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

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NO. 86-6139

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IN THE

SUPREME COURT OF THE UNITED STATES

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CLARA WATSON,

Petitioner,

Vv.

FORT WORTH BANK AND TRUST,

Respondents.

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ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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BRIEF OF AMICI CURIAE

STATE OF TEXAS AND TEXAS COMMISSION ON HUMAN

RIGHTS; THE STATE OF ALABAMA; THE STATE OF

HAWAII; THE COMMONWEALTH OF MASSACHUSETTS AND

MASSACHUSETTS COMMISSION AGAINST DISCRIMINA

TION; THE STATE OF NEW JERSEY; THE STATE OF

OHIO AND OHIO CIVIL RIGHTS COMMISSION; THE

STATE OF RHODE ISLAND AND PROVIDENCE PLANTA

TIONS; THE STATE OF VERMONT; THE STATE OF

WYOMING AND WYOMING DEPARTMENT OF LABOR, FAIR

EMPLOYMENT DIVISION: IN SUPPORT OF PETITIONERS.

BREA Rex ge

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

Exec. Asst. Attorney

General for Litigation

ON THE BRIEF: JAMES C. TODD

ELAINE ROMBERG Chief, General Litigation

Legal Intern Division

ATTORNEYS FOR AMICI

CURIAE

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

1. INTRODUCTION

Il. THE PURPOSE OF TITLE VII

SUPPORTS THE APPLICATION

OF DISPARATE IMPACT

ANALYSIS TO SUBJECTIVE

EMPLOYMENT CRITERIA .....

A. The statutory language of Title

VII supports the application of

disparate impact analysis to

subjective employment

criteria

B The purpose of Title VII as

interpreted by this Court

supports the application of

disparate impact analysis to

subjective employment

criteria

Cc The Congressional intent

behind Title VII supports

the application of disparate

impact analysis to subjective

employment criteria

6

6

PAGE

D. The Agencies charged with

enforcement of Title VII

apply disparate impact

analysis to subjective

employment criteria ....... 16

E. To hold that disparate

impact analysis is not

applicable to subjective

employment criteria would

frustrate the purpose of

Dee Gas cccocecocsoceceoss 18

lil. THE MAJORITY OF CIRCUIT COURTS

APPLY DISPARATE IMPACT ANALYSIS

TO SUBJECTIVE EMPLOYMENT

CHEE EEEEED 4 cocccoceceseoosooccooes 21

A. The use of subjective

employment criteria is

viewed suspiciously by

courts as a convenient

pretext for discrimina-

tion, and thus warrants

the application of dis-

parate impact analysis pes 22

IV. BUSINESS NECESSITY IS NOT AN

ONEROUS BURDEN FOR EMPLOYERS .. 24

PES §4«coocccooocooseose TTTTTTTT 28

CERTIFICATE OF SERVICE : 30

iii

TABLE OF AUTHORITIES

CASES PAGE

Abrams v. Johnson, 534 F.2d 1226

i ee <seneseecesecececec 23

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

DE eeueecececeeuseeeccocces 7, passim

Atonio v. Wards Cove Packing Co., Inc.,

810 F.2d 1477 (9th Cir. 1987) (en

Dt See SebSeeeceeoecocoscececces 17, passim

Barnett v. W.T. Grant Co., 518 F.2d

an [. ED coccecececceces 23

Clark v. Chrysler Corp., 673 F.2d 921

(7th Cir.) cert. denied, 459 U.S.

DPE <66e6ceeeeeesecececcccces 21, 22

Coe v. Yellow Freight Systems, Inc.,

646 F.2d 444 (10th Cir. 1981) ..... 21

Connecticut v. Teal, 457 U.S. 440

i ieee ten ekeeseeeeoneeese cc 11

Crawford v. Western Elec. Co., 614

F.2d 1300 (5th Cir. 1980) ......... 23

Davis v. Califano, 613 F.2d 957

De vceceogecceecececs 23

Dothard v. Rawlinson, 433 U.S. 321

Di) DEEP eReeeeeeewececoeoeceees ss

Le)

qv

Furnco Construction Corp. v. Waters,

ts ee Ce acocceseccececs 11

iv

PAGE

Gilbert v. Little Rock, 722 F.2d 1390

(8th Cir. 1983), cert. denied, 466

FS F) aPPerrrrrrrrrr tre 22

EEOC 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) ... 21

Grant v. Bethlehem Steel Corp., 635

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

denied, 452 U.S. 940 (1981) ....... 21, 23, 27

Griffin v. Board of Regents, 795

F.2d 1281 (7th Cir. 1986) ......... 21

Griffin v. Carlin, 755 F.2d 1516 17, 18

Pee Gas TP 3 wecececcesesececes 21, 23

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

Ge ECHOTED ceccecccecoccoceceoesecs 3, passim

Hawkins v. Bounds, 752 F.2d 500

See Gals ED sececesecssoossecs 21

Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 257

PPT TTTT TTT TT TTT TTT Te 15

International Board of Teamsters

v. United States, 431 U.S. 324

SE 6666669000005066066600666006% 6, 7

Local 9°, International Assoc.

of Firefighters v. City of

Cleveland, U.S. __,

106 S.Ct. 3063, 3075 (1986) ....... 14

Vv

McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) ........ >, 6, 15

Muller v. U.S. Steel Corp.,

509 F.2d 923 (10th Cir.),

cert. denied, 423 U.S. 825

TTC TT TT TT TTC CTT TT TTTe 23

Page v. U.S. Industries, Inc.,

726 F.2d 1038 (5th Cir. 1984) ..... 22

Parker v. Baltimore & Ohio

R.R. Co., 652 F.2d 1012 (D.C.

a 20

Pouncy v. Prudential Insurance

Company of America, 668 F.2d

Se rs TE «psnnbecceceeces 22, 28

Robinson v. Lorillard Corp.,

444 F.2d 791 (4th Cir.), cert.

dismissed pursuant to Sup.Ct.R.

