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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0984%3A13

## Record

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

## Text

Supr 2m Court, U.S,
FiLLED

| ‘

Supreme Court of the United States

COCTORBER TERM. 1987

Hi

>

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

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checks i
(Goldber
assigned

was not

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ne

and two others who rinted

n the basement. 798 F.2d at 808

—s

g, J., dissenting). Watson was

tO WOrKk

visible

in

‘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

of

vice-president for personnel

ner interest in becom)

- Shipp rebuffed Watson with the

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was eventually promote

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scale of twelve categories,°

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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
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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

ry

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)).

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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

7

Title VII imposes the same requirements

regardless of whether an employer has

{)

initially elected to use facially neutra:

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f Title VII liability and
inexcusaDly discriminated
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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
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scree > ti cevices Wik me web CisSsproporcic ace.ly
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exciucec > iorities anc —/ & . sucgiCiacs
“=. | - ~ ~ > ~ + _ . — > ie 7 een) OF on ~ > ~~
enitorcemenct Oo. OU iationai COMMItCMent CC
_ 7 * Giviqcuasa — > — > w~ F as
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. a > ~ - > ~ a a - _ ar -
largely eiiminatec ver JiSsSCcCriminactic l
s
me ~~ me on . hon to - 5 ~ rma ~ + A ~ _ ~
employment ,— and any LOrms L invigcgious
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> 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-, *& .
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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 ©> .
a.
See Criegs v. Duke Power .. & Ss. 624 )
~~
. r ™23 req rement 4 votnara - Raw 1 ", m imum nheign ang weignt rec reme
- . i+ "a , err ne = ne a. . \ we C 4 f
a - =
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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

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the Bank relied on Burt s supervisory

sank anc ne anc rat ; ar potn .acKec
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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

16

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 [
24

— 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 *

A
* 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).

j
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).

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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

O

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
Ne

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.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

m
a
ct

Ae)
past
0)
2)
ct
-
2)
mo
U
fw
(

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
28

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

ot
=

used at the Bank.

!
i
©

!

7

procedures can be as "facially neutral as

objective ones, although because of their
nature it is even more likely that “prior

==
2
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|
J
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fw
Cc?
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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?

J
O
W

e that are highly discretionary.— And

even an apparently "objective" component of a

W)

ubjective process, such as tne experience

>
a

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
r

Oo
,

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

e
-

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-

a

, ; , , ; ; 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-

oo

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0984%3A13. Public record. Not legal advice.