Rev. 947, 1008 (1982).

-53-

quality of the workforce," 401 U.S. at 43l--

but the discriminatory employer policies in

Griggs, like those at issue here, had to be

justified by business necessity. Here, Clara

Watson prevails under a disparate impact

analysis, because the Bank did not offer any

evidence to establish the business necessity

of its discriminatory subjective policies.

II. WATSON ALSO MADE A SUFFICIENT

SHOWING TO PREVAIL UNDER DISPARATE

TREATMENT ANALYSIS

As noted above, this Court held ia

Teamsters v. United States, that either

theory of Title VII liability, i.e. disparate

impact or disparate treatment, may be applied

to a particular set of facts. 431 U.S. at

335 n.15. In addition to proving her case

under the disparate impact theory, Watson

also adduced sufficient facts to prevail

under the classwide2?/ disparate treatment

23) The class here was ultimately de-certified and the

class action question is not before this Court.

However, lower courts which have addressed the use o

classwide statistics in individual cases have held

that classwide statistical evidence alone may

establish a prima facie case of employment

discrimination in an individual as well as class

action case, e.g., Davis v. Califano, 613 F.2d 95/7,

962 (D.C. Cir. 1979), or that classwide statistical

evidence is relevant and probative in individua!

cases, e.g., Sweat v. Miller Brewing Co., 708 F.2d

655, 658 (llth Cir. 1983) (statistics relevant to

showing pretext); Anderson v. City of Albuquerque, 690

F.2d 796, 802 (10th Cir. 1982) (de-certified class);

Kaplan v. International Alliance of Theatrical and

Stage Operators, 525 F.2d 1354, 1358 (9th Cir. 1975);

King v. Yellow Freight System, Inc., 523 F.2d 879, 882

(8th Cir. 1975) (statistics relevant to motive and

(footnote cont'd)

approach outlined in Teamsters. In fact, it

was for this very reason that Judge Goldberg,

in his dissent below, found it unnecessary

even to reach the question of whether

disparate impact theory applied to these

facts. 798 F.2d at 808 & n.17. As required

under Teamsters, Watson demonstrated through

her statistical studies a “pattern or

practice of resistance to the full enjoyment

of Title VII rights.” 431 U.S. at 336. Her

unrebutted statistical evidence proved more

than "the mere occurrence of isolated or

‘accidental’ and or sporadic discriminatory

acts.” Id.

Statistics showing racial or

ethnic imbalance are probative in a

case such as this one only because

such imbalance is often a telltale

Sign of purposeful discrimination...

“In many cases the only available

avenue of proof is the use of racial

intent); Jones v. Lee Way Motor Freight, Inc., 431

F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S.

954 (1971). Indeed Watson could also prevail under

the individual disparate treatment approach of

McDonnell Douglas and Burdine, see infra.

-56-

statistics to uncover clandestine

and covert discrimination ...”

Id. at 339 n.20 (quoting United States v.

Ironworkers Local 86, 443 F.2d 544, 551 (9th

Cir.), cert. denied, 404 U.S. 984 (1971)).

Under the disparate treatment approacn a

plaintiff must prove intent to discrim-

inate. This Court, however, has made it

clear that a statistical showing alone, if

sufficiently strong, will establish the

24/ AT

requisite intent

may establish a prima facie case of disparate

treatment using statistics alone if the

Statistics show a “gross disparity” in

treatment of workers based upon a prohibited

factor such as race. E.g. Hazelwood School

District v. United States, 433 U.S. 299, 30/-

S4/ « :

— Watson also introduced direct evidence of intent

to discriminate, e.g., the comments of Gary Shipp to

the effect that blacks could not handle large sums of

money, Tr. 118-19, amd the fact that as of 1973 no

blacks were placed in positions of visibility to the

Bank's customers. 798 F.2d at 808 (Goldberg, J.,

dissenting).

08 (1977). This Court has also held that a

Statistical showing of disparate treatment

reaches this required level of "gross

disparity" when the difference between the

expected treatment and the actual treatment

of a protected class is greater than two or

three standard deviations. Castaneda v.

