Appendix — Meese v. Segar

\ .

4-120 6 e) weet Tt st US.

JAN 24 1985

No. ALEXANDER L. STEVAS,

on re renner Nereis seemed memantine”

In the Supreme Court of the United States

OCTOBER TERM, 1984

WILLIAM FRENCH SMITH,

ATTORNEY GENERAL, ET AL., PETITIONERS

Vv.

HENRY W. SEGAR, ET AL.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REX E. LEE

Solicitor General

RICHARD K. WILLARD

Acting Assistant Attorney General

ROBERT E.. Kopp

JOHN HOYLE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ee ee hee ec ee ee

TABLE OF CONTENTS

Page

Appendix A (Opinion of the Court of Appeals) -........ la

Appendix B (Opinion of the District Court) —............ 99a

Appendix C (Judgment of the Court of Appeals) ....... 148a

Appendix D (Order denying the Petition for Rehear-

| RR Se a aed Sieger ae eae Bee 150a

Appendix E (Order dated Sept. 6, 1984) 0.0000... 152a

Appendix F (Order dated June 26, 1984) _ 0.0... 153a

APPENDIX A

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT

Nos. 82-1541, 82-1590

HENRY W. SEGAR, ET AL.

Vv.

WILLIAM FRENCH SMITH,

ATTORNEY GENERAL, ET AL., APPELLANTS

HENRY W. SEGAR, ET AL., CROSS-APPELLANTS

Vv.

WILLIAM FRENCH SMITH,

ATTORNEY GENERAL, ET AL.

Argued Sept. 8, 1983

Decided June 22, 1984

As Amended June 26, 1984

Appeal and Cross-Appeal from the

United States District Court

for the District of Columbia

(D.C. Civil Action No. 77-00081 )

(la)

2a

Before WRIGHT, WALD, and EDWARDS, Circuit

Judges.

‘pinion for the court filed by Circuit Judge J. SKELLY

"2IGHT.

Concurring opinion filed by Circuit Judge HARRY T.

EDWARDS.

J. SKELLY WRIGHT, Circuit Judge:

Title VII of the Civil Rights Act of 1964’ proclaims

one of this nation’s most fundamental, if yet unrealized,

principles: a person shall not be denied full equality of

employment opportunity on account of race, color, re-

ligion, sex, or national origin. Title VII bars both in-

tentional discrimination and artificial, arbitrary, or un-

necessary barriers to equal opportunity.? In this case

we review a decision of the United States District Court

for the District of Columbia, Segar v. Civiletti, 508 F.

Supp. 690 (D.D.C. 1981), holding that the federal Drug

Enforcement Agency (DEA) had engaged in a pattern

or practice of discrimination against its black agents in

violation of Title VII. A class comprising black agents

142 U.S.C. § 2000e et seq. (1976 & Supp. V 1981).

2 Section 703(a) of the Civil Rights Act provides:

It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any indi-

vidual, or otherwise to discriminate against any individ-

ual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s

race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would de-

prive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as

an employee, because of such individual’s race, color,

religion, sex, or national origin.

42 U.S.C. § 2000e-2(a). That section applies fully to the

federal government, id. § 2000e-16.

8a

initiated this suit in 1977 and the case came to trial in

1979. Finding that DEA had discriminated against black

agents in salary, promotions, initial (GS) grade assign-

ments, work assignments, supervisory evaluations, and

imposition of discipline, 508 F.Supp. at 711-715, the Dis-

trict Court ordered a comprehensive remedial scheme con-

sisting of a class-wide backpay award, promotion goals

and timetables to ensure that qualified black agents re-

ceived promotions to the upper levels of DEA, and a

class-wide frontpay award to compensate such qualified

agents while they awaited the promotions they deserved.

In the course of the proceedings the court also denied

plaintiffs’ request for pre-judgment interest and issued a

preliminary injunction barring transfer or demotion of

Carl Jackson (the Jackson injunction), a black agent

who was the subject of adverse employment decisions

immediately after his testimony for plaintiffs in this

lawsuit.