60, 404 U.S. 1006 (1971) .......... 21, 26

Rogers v. International Paper Co.,

510 F.2d 1340 (8th Cir.) vacated,

423 U.S. 809 (1975) ........... -? 23

Rowe v. Cleveland Pneumatic Co.,

Numerical Control, Inc., 690

P.2G GS (6th Cir. 19GB) .nccccccccse 21

Rowe v. General Motors Corp.,

457 F.2d 348 (Sth Cir. 1972) ...... 22, 23

Segar v. Smith, 738 F.2d 1249

(D.C. Cir. 1984), cert. denied, 20, 21

See Delle GE GED “ccoececcceccess 27,

i)

io @)

vi

Talley v. United States Postal

Service, 720 F.2d 505 (8th

Cir. 1983), cert. denied,

466 U.S. 952 (1984) ........

Texas Dept. of Community

Affairs v. Burdine, 450 U.S.

De GD §=ecéeeeosseoccecees

Williams v. Colorado Springs,

Colo. Sch. Dist., 641 F.2d

835 (10th Cir. 1981) ........

Wilmore v. City of Wilmington,

699 F.2d 667 (3d Cir. 1983)

Zahorik v. Cornell University,

729 F.2d 85 (2d Cir. 1984) .

STATUTES AND GUIDELINES

Texas Commission on Human

Rights Act, Vernon's Ann.

Civ. Stat. Art. 5221k (1987)

Title II of the Civil Rights

Act of 1964, 42 U.S.C. §2000a

Ce eeecedéedsoessocesoeses

Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §2000e

et seq. (1982)

Uniform Guidelines on Employee

Selection Procedures, 29 C.F.R.

§1607.1.A et seq. (1985)

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PAGE

22

23, 25

21

21, 26

15

1, passim

16, 17

vii

PAGE

LEGISLATIVE HISTORY

H.R. Rep. No. 914, 88th Cong.,

2d Sess. 2, reprinted in 1964

U.S. CODE CONG. & ADMIN. NEWS

POPP TT TTT TTT TT TT TTT TTTTTTTe 12

110 CONG. REC. 2577-84, 2718,

BUMS" ER CEOOED cccccccccccecccccecs 12

110 CONG. REC. 12,723-24 (1964) ..... 12

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

reprinted in 1972 U.S. CODE

CONG. & ADMIN. NEWS at 2144 ....... 13

S. Rep. No. 415, 92d Cong., Ist

Das GED —eddecescoocssotocececes 14

MISCELLANEOUS AUTHORITIES

Blumrosen, Strangers in Paradise:

Griggs v. Duke Power Co. and the

Concept of Employment Discrimina-

tion, 71 MICH.L.REV. 59 (1972) .... 9

Chamallas, Evolving Conceptions of

Equality Under Title VII:

Disparate Impact Theory and the

Demise of the Bottom Line Principle,

31 U.C.L.A. L.REV. 305 (1983) ..... 14, 15, 20

Friedman, Redefining Equality,

Discrimination, and Affirmative

Action Under Title Vil: The

Access Principle, 65 TEX.L.REV.

re 11, 14

viii

PAGE

Note, Application of the Adverse

Impact Analysis to Subjective

Criteria in Title VII Employment

Discrimination Cases, 38 BAYLOR |

* Fe 8) BPP 18

Note, Applying Disparate Impact

Theory to Subjective Employee

Selection Procedures, 20

LOYOLA OF LOS ANGELES L.REV.

Ee GREED cbecoscoevoccoecoescocec: 13

Schlei and Grossman, EMPLOYMENT

DISCRIMINATION LAW, (2nd

— PPPPPTTTTITTT TTT TTT Tee 25

INTEREST OF THE AMICI CURIAE

The Texas Commission on Human Rights was

established to enfgqrce the Texas Commission on

Human Rights Act, which prohibits various forms

of employment discrimination. This Texas statute is

modeled after and very closely tracks the language

of Title VII of the 1964 Civil Rights Act. Indeed,

the express purpose of the Texas Act is "to

provide for the execution of the policies embodied

in Title VII," including the objective of "secur[ing]

for persons within the state freedom from

discrimination in certain transactions concerning

employment." Id. at §1.02. To fulfill this

purpose, the Texas Commission on Human Rights is

given enforcement powers comparable to those of

the Equal Employment Opportunity Commission under

Title VII. Given the close parallels in language and

purpose between the Texas Commission on Human

Rights Act and Title VII, it may be expected that

Texas courts interpreting the state law are likely to

be guided by this Court's construction of Title VII.

Consequently, amicus curiae Texas Commission on

Human Rights has a significant interest in this

Court's decision in the instant case. For the

reasons set out in this brief, the Commission is

convinced that the application of disparate impact

analysis to subjective employment criteria is

essential for the eradication of illegal discrimination

in the workplace.

In deciding to submit this amicus brief on

behalf of the Texas Commission on Human Rights et

Vernon's Ann. Civ. Stat. Art. 5S2Z22Z21k 19é

2 sis ~ ~

42 U.S.C. §2000e et seq. (198:

al., the Attorney General of Texas has also weighed

the interests of the State of Texas as a major

employer. The Attorney General of Texas is

responsible for defending state agencies sued under

Title VII. It is the view of amici herein that the

marginal disadvantage to employers, if any, of

easing the plaintiff's burden in cases alleging

discrimination through subjective employment

practices, does not outweigh the State's interest in

the effective enforcement of anti-discrimination

laws. As explained in part IV of this brief, the

position advocated herein does not impose an

onerous burden on employers.

It is time to recognize that state government

throughout the nation has made impressive progress

in eliminating discrimination from its own

employment practices. While much remains to be

done before full equality of opportunity is achieved,

state government.need not fear close scrutiny of its

hiring practices and vigorous enforcement of

anti-discrimination laws.