Partida, 430 U.S. 482, 496-97 n.17 (1977);

Hazelwood, 433 U.S. at 31l1l n.1?7. In

contrast, a “marked disproportion" has been

deemed sufficient to prove disparate impact,

Since intent is irrelevant. Rivera v. City

of Wichita Falls, 665 F.2d 531, 535 n.5 (Sth

Cir. 1982). Watson's statistical evidence

clearly met the prerequisite for a disparate

treatment showing. The gross statistical

disparities shown here, coupled with a

subjective system which is inherently

Suspect, is more than sufficient to make such

a case.

Here both anecdotal evidence and gross

racial disparities resulting from the use of

subjective devices have been shown. However,

when as in the instant case *he statistical

evidence is also finely tuned to the relevant

labor pool, as opposed to the general

population or workforce as relied upon in

Teamsters itself, a lesser showing than that

made here would permit an inference of

intentional discrimination, see Segar v.

Smith, 738 F.2d 1249, 1278 (D.C.Cir. 1984),

cert. denied, 471 U.S. 1115 (1985) (citing B.

Schlei & P. Grossman, Employment Discrimina-

tion Law 1371 (1983)). "“({W)hen a plaintiff's

statistical methodology focuses on the

appropriate labor pool and generates evidence

of discrimination at a statistically

significant level, no sound policy reason

exists for subjecting the plaintiff to the

additional requirement of either providing

anecdotal evidence or showing gross

disparities." Id.

In order to dispel the inference of

Classwide disparate treatment which must be

drawn in a case such as the instant one, an

employer is required to show that the

plaintiff's proof is “either inaccurate or

insignificant." Teamsters, 431 U.S. at 360,

or to provide a “nondiscriminatory explana-

tion for the apparently discriminatory

result". Id. at n.46. The employer's

defense must be designed to meet the prima

facie case presented by the plaintiff. Id.

Here, the bank made almost no effort

whatever to rebut Watson's overwhelming

Statistical showing, 798 F.2d at 812 n.24,

and indeed could not have, considering the

overwhelming nature of Watson's statistical

evidence. This is not a case where a

plaintiff relied upon “naked comparison([s]”"

without regard to factors other than race

which might have explained the disparate

resuits. Pouncy v. Prudential Insurance

America, 499 F. Supp 427, 449

(S.D.Tex. 1980), aff'd, 668 F.2d 795, 802

(Sth Cir. 1982). Watson presented

sophisticated regression analyses which

controlled for such factors. In any event,

as Judge Goldberg noted, “[a]bsent proof to

the contrary courts should decline to assume

that blacks and whites do not possess tne

relevant qualifications in equal

proportions.” 798 F.2d at 812 (citing Payne

tte

Vv. Travenol, 673 F.2d 798, 822 (5th Cir.

1982); De Medina v. Reinhardt, 686 F.2d 997,

1008 (D.C. Cir. 1982)).22

The Bank did, of course, articulate

55 ,

e See also Teamsters, 431 at 339 n.20 ("absent

explanation, it is ordinarily to be expected that non-

discrimination will in time result in a workforce more

»r less representative of the racial and ethnic

composition of the population in the community (trom

which the employees are hired ...').

inconsistencies these excuses might have

sufficed in an ordinary individual disparate

treatment case under McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), and Texas

Dep't of Community Affairs v. Burdine, 450

U.S. 248 (1981).2%/ However. the

S ;

26 This case, of course, was not a classic McDonnell

Douglas/Burdine individual disparate treatment case

even though it might, in other circumstances, have

been presented in that model. McDonnell Douglas is

not “the only means of establishing a prima facie case

of individual discrimination. [This Court's] decision

in that case ... did not purport to create an

inflexible formulation.” Teamsters, 431 U.S. at 358

(emphasis in original.) Even under the McDonnell

Douglas/Burdine model it is clear that the requirement

of articulating a reason which is both “legitimate”

and “non-discriminatory” has substantive

connotations. The “legitimacy” of the conduct is to

be judged to the extent by which it has “a rational

and neutral business justification,” McDonnell

Douglas, 411 U.S. at 806 n.20. The bank did not

cGemonstrate any business justifications for its

subjective decisions (see supra). Second, the reason

must be “applied alike to members of both races.” Id.

at 804. If the “assigned reason was ...

discriminatory in its application,” the defense

tails. Id. at 807. Moreover, the non-discriminatory

justification (subjective criteria here) cannot be

said to be “non-discriminatory” if it operates

disproportionately to burden blacks.