On appeal DEA challenges the liability determination,

the remedial scheme, and the Jackson injunction. Plain-

tiffs cross-appeal the deniai of prejudgment interest. As

to the liability determination, DEA urges that the trial

court erred in finding that plaintiffs had presented suf-

ficient probative evidence to support any inference of

discrimination at DEA, and urges that DEA had in any

event effectively rebutted plaintiffs’ showing. As to the

remedial scheme, DEA argues that class-wide relief was

inappropriate and that imposition of promotion goals and

timetables both exceeded the court’s remedial authority

under Title VII and violated the equal protection com-

ponent of the Fifth Amendment Due Process Clause.

DEA also argues that Carl Jackson did not make a

showing of retaliation sufficient to justify the prelimi-

nary injunction.

To resolve this appeal we have had to plumb some of

the deepest complexities of Title VII adjudication. After

careful review, we affirm the District Court’s liability

determination in its entirety. We also affirm the trial

4a

court’s decision to use a class-wide backpay remedy, but

we vacate the backpay formula imposed and remand for

reformulation of the particular backpay award. We also

vacate the part of the District Court’s remedy that man-

dates promotion goals and timetables. We do not hold

that such remedies exceed a court’s remedial authority

under Title VII. Nor do we hold that such remedies vio-

late the Constitution. Nonetheless, we find that the Dis-

trict Court’s particular order of goals and timetables was

not appropriate on the current factual record. Because

the frontpay remedy was specifically linked to the promo-

tion goals and timetables, we vacate that part of the re-

medial order as well, and remand to the District Court

for further consideration of appropriate remedies.* We

affirm the preliminary injunction against demotion or

transfer of Carl Jackson and we expect the District

Court to undertake resolution of the status of the Jack-

son injunction on remand. We affirm the trial court’s

denial of prejudgment interest.

I. BACKGROUND

DEA, an agency formed in 1973 within the Justice

Department, enforces this nation’s federal criminal laws

concerning the illegal sale, distribution, and use of drugs.

Establishing DEA, the federal government sought to con-

solidate drug enforcement efforts that had theretofore

been spread among several agencies. “Special agents”

carry on the bulk of DEA’s criminal investigative work.

DEA employs about 2,000 such agents, and as of 1978

seven percent were black. Special agents perform sur-

veillance of suspected drug dealers, transact “buys” of

drugs as evidence for prosecutions, do related undercover

work, develop cases for prosecution by United States

3 We vacate the frontpay remedy only because the trial court

specifically linked it to the promotion timetables, and without

prejudice to reinstatement of a new frontpay remedy if the

trial court finds such a course appropriate on remand.

i

5a

Attorneys, and, depending on their rank, supervise other

special agents. Findings of Fact (Findings) {{f] 1-2, 508

F.Supp. at 693-695.

The District Court made extensive findings of fact

concerning DEA’s employment practices. See Findings

17 1-51, 508 F.Supp. at 692-711. Though we need not re-

hash the factual context of this case in its entirety, we

will review the facts particularly pertinent to the issues

on appeal.

A. DEA’s Personnel Requirements

Hiring. The Civil Service Commission Handbook es-

tablishes the minimum entry level requirements for spe-

cial agents. Depending on qualifications, special agents

will enter at either GS-7 or GS-9. The requirements for

entry at. GS-7 are three years of general experience and

one year of specialized experience. The requirements for

GS-9 are three years of general experience and two

years of specialized experience.* In additicn, special

agents are defined as criminal investigators, and this

classification requires that one year of their prior spe-

cialized experience be in law enforcement or comparable

work.®

Work Assignments. Special agents carry out the variety

of assignments described above. Race influences the loca-

tion of an agent’s assignment. All other things being

equal, DEA will assign black agents to areas where a

large percentage of the suspected violators are black.

Race also influences the type of work agents receive.