The State of Texas is joined in this brief by:

The State of Alabama (by and through the

Honorable Don Siegelman, Attorney General); the

State of Hawaii (by and through the Honorable

Warren Price, Ill, Attorney General) ; the

Commonwealth of Massachusetts and Massachusetts

Commission Against Discrimination (by and through

the Honorable James M. Shannon, Attorney

General); the State of New Jersey (by and through

3

For example, while according to data compiled

by the State Bar of Texas only 18% of lawyers

licensed in Texas are female, 3.7% are Hispanic, and

1.6% are black 39% of the approximately 260

attorneys employed by the Attorney General of Texas

are female, 14% are Hispanic, and 9% are black.

the Honorable W. Cary Edwards, Attorney General);

the State of Ohio and Ohio Civil Rights Commission

(by and through the Honorable Anthony J.

Celebreeze, Jr., Attorney General); the State of

Rhode Island and Providence Plantations (by and

through the Honorable James E. O'Neil, Attorney

General); the State of Vermont (by and through the

Honorable Jeff Amestoy, Attorney General); the

State of Wyoming and Wyoming Department of Labor,

Fair Employment Division (by and through the

Honorable Joseph B. Meyer, Attorney General, and

Mike Sullivan, Commissioner of Labor).

For each amicus state, as with the State of

Texas, its Attorney General has balanced the

interest of the state as employer and the state as

protector of its citizens’ right to be free from

employment discrimination, and in each case has

struck that balance in favor of the position argued

herein. The Amici Curiae take no position on the

merits of the present case but regard as crucial the

ability of a plaintiff to try her case and have her

proofs judged under the proper legal theories

STATEMENT OF THE CASE

Amicus adopts the Statement of the Case as set

forth by the Petitioner in the instant case.

SUMMARY OF ARGUMENT

Disparate impact analysis has been a vital tool

in the eradication of employment discrimination since

the Court established its use in 1971. In Griggs v

Duke Power Co., 401 U.S. 424, 429-430 (1971), this

Court recognized that an essential function of Title

-4-

vir was to remove all barriers which denied women

and minorities equal employment opportunities. To

this end, the Court interpreted Title VII as

proscribing not only intentional discrimination, but

also employment practices that have discriminatory

effects, regardless of an employer's intent in

implementing them. Id., at 431.

The application of disparate impact analysis in

Griggs was not only an explicit recognition that

discrimination could take many forms but further, it

was an assertion that Title VII should attack

employment discrimination in both its overt and

more subtle forms. To realize the full extent to

which Title VII can be used as a tool to root out

discrimination requires a review of the historical

treatment of Title VII case law. Although the early

years of Title VII were characterized by cases

involving overt, intentional discrimination, the later

years have seen an increase in cases of more subtle

and thus less identifiable discrimination. Disparate

impact analysis, therefore, has been used not only

to attack neutral policies that effectively but

inadvertently discriminate against protected groups,

but also to challenge those neutral policies which

are in fact a pretext for intentional discrimination.

The use of subjective employment practices

creates at least as much risk of inadvertent

discriminatory effects as the use of objective

practices. Moreover, subjective criteria offer an

even more convenient pretext for intentional

discrimination than their objective counterparts.

The use of subjective criteria in hiring and

promotion of employees, although not discriminatory

per se, is nevertheless viewed suspiciously by most

4

Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000e et seq

courts. Reliance on subjective criteria leaves ample

room for the operation of bias and prejudice, and

should be examined closely by courts and used

sparingly by employers. Disparate impact analysis

under Title VII is an extremely valuable and

necessary analytical tool for courts. It enables

them to carefully scrutinize the use of subjective

employment criteria once a plaintiff has

demonstrated that such use has a disparate impact

on a particular group. It would be a grave

mistake, then, in light of Title VII's purpose of

ending discrimination, to completely disallow the

application of disparate impact analysis where it is

needed most: to challenge inherently suspect

subjective employment criteria.

Some would argue that it is unwise to subject

an employer's subjective practices to the heightened

scrutiny of disparate impact analysis. An employer

may, however, assert the affirmative defense of

business necessity when his or her practices are

challenged as having a disparate effect. Although

a showing of business necessity is a heavier burden

than that which is borme by a defendant in a

disparate treatment case, it is not onerous. First,

it is important to note that an employer is only

required to make such a showing once a plaintiff

bh met his or her burden of equal weight: to

Gemonstrate that the employer's practice has a

disparate impact. Thus the employer's burden is

not excessive when compared with that of the

.

.

A defendant employer in a disparate treatment

ase must merely articulate a legitimate

nondiscriminatory reason for taking a particular

personnel action. McDonnell] Douglas Corp. 1 reer

41) U.S. 192 (1973) Texas De pt of Comminits

Affair j Burdine 450 U.S 248 (1981)

6 ,

plaintiff-employee. Second, once a plaintiff

demonstrates that an employer's subjective practices

have a discriminatory effect on a particular group,

both public policy and the spirit of Title VII favor

asking the employer to explain and justify his or

her procedures. Finally, a showing of business

necessity to justify subjective employment practices

does not involve the painstaking use of scientific

validation techniques, as are frequently used in

cases involving objective criteria. An employer

need only demonstrate that the use of subjective

criteria is necessary to his or her business. Such

a showing is not onerous and is mandated by the

clear purpose of Title VII: the abolition of all

impermissible discrimination in employment.

ARGUMENT

I. INTRODUCTION

Title VII of the 1964 Civil Rights Act prohibits

discrimination in employment based on race, color,

religion, sex or national origin. 42 U.S.C.

§2000e-2(a) (1982). An employee may prove

employment discrimination under a_ theory of

disparate treatment or one of disparate impact. in

a disparate treatment case, a plaintiff alleges that

she was treated less favorably by her employer

based on her race, color, religion, sex, or national

origin. The plaintiff must show that her employer

intended to discriminate against her. International

Board of Teamsters v. United States, 431 U.S. 324,

335 mn.15 (1979). A discriminatory motive may be

inferred, however, when a plaintiff shows she is a

member of a protected class who was qualified and

applied for a position for which the employer was

seeking applicants, and failed to get that position,

which remained open after her rejection. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

:

Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248 (1981). The employer must then

articulate a legitimate non-discriminatory reason for

rejecting the plaintiff. Finally, the plaintiff may

show that the employer's reason is in fact a pretext

for intentional discrimination. Id.