If mothing else, Watson's statistical evidence

demonstrates that the Bank's proffered excuses for

denying her promotions were pretextual.

classwide statistical showing made here was

never adequately explained. In cases where a

prima facie showing of classwide

discrimination has been made, such unrebutted

classwide statistical proof creates an

inference of discrimination against

individual class members, thus shifting the

burden to the employer to show that

individual class members were not victims of

the proven pattern and practice of racial

discrimination, Franks v. Bowman

Transportation Co., 424 U.S. 747, 772

(1976). As this Court stated in Teamsters:

Although the prima facie case

[does] not conclusively demonstrate

that all of the employer's decisions

were part of the proved

discriminatory pattern and prectice,

it [does] create a greater

likelihood that a single decision

was a component of the overall

pattern. Moreover, the finding of a

pattern or practice chang([es] the

position of the employer to that of

a proven wrongdoer.

431 U.S. at 359 n.45.

-§3-

In sum, even without reliance upon the

disparate impact model, Watson and other

minorities and women who are subjected to

highly subjective employment selection

criteria and who demonstrate through the use

of statistics that these devices have in fact

resulted in a gross disparity in their

representation in the particular workforce

generally, or in a particular salary or

promotional level, may prevail under a

disparate treatment model because

discriminatory intent "can in some instances

be inferred from the mere fact of difference

in treatment," Teamsters, 431 U.S. at 335

n.15. This is such a case. If this "most

obvious evil," id., is ever to be rooted out

of our system, Title VII plaintiffs must not

be deprived of the statistical tools to

demonstrate the reality of the bias inherent

in subjective selection devices.

-§4-

CONCLUSION

For the foregoing reasons, amici

respectfully submit that the judgment of the

Court of Appeals below should be reversed.

Respectfully submitted,

Deborah A. Ellis

Counsel of Record

Isabelle Katz Pinzler

Joan E. Bertin

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

Attorneys2_/ for Amici

Curiae

Dated:

New York, New York

September 14, 1987

27/ thanks are extended to Leticia Allen of Columbia

University School of Law, Noemi Bonilla of Hofstra

University School of Law and Laura Levine of Harvard

Law School for their assistance on this brief.

-65-

APPENDIX

Statements of Interest of Amici Curiae

The American Civil Liberties Union

("ACLU") is a nationwide, non-partisan

Organization of over 250,000 members

dedicated to protecting fundamental rights,

including the right to equal treatment under

the law. The ACLU has established the

Women's Rights Project to work towards the

elimination of the pervasive problem of

gender-based discrimination. It has

participated, both directly and as amicus

curiae, in the litigation of many cases

before the Supreme Court and other courts

challenging sex discriminatory practices.

The Texas Civil Liberties Union Foundation,

the Texas affiliate of the ACLU, joins in

this brief.

The NOW Legal Defense and Education Fund

("NOW LDEF") was founded in 1970 by leaders

of the National Organization for Women as a

non-profit civil rights organization to

perform a broad range of legal and’

educational services nationally in support of

women's efforts to eliminate sex-based

discrimination and secure equal rights. A

major goal of the NOW LDEF is the elimination

£ barriers that deny women economic

opportunities. In furtherance of that goal,

NOW LDEF has participated in numerous cases

to secure full enforcement of laws

prohibiting employment discrimination.

The Women's Legal Defense Fund is a non-

profit membership organization founded in

1971 to provide pro bono legal assistance to

women who have been the victims of

discrimination based on sex. The Fund

devotes a major portion of its resources to

combating sex discrimination in employment

through litigation of significant employment

discrimination cases, operation of an

employment discrimination counseling program,

and advocacy before the Equal Employment

Opportunity Commission and other federal

agencies charged with enforcement of the

equal opportunity laws.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.