Black agents tend to perform a disproportionately large

amount of undercover work. DEA generally infiltrates

* The parties have stipulated as to the Civil Service defini-

tions of general experience and specialized experience. See

Joint Exhibit I (the relevant portions of which are presented

at Joint Appendix (JA) 39-43). These definitions are dis-

cussed in detail infra. See Part II-B-l-a infra.

5 See Joint Exhibit I, JA 40.

6a

drug networks from the bottom up, and operates on the

assumption that black agents will be more readily able

to infiltrate organizations consisting primarily of blacks.

The nature of an agent’s work assignments will have an

important bearing on the agents’ prospects for promotion.

Though some undercover work is desirable, a surfeit of

such work injures an agent’s promotion opportunities be-

cause the agent is unable to obtain the breadth of

experience needed for promotions. Findings 7 23, 508

F.Supp. at 705.

Promotions. At DEA promotions from GS-7 to GS-9,

from GS-9 to GS-11, and from GS-11 to GS-12 are non-

competitive. A special agent receives a promotion upon

completion of one year of service in grade, recommenda-

tion by the agent’s group supervisor, concurrence by a

second level supervisor, and approval by a DEA regional

director.

Promotions from GS-12 up through GS-18, the highest

GS level at DEA, are competitive agency-wide. To receive

such a promotion an agent must satisfy the minimum in-

grade requirement, be placed on the “best qualified” list

by the appropriate rating and ranking board, and be

selected by the appropriate selecting official. In making

determinations the rating and ranking boards rely pri-

marily on the agent’s most recent performance appraisal,

information on disciplinary action within the last two

years, and the agent’s application and profile sheet.

Those agents chosen for the best qualified list are then

ranked numerically on a series of performance factors.°

¢When the numerical system was first implemented in

1976, point values were as follows: length of experience

(20); breadth of experience (40); education and training

(10). In 1978 DEA modified the rating system as follows:

breadth of experience (45); performance evaluations (45) ;

training (10). Within the breadth of experience and per-

formance evaluation categories are several subcategories.

Under breadth of experience are: supervisory experience

(8) ; complex investigation experience (6) ; internal security

7a

Rating and ranking boards have not been provided with

any particular guidance for assigning numerical values to

various aspects of an agent’s performance. Findings { 4,

508 F.Supp. at 695.

B. This Lawsuit

In January 1977 two black special agents of DEA, and

an association representing all black special agents,

brought suit alleging that DEA had engaged in a pattern

or practice of racial discrimination against black special

agents in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et 8éq., aS amended by the

Equal Employment Opportunity Act of 1972, 42 U.S.C.

§ 2000e-16 (1976 & Supp. V 1981). These agents alleged

discrimination in recruitment, hiring, initial grade as-

signments, salary, work assignments, evaluations, disci-

pline, and promotions. See Complaint, Joint Appendix

(JA) 22.

On September 9, 1977 the trial court, pursuant to

Federal Rule of Civil Procedure 23 ( b) (2), certified the

class of all blacks who then served or had had been dis-

charged as special agents at DEA, and who had applied

for positions or would in the future apply. Order of

Class Certification, September 9, 1977 JA 37. Before

trial the parties settled the claims involving discrimina-

tory recruitment and hiring, but could not come to terms

on the other issues. See Stipulation of Settlement of

Plaintiffs’ Claims of Discrimination in Recruiting and

Hiring of Special Agents, JA 44. As is common in Title

VII class actions, the District Court bifurcated the trial

into separate liability and remedia! phases. After lengthy

discovery, the liability issues came to trial in April 1979.

experience (7); diverse domestic (6) and foreign (7) ex-

perience; and special skills (4). Under performance evalua-

tion are: most recent annual rating (25); supervisor’s com-

ments (15); and awards (5). Findings § 4, 508 F.Supp. at

695.

8a

The trial was in large measure a duel of experts armed

with sophisticated statistical means of proof.