In a disparate impact case, the elements are

somewhat different. First, a plaintiff must show

that one or more facially neutral employment

practices have a disparate impact on a group of

which she is a member. Proof of discriminatory

intent on the part of the employer is not required

Teamsters, supra, at 335 n.15. After a plaintiff

has made such a showing, the employer must justify

the employment practices by showing that they are

a “business necessity.” Griggs v. Duke Power

Co., supra, at 431. Finally, a plaintiff may show

that the employer's use of the employment practices

was in fact a pretext for intentional discrimination

One way in which she may make such a showing is

to demonstrate that there are satisfactory

alternations which are less discriminatory

Albemarle Paper Co. v. Moody, 422 U.S 405

(1975).

There are thus two major differences between

the theories which render the disparate impact

analysis a stronger weapon against discrimination

First, under the disparate impact theory, a plaintiff

does not have to prove intent as part of her prima

facie case Second, after a plaintiff has

demonstrated an adverse impact, the employer has

to do more than merely articulafe a_ legitimate,

nondiscriminatory reason for the disparity. Rather,

the employer must prove business necessity for the

use of the employment practice which causes the

disparate impact These two differences make the

disparate impact analysis a stronger tool with which

courts may closely examine an employer's practices,

once they have been shown to have had a

discriminatory impact

8

Ii. THE PURPOSE OF TITLE VII SUPPORTS THE

APPLICATION OF DISPARATE IMPACT ANALYSIS

TO SUBJECTIVE EMPLOYMENT CRITERIA.

A The statutory language of Title VII

supports the application of disparate

impact analysis to subjective employment

criteria.

Section 703 (a)(2) of Title vil’ provides that:

It shall be an unlawful employment practice for

an employer

(2) to limit, segregate, or classify

his employees or applicants for

employment in any way which would

deprive or tend to deprive any individual

of employment opportunities or otherwise

adversely affect his status as an

employee, because of race, color,

religion, sex or national origin.

Title VII thus prohibits all forms of employment

discrimination regardless of their subjective or

objective nature. Both subjective and objective

criteria can work to exclude a person that but for

that criteria would be qualified to perform the job.

There is nothing in the language of Section

703(a)(2) which draws a_i distinction between

objective and subjective employment criteria; nor is

there any language to suggest that discriminatory

effects of subjective criteria should go unchecked.

On the contrary, the language of Section 703(a)(2)

indicates that Title VII is to be read broadly,

covering a wide range of actions by an employer if

such action has the effect of depriving an

-9-

individual of employment opportunities or adversely

affects his or her status as an employee.

The emphasis thus is on the effects of

discrimination rather than on the causes of it.

Discrimination clearly can be the effect of many

subjective employment practices, regardless of an

employer's intent in instituting them. It is evident

from the expansive language of Title VII _ that

subjective employment procedures, if they have

discriminatory effects, constitute an unlawful

employment practice. Disparate impact analysis

should therefore be applicable in cases in which

plaintiffs can demonstrate that his or her subjective

criteria has a discriminatory effect on a group to

which he or she belongs.

B. The purpose of Title VII as interpreted

by this Court supports the application of

disparate impact to subjective employment

criteria.

In Griggs v. Duke Power Co., supra, this

Court held that Congress had indeed directed the

thrust of Title VII “to the consequences

employment practices, not simply the motivation.’

The Court's holding as to the scope of Title VII in

Griggs indicates a sensitive interpretation of the

statute and an undegstanding of the problem it was

intended to address.

’

:

401 U.S. 424, 432 (1971) (emphasis in the

original).

Blumrosen, Strangers in Paradise: Griggs |

Duke Power Co. and the Concept of Employment

Discrimination, 71 MICH.L.REV. 59, 63 (1972).

-10-

The assumption underlying Griggs is that

the Civil Rights Act of 1964 protects the

interests of minority groups and their

members in securing and _ improving

employment opportunities. Griggs views

discrimination not only as an isolated act

by an aberrant individual wrongdoer that

affects only an individual complainant,

but also as the operation of industrial-

relations systems that .adversely affect

group minority members.

In Griggs, this Court validated the disparate impact

analysis as a proper theory under which plaintiffs

could challenge employment practices which have

discriminatory effects.

Although iggs dealt specifically with

objective criteria the opinion does not expressly

limit disparate impact analysis. to such criteria. It

is important to note that throughout the Griggs

opinion, the Court makes ref fences to employment

"practices" and "procedures" and does not limit

its discussion to objective criteria such as tests.

The Griggs holding thus applies to all employment

practices and procedures, not simply to isolated

objective components.

9

Id., at 62.

on tons involved the use of a facially neutral

test.

l ' . . .

‘Under the Act, practices, procedures, or

tests neutral on their face, and even neutral in

terms of intent, cannot be maintained if they

operate to ‘'freeze' the status quo of prior

discriminatory employment practices." 401 U.S. 424,

430 (1971).

1l-

This Court has never expressly limited

disparate impact to objective criteria. The opinion

in Connecticut v. Teal, 457 U.S. 440 (1982), in

which the Court rejected the "bottom line" defense

in disparate impact cases, did not distinguish

between subjective and objective practices in ter

of the applicability of disparate impact analysis.

Nor did the court expressly limit disparate impact

analysis to objective criteria in Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978). Although

the Court did not apply the disparate impact

analysis to subjective employment practices, it did

not explicitly hold that disparate impact analysis

would be inapplicable in such cases. Moreover, the

plaintiffs in Furnco failed to make a showing of

disparate impact, thus making use of the, disparate

impact analysis inappropriate in that case.

C. The Congressional intent behind Title VII

supports the application of disparate

impact analysis to subjective employment

criteria.

Three legislative goals of Title VII are evident

from its legislative, social and political history.