1. The plaintiffs’ case. The plaintiffs presented a

range of statistical and anecdotal evidence of discrimina-

tion. The statistical evidence included several multiple

linear regression analyses as well as a number of studies

considering the effects of particular employment prac-

tices.

Multiple regression is a form of statistical analysis

used increasingly in Title VII actions that measures the

discrete influence independent variables have on a de-

pendent variable such as salary levels. See Valentino v.

U.S. Postal Service, 674 F.2d 56, 70 (D.C.Cir. 1982).

Typically the independent variables in Title VII cases

will be race, age, education level, and experience levels.

The first step in a multiple regression analysis is specifi-

cation of the independent (or explanatory) variables

thought likely to affect significantly the dependent vari-

able. The choice of proper explanatory variables deter-

mines the validity of the regression analysis. A coherent

theory, devised prior to observation of the particular data,

must be employed to select the relevant explanatory vari-

ables. See Vuyanich v. Republic Nat'l Bank of Dallas

(Vuyanich I), 505 F.Supp. 224, 269 (N.D.Tex. 1980),

vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984).

When the proper variables have been selected, the multiple

regression analysis is conducted, generally by a computer.

In essence, the regression measures the impact of each

potential explanatory variable upon the dependent vari-

able by holding all other explanatory variables constant.

The analysis yields figures demonstrating how much of

an observed disparity in salaries can be traced to race,

as opposed to any of the other potentiai explanatory

variables.

The computer analysis will generally also yield two

other measurements that assist in evaluation of the ex-

planatory power of the regression. The first is “T-Ratio.”

The T-Ratio measures the probability that the result ob-

9a

tained could have occurred by chance.? The second is R?.

The R? figure measures, to a certain extent, the degree to

which a multiple regression analysis taken as a whole

explains observed disparities in a dependent variable.

Having observed an average disparity in salary of

about $3,000 between white and black special agents at

DEA, plaintiffs’ experts, Professors Bergmann and Strasz-

heim,® formulated a regression analysis to discover

whether and to what extent race explained the observed

salary disparity. The experts based their analysis on a

“human capital model.” A widely accepted approach, the

model builds on labor economists’ findings that the human

capital an employee brings to a job—such as education

and experience—in large measures determines the em-

ployee’s success. See Note, Beyond the Prima Facie Case

in Employment Discrimination Law: Statistical Proof

and Rebuttal, 89 Harv. L. REV. 387, 480 n. 90 (1975) ;

Vuyanich I, supra, 505 F.Supp. at 265-267.

Plaintiffs’ experts selected education, prior federal ex-

perience, prior nonfederal experience, and race as the

four independent variables that might explain the salary

differential. Information regarding these independent

variables came from the computerized JUNIPER person-

nel information tapes of the Department of Justice. Find-

ings {| 7a-b, 508 F.Supp. at 696. Professors Bergmann

and Straszheim then ran the regressions. They first eval-

uated the causes of salary disparities among all agents

as of five dates: the first of January in 1975, 1976, 1977,

and 1978 and the first of October in 1978. This study

generated the following results:

7™The T-Ratio figure for a particular measure of race-

related disparity corresponds to the number of standard de-

viations for that figure. D. BALDUS & J. COLE, STATISTICAL

PROOF OF DISCRIMINATION 297 n. 14 (1980).

8 Professors Bergmann and Straszheim both hold Ph.D.’s

and teach labor economics at the University of Maryland.

Findings {| 6, 508 F.Supp. at 695.

10a

RACE

DATE COEFFICIENT T-RATIO

1/1/75 — $1,628 4.65

1/1/76 — $1,744 5.37

at 1/1/77 — $1,119 5.15

1/1/78 — $1,934 5.15

10/1/78 — $1,877 4.50

Findings {| 7b, 505 F.Supp. at 696,

The race coefficient measures the salary disparities be-

tween white and black agents when education and prior

experience are held constant. The T-Ratio figures here

correspond to standard deviations of four or five. See

D. BALDUS &. J. COLE, STATISTICAL PROOF OF DISCRIMI-

NATION 297 n. 14 (1980) (hereinafter “D. Baldus & J.