As first proposed, the statute would have eliminated

12

457 U.S. 440, 447 n.8.

13

438 U.S. 567, 571.

4

Friedman, Redef ining Equality,

Discrimination, and Affirmative Action Under Title

Vil: The Access Principle, 65 TEX.L.REV. 41, 60

(1986).

-12-

race, color, religion and, national origin as factors

in employment decisions. The House also added

sex to the list , of prohibited bases for employment

discrimination. Eliminating intentional

discrimination was the first and mcst important goal

of Congress in 1964. In fact, some members of the

Senate were adamant that Title VII be limited to

intentional discrimination and forced the addition of

amendments which so limited the reach of the

statute. Senator Humphrey (D-Minn.), one of

the main proponents of Title VII, felt that the

addition of the amendments was unnecessary as the

statute implicitly required intent.

Since the title bars only discrimination

because of race, color, religion, scx or

natural [sic] origin it would seem already

to require intent, and, thus, the

proposed change does not involve any

substantive change ... The express

requirement of intent is designed to make

it wholly clear that inadvertent or

accidental gjscriminations will not violate

the title...

15

H.R. Rep. No. 914, 88th Cong., 2d. Sess. 2,

reprinted in 1964 U.S. CODE CONG. & ADMIN. NEWS

2355, 2401.

6

110 CONG. REC. 2577-84, 2718, 2720-21 (1964).

"If the court finds that the respondent has

intentionally engaged in or is intentionally

engaging in unlawful employment practice charged in

tne complaint, the court may enjoin respondent..."

42 U.S.C. §2000e-5(g) (1982).

8

110 CONG. REC. 12,723-24 (1964).

-13-

With that goal in mind, Congress passed Title VII

of the 1964 Civil Rights Act.

A review of the legislative history behind the

1972 amendments to Title VII reveals a second goal.

By 1971, Congress began considering amendments to

Title VII. Many Congressmen had increased their

understanding about employment dis¢gimination, its

victims, and how to eradicate it. Thus was

clarified a second goal of Title VII: the eradication

of the discriminatory effects of employment practices

regardless of employers’ intent.

During the preparation and presentation

of Title VII of the Civil Rights Act of

1964, employment practices tended to be

viewed as a_ series of isolated and

distinguishable events, due, for the most

part, to ill-will on the part of some

identifiable individual or organization...

Employment discrimination, as we

know it today, is a more complex and

pervasive phenomenon. Experts familiar

with the subject generally describe the

problem in terms of "systems" and

“effects” jpther than simply intentional

wrongs...

Congress saw the need for and approved the use of

the disparate impact theory.

A recent striking example was provided

by the Supreme Court in Griggs...where

the Court held that use of employment

19

Note, Applying Disparate Impact Theory to

Subjective Employee Selection Procedures, 20 LOYOLA

OF LOS ANGELES LAW REVIEW 323, 386 (1987).

H.R. Rep. No. 238 2d Cong. reprinted in

1972 U.S. CODE CONG. & AD. NEWS at 2144.

-14

tests, even when nondiscriminatory and

applied in good faith by the employer,

was a violation of Title VII if such tests

work a discriminatory effect in hiring

patterns ... Id.

The Senate Committee in fact endorsed the use of

the disparate impact theory by the Civil Service

Commission to reexamine its entire rehiring and

promotion procedures.

The final goal of Title VII was to minimize

government interferenc with "traditional

management prerogatives." This final goal of

trying to preserve employer autonomy may not

alway gre consistent with the other two statutory

goals. To preserve employer autonomy completely

21

"Tt is in these and other areas where

discrimination is institutional, rather than merely

a matter of bad faith, that corrective measures

appear to be urgently required. For example, the

Committee expects the Civil Service Commission to

undertake a thorough reexamination of its entire

testing and a qualification program to ensure that

the standards enunciated in the Griggs case are

fully met." S. Rep. No. 415, 92d, Cong., ist Sess.

(1971) (emphasis added).

a 1edman supra at 61. See Local 93,

International Assoc of Firefighters v City of

Cleveland, U.S. _; 106 §.Ct. 3063 3075

(1986).

23

"Not unexpectedly the implementation of

Title VII has uncovered profound tensions by

attempting simultaneously to wipe out discrimination

while minimally disrupting private decision making.

(Footnote Continued)

15-

would be toc allow employers absolute discretion in

their employment practices, to hire, terminate and

promote at will, based on race, sex, performance or

any other standard. Exercise of such discretion is

not tolerated when it operates to discriminate

against women or minorities. As a matter of public

policy some practices must be prohibited regardless

of whether the prohibition interferes with

"traditional management prerogatives." For

example, compare the proscription of discrimination

in public accommodation. Title II of the Civil

Rights of 1964, 42 U.S.C. §2000a (1982); Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 257,

259-261 (1964). By definition, a prohibition against

employment discrimination such as Title VII must

interfere with “traditional management prerogatives”

to the extent that those prerogatives discriminate.

To be sure, the freedom of employers to freely

conduct their businesses must be preserved. Their

freedom ends, however, and must be enjoined,

when it infringes on an employee's right to be free

from discrimination based on her race, color,

religion, sex or national origin. The overriding

purpose of Title VII is to end discrimination. “It is

abundantly clear that Title VII tolerates no

discrimination, subtle or otherwise.” McDonnell

Douglas v. Green, supra, at 801.

Although judicial examination of employers’

subjective practices interferes somewhat with their

"traditional management prerogatives,” it does so

only to the extent that those prerogatives

inadvertently or intentionally are used to

(Footnote Continued

Chamallas Evol ing once pt ns f Equal

Title b a D sparate impa ' The ry and the a=

f the R. fom ‘ RE

16

discriminate. Judicial interference takes place only

ifter there has been a prima facie showing that an

employer's practices have d a discriminatory

effect on a particular group. At that point, such

ar intrusion is warranted and even mandated by the

purpose of Title VII. It is essential to the

fulfillment of the explicit goal of Congress in

enacting Title VII that courts be allowed to use the

most effective tools to attack employment

discrimination. Disparate impact is such a tool, and

should be used in the examination of subjective

criteria if they adversely impact the employment of

women and minorities.

D. The agencies charged with enforcement of

Title VII apply disparate impact analysis

to subjective employment criteria.

In 1978, Title VII's four enforcement

agencies jointly issued the Uniform Guidelines on

Employee Selection Procedures. 29 C.F.R. §1607.1.A

(1985). The 1978 Guidelines strengthened the

agencies’ regr ations with respect to disparate

impact analysis by stating that any “procedure

having adverse impact constitutes discrimination

unless justified.” 29 C.F.R. §1607.3.A. (1985)

24

Aibemarie, supra, at 425 (saying that

employer's burden to prove business necessity

court's satisfaction only arises after a plaintiff

makes a prima facie showing that the employment

practices have a disparate impact)

.

Zz

The Equal Employment Opportunity Commissior

:

FEOC the Department of Justice, the Department of

Labor and the Civil Service ommission.

17

They also defined the employment procedures to

which adverse impact analysis was applicable as

including subjective criteria.

Selection procedures includes the full

range of assessment techniques, from

traditional paper and pencil tests

through informal or casual interviews and

unscored application forms. 29 C.F.R

§1607.16.Q (1985) (emphasis added).

Through these Guidelines, the EEOC and other

enforcement agencies have announced their view

thai the law requires application of the disparate

impact model to all selection procedures, objective

or subjective. .Atonio v. Wards Cove Packing Co.,

Inc., 810 F.2d 1477, 1483 (9th Cir. 1987).

Such agency regulations are entitled to “great

deference,” and can be treated as “expressing the

will of Congress.” Griggs, supra at 434

Enforcement agencies such as the EEOC are no

doubt intimately familiar with the workings of the

statute, and have a uniquely accurate view of

where discrimination may be found. Their views of

the law reflect their experience in the real world of

employment discrimination and should be accorded

great weight by courts. In this case, the EEOC

has obviously found that discrimination can result

from all employment procedures, and applies

disparate impact to both objective and subjective

criteria. Its conclusion springs from years of

processing thousands of discrimination claims and

should be accorded “great deference” by this

Court

Al bema »

4 4 A wy Pack ing

18

E. To hold that disparate impact analysis is

not applicable to subjective employment

criteria would frustrate the purpose of

Title VII.

One of the consequences of prohibiting the use

of adverse impact analysis to challenge subjective

employment practices would undoubtedly be to

encourage the use of such practices.

Exclusion of such subjective practices

from the reach of the disparate impact

model of analysis is likely to encourage

employers to use subjective, rather than

objective, selection criteria. Rather than

validate education and other objective

criteria, employers could simply take such

criteria into account in subjective

interviews or review panel decisions. It

could not have been the intent of

Congress to provide employers with an

incentive to use such devices rather than

validated objective criteria.

Griffin v. Carlin, 755 F.2d 1516, 1525 (llth Cir.

1985). An employer could effectively immunize

himself from the more exacting scrutiny of a

disparate impact challenge merely by adopting

subjective employment practices. “If an employer

cannot be challenged for an employment policy

which is a subjective mix of a variety of factors,

that is , the type of system the employer will

create.” Congress could not have intended to

encourage the use of employment criteria that are

Z }

Note Application of the Adverst lmpact

Analysis to Subjective Criteria in Title Vi

Employment Discrimination Cases 16 BAYLOR LAW

REVIEW, 363 3681 (1986).

19

inherently suspect, and that can easily be used to

mask intentional discrimination. Encouraging the

use of subjective criteria by limiting the reach of

disparate impact analysis would subvert the clear

intent of Congress in enacting Title VII.

One of the purposes of enacting Title VII was

to encourage employers to take it upon themselves

to evaluate their own employment practices Title

VII:

provides the spur or catalyst which

causes employers and unions to

self-examine and to _ self-evaluate their

employment practices and to endeavor to

eliminate, so far as possible, the last

vestiges of an unfortunate and

ignominious page in this country's

historv

Albemarle, supra, at 417-418. This purpose of

Title VII would clearly be undermined if this Court

were to hold that disparate impact analysis was not

applicable to subjective criteria. Instead of

encouraging employers to examine their practices in

order to eliminate the vestiges of discrimination, it

would allow employers to practice discrimination

under the guise of subjective employment practices

A policy which is further away from Congress’

intent in enacting Title VII can hardly be imagined

Finally, Congress intended Title VII, especially

the 1972 amendments, to attack discrimination in

both its overt and more subtle forms rhe

disparate impact model is an invaluable tool in the

eradication of discrimination in its more subtle form

Once these employment practices with

differential impact have been brought into

the open, no sound policy reason exists

for refusing to apply traditional disparate

impact analysis to them Indeed,

application of disparate impact in_ this

situation speeds the day when we will

20

have rid ourselves of discrimination in its

subtle as well as its crass aspect.

Segar v. Smith, 738 F.2d 1249, 1271 n.18 (D.C.

Cir. 1984), cert. denied, 471 U.S. 1115 (1985)

(emphasis added). Although the early years of

Tithe VII were characterized by cages of blatant,

overt and intentional discrimination, recent cases

more often involve inadvertent or more subtle forms

of discrimination. “The overt and blatant bigotry

that marked the leading civil rights cases of an

earlier year seldom supplies the gravaman of cases

which now reach the appellate courts.” Parker v.

Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1013

(D.C. Cir. 1981). In short, racism and other

forms of discrimination have gone underground. As

is the case with any law, people have found a way

to circumvent Title VII, masking racism and the like

in the form of employment criteria, objective and

subjective. Not allowing the application of the

disparate impact model to both objective and

subjective practices would thwart the purpose

behind Title VII, and allow subtle discrimination to

go unchecked. ‘This was not the purpose behind

Title VII and should not be supported by this

Court

It was the more onspicuous forms f

intentional discrimination that animated the

legisiative initiative in 1964 and in the first

7

decade after Title VII's enactment occupied the

energy and time of the courts and of the EE

hamallas Evolving Conceptions wf Equality Under

Pitie Vii Disparate impact Theory and the Demis:

of the Bottom Line Principle 31 62ULC.LLA L.REV

30° 4110 (1983

OUR)

i THE MAJORITY OF CIRCUIT |

APPLY DISPARATE IMPACT ANALYSIS 7

SUBJECTIVE EMPLOYMEN'’ RITERIA

The Second. Third. Sixth. Ninth. Tent)

Eleventh and District of Columbia Circuits apply

disparate impact analysis to subjective practices and

criteria The Fourth. Seventh and , Fight?

suits i he

Circuits have reached conflicting re

22

Fifth Cireuit, from which this case originates, has

also reached conflicting results In earlier cases,

the court, relying on Rowe v. General Motors

Corp., 457 F.2d 348 (Sth Cir. 1972), applied

disparate impact analysis to subjective criteria. In

more recent cases, however, the court has relied on

Pouncy v. Prudential Insurance Co., 668 F.2d 795

(5th Cir. 1982), im refusing to apply disparate

impact analysis to subjective criteria. Recently,

the Fifth Circuit did apply the theory to subjective

practices, in accord with Rowe In Page v. U.S

Industries, iInc., 726 F.2d 1038 (Sth Cir. 1984),

the court applied disparate impact analysis because

“promotional systems which depend upon the

subjective evaluation and favorable recommendation

of immediate supervisors provide a ready vehicle for

discrimination.” iId., at 1054

The majority of courts apply disparate impact

analysis to subjective criteria The remaining

courts have all applied it at one time, but now have

reached conflicting results Not one circuit court

has consistently refused to apply disparate impact

analysis to subjective criteria

\ The use of subjective employment criteria

is viewed suspiciously by courts as a

convenient pretext for discrimination, and

thus warrants the application of disparate

impact analysis

-23-

Most circuit courts view the use of subjective

criteria by employers suspiciously , as a ready

mechanism for discrimination. "We have

repeatedly held that subjective practices such as

interviews and supervisory recommendations are

capable of operating as barriers to minority

advancement." Griffin v. Carlin, supra at 1525.

Of particular concern to the courts are cases in

which the subjective evaluations are made of

minority employees by white supervisors. “This

Court and others have expressed a skepticism that

Black persons dependent directly on decisive

recommendations from Whites can expect

non-discriminatory action." ‘Crawford v. Western

Electric Co., supra, at 1316. Such concern

illustrates the fear that many courts have when

they consider the ease with which employers can

mask racial bias with subjective employment

practices.

‘Atonio v. Wards Packing Co., Inc., supra at

1484 (9th Cir. 1987); Griffin v. Carlin, supra at

1525 (llth Cir. 1985); Williams v. Colorado Springs,

Colo Sch Dist 641 F.2d 835, 842 (10th Cir.

1981): Crawford v. Western Electric Co., 614 F.2d

1300, 1315 (Sth Cir. 1980); Grant v. Bethleham Steel

Corp 635 F.2d 1007, 1016 (2d Cir. 1980); Davis +

Califano 613 F.2d 957 965-966 (D.C. Cir. 1979

Abrams v lohnson 534 F.2d 1226 (6th Cir. 1976);

Barnett v. W.7T. Grant Co 518 F.2d 543 550 (4th

Cir. 1975); Muller v U.S Steel Corp 509 F.2d

923 928 (10th ir.) cert denied 423 U.S. 825

(1975); Rogers | International Paper Co 51

1340, 1345 (8th Cir. vacated 423 U.S. 809 (197

Rowe v feneral Motors Cory, 457 F.2d 348 (5th r

-34-

Considering that subjective employment

practices are inherently suspect, the use of the

disparate treatment analysis to examine them is

clearly appropriate. The majority of the circuit

courts agree, and in fact apply impact analysis to

cases involving purely discretionary and subjective

decision - maki by employers and their

supervisors. Under the disparate treatment

model, an employer would merely be required to

articulate a legitimate, nondiscriminatory reason for

the adverse impact of the subjective employment

practice. Under the disparate impact model,

however, an employer would have to justify his or

her use of subjective criteria as a business

necessity. Disparate impact is therefore a more

stringent examination of an employer's practices and

is appropriate when these practices are inherently

suspect, as subjective criteria are.

IV. BUSINESS NECESSITY IS NOT AN

ONEROUS BURDEN FOR EMPLOYERS.

The Supreme Court first articulated’ the

business necessity defense in Griggs v. Duke Power

Company, supra. In that case, this Court used

“business necessity" and "job-relatedness"

interchangeably, and defined the burden as a

“showing that any given requirement must have a

manifest relationship to the employment in

question." Griggs, supra at 432. In Albemarle

Paper Co. v. Moody, this Court said that an

employer has a legitimate interest in “efficient and

trustworthy workmanship,” 422 U.S. 405 at 425,

thereby suggesting that an employment practice, to

32.

Supra, note ll

-95-

be justified, must be related to that interest. In

Dothard v. Rawlinson, the Court stated that "a

discriminatory employment practice must be shown

to be necessary to the safe and efficient job

performance to survive a title VII challenge." 433

U.S. 321 at 331 & n.14 (1977). Circuit courts and

legal commentators have further clarified the scope

of business necessity.

As the Ninth Circuit has held, “precisely what

the employer must prove will vary with the factors

of different job settings." Atonio, supra at 1486.

Two prominent legal scholars in employment law

have said that "business necessity” and

"job-relatedness" are not interchangeable terms.

"Job-relatedness is one, but not the expjusive,

means of establishing business necessity." The

circuit court decisions support such a distinction.

Job-relatedness is but one of the two standards

which have emerged from the circuit court decisions

as ways to prove business necessity. The second

standard is one of safety and efficiency. "As it

has worked out in the lower courts, the

job-relatedness language is usually applied _ to

testing and academic requirements, while the safety

and efficiency language is generally applied to other

employment practices." Williams v. Colorado

Springs, Colo. Sch. Dist., supra, at 841, n.2.

Basically, an employer should have to prove

that his or her use of subjective employment

criteria is a business necessity. "The term

‘necessity’ connotes that the exclusionary practice

must be shown to be of great importance to job

performance..." Id. Additionally, an employer

should have to prove that the characteristics for

33

Schlei and Grossman EMPLOYMENT

DISCRIMINATION LAW (2nd Ed. 1983) at 114.

~-36-

which he or she _ subjectively evaluates’ the

applicants are related to the effective operation of

the business. Finally, “there must be available no

acceptable alternative policies or practices which

would better accomplish the business purpose

advanced, or accomplish it equally well with a

lesser discriminatory racial impact.” Id., quoting

Robinson v. Lorillard Corp., supra at 798. In

order to satisfy this final part of the business

necessity showing, employers would merely have to

show that other practices, such as more objective

criteria, would not serve their business purpose as

well as their present criteria.

There have been and will be cases in which

subjective criteria survive a disparate impact

challenge. One such case involved the process by

which tenure decisions were made by a university.

In Zahorik v. Cornell University, supra, although

the plaintiff failed to prove disparate impact, the

court discussed the business necessity of using a

highly subjective process. It said that even though

the process by which tenure decisions were made

was very subjective, the process was job-related.

729 F.2d 85 at 96. Many jobs, especially white

collar, professional and supervisory jobs, often

require at least some degree of subjective

evaluation. When such criteria is challenged for

disparate impact, an employer should have to show:

(1) that the effective operation of the business

requires subjective criteria; (2) that the

characteristics for which the applicants § are

subjectively evaluated are related to the business

purpose; (3) and that the business could not be

as effectively operated with the use of different

criteria which have a less discriminatory impact.

A showing of business necessity is not an

onerous burden for employers to bear for a number

of reasons. First and foremost is the fact that an

employer does not have to show business necessity

until after a plaintiff has established that the

27

employment practices of the employer have a

discriminatory impact. "This burden arises, of

course, only after the complaining party or class

has made out a prima facie case of discrimination,

..@. has shown that the [practices] in question

select applicants for hire or promotion in a racial

pattern significantly different from that of the pool

of applicants.” Albemarle, supra at 425. The

employer's burden vests only after the plaintiff has

met her burden of at least equal weight. As the

Ninth Circuit recently pointed out:

The burden of proof on the employer is

commensurate with the greater burden on

the plaintiff to prove impact and to

establish the causal connection between

the practices and the impact. Once a

challenged practice which causes disparate

impact is identified, it does not place an

unfair burden to ask an employer to

justify the challenged practice.

Business necessity, therefore, is not an onerous

burden for an employer to bear in light of the

substantially equal burden that rests with the

plaintiff in an adverse impact case.

Moreover, once a plaintiff has met her burden

in an adverse impact case, such a strong showing

of discrimination cries out for an equally strong

justification. "The hard, cold statistical record of

impact provides a stronger circumstantial case of

discrimination than a subjective claim of improper

motivation.” Grant v. Bethlehem Steel Corp.,

supra at 1015. To force an employer to justify the

use of an employment practice once that practice

supra at 1486 See also Segar 1 Smith, supra at

-28-

has been shown to have a statistically disparate

impact does not impose too heavy a burden.

A showing of business necessity by the

employer is not too onerous a burden considering

that the employer is in the best position to make

such a showing.

The employer will possess knowledge far

superior to that of the plaintiff as to

precisely how its employment practices

affect employees. This fagt, as the Fifth

Circuit noted in Pouncy, 668 F.2d at

801, traditionally justifies placing on the

defendant the burden of proving bugjness

necessity of an employment practice.

The Ninth Circuit has said that in its view, proving

business necessity is not more onerous in cases

involving subjective criteria, simply because the

employer has the superior knowledge of “what his

practices are and why he uses the methods and

criteria he does, ... [and] precisely how his

employment practices affect employees." Afonio,

supra, at 1486. Asking an employer to open up his

or her practices, to explain and to justify them

after they have been shown to have a

discriminatory effect, does not impose an

unreasonable burden.

CONCLUSION

The clear purpose behind Title VII was to end

discrimination in whatever form it might take.

35

Pouncy v Prudential Insurance Company

America, supra

36

Segar v. Smith, supra, at 127!

29

Disparate impact analysis is an effective and

essential tool available to courts in examining an

employer's practices To immunize subjective

employment practices from the exacting scrutiny of

disparate impact analysis would be to subvert the

explicit purpose behind the enactment of Title VII

Adverse impact analysis should be available to

challenge any employment criteria that have been

shown to have a discriminatory impact. Only in

this way can our society ever hope to overcome the

legacy of social, political and economic subjugation

suffered by women and minorities which has in the

past, frustrated, and continues today to frustrate,

their attempts to compete with others on an equal

basis

Respectfully submitted,

JIM MATTOX

Attorney General of Texas

MARY F. KELLER

Executive Assistant

Attorney General for

Litigation

ON THE BRIEF:

ELAINE ROMBERG JAMES C. TODD

Legal Intern Chief, General Litigation

Division

P.O. Box 12548

Capitol Station

Austin, Texas 78711

(512) 463-2120

ATTORNEYS FOR AMICI

CURIAE

a

CERTIFICATE OF SERVICE

30

I hereby certify that three true and correct

copies of the foregoing instrument has been sent

via U.S. Mail, certified, return receipt requested,

as of the i4th day of September, 1987 to the

following counsel of record at the addresses

indicated:

Art Brender

Brender, Casey & Colosi

930 Capital National Bank Bidg.

110 W. 7th at Houston

Fort Worth, Texas 76102

Mr. Bruce W. McGee

Gandy, Michener, Swindle,

Whitaker & Pratt

2501 Parkview Drive, STE 600

Forth Worth, Texas 76102

Assistant Attorney

General