Cole”). Since a standard deviation level higher than

three indicates that the odds are less than one in a

thousand that an observed result could have occurred by

chance, these figures indicate that the odds are far less

than one in a thousand that the observed disparities for

any year could have occurred by chance. A study is gen-

erally considered to be statistically significant when the

odds that the result occurred by chance are at best one

in 20. See D. Baldus & J. Cole, supra, at 297.

Professors Bergmann and Straszheim then ran a sec-

ond regression to measure salary disparities over the same

time frame for agents hired after 1972. They intended

this study to generate some measure of the effects of race

discrimination at DEA after 1972. Title VII applies to |

DEA in this action only as of that date.® Because the |

® Plaintiffs are subject to the statutory limit on the period

of actionable discrimination; under Title VII liability may not

accrue for a period of more than two years before the date

of filing of an administrative complaint with the Equal Em-

ployment Opportunity Commission. 42 U.S.C. § 2000e-5(g).

In this case the actionable period began on July 15, 1972. See

Memorandum Opinion, February 1'7, 1982, at 3 n.2, JA 114,

116 n. 2. Although not formally created until 1973, DEA was

at its creation a consolidation of other federal agencies en-

|

lla

first regression measured disparities in the salaries of all

black agents, including those hired before 1972, the race

coefficient in that study may have reflected disparities

resulting from the continuing effects of discrimination

that occurred prior to 1972, rather than actionable post-

1972 discrimination. This second regression generated

the following results:

RACE

DATE COEFFICIENT T-RATIO

1/1/75 —$ 378 84

1/1/76 — $1,864 2.54

1/1/77 — $1,119 3.18

1/1/78 —$ 866 2.07

10/1/78 — $1,026 2.30

Findings {| 7d, 508 F.Supp. at 696.

Again a significant salary disparity between agents

with comparable education and experience was revealed.

The T-Ratios indicate that for every year, save 1975, the

possibility that the result could have occurred by chance

was at most one in 20. Though these figures are not as

high a level of significance as were those of the first

regression, they still meet the generally accepted test for

statistical significance. The second regression, moreover,

tends to understate the amount of post-1972 discrimina-

tion at DEA. Because the post-1972 study measures dis-

crimination among newer agents, the study focuses on

the speed with which the new recruits make their way

through the lower levels of DEA. Promotions at these

levels are relatively automatic, and discrimination thus

has less opportunity to work its effects. Discrimination

will most adversely affect older agents contending for

upper level positions; promotion decisions at these levels

incorporate far more discretionary elements and leave

more room for bias. See Part I-A supra. The study does

not measure any post-1972 discrimination against those

hired before 1972. Since these agents would have been

gaged in drug enforcement efforts, and agents serving these

agencies became DEA agents.

i

12a

the ones contending for the upper level positions during

the time frame studied, they would have been the ones

on whom discrimination would have been most likely to

operate. The problem is particularly severe with respect

to the 1975 race coefficient. Almost half of those studied

to obtain this figure were hired in 1974. Findings { 7c,

508 F.Supp. at 696. Since they were in their first year

at the time of the study, they would not yet have been

eligible for a grade promotion.

Having uncovered evidence of significant discrimina-

tion in salary levels, plaintiffs’ experts undertook a more

exacting inquiry into DEA’s employment practices to

pinpoint where discrimination was taking place. They

first examined DEA’s initial grade assignment practices.

Through regression analyses they determined at a suffi-

cient level of statistical significance that blacks were 16

percent less likely than comparably qualified whites to

have been hired at GS-9 rather than GS-7. For those

hired after 1972, blacks were 12 percent less likely to be

hired at GS-9. Findings { 9, 508 F.Supp. at 698-699. The

experts then evaluated work assignments, supervisory

evaluations, and discipline. In all three categories sta-

tistical analysis revealed significant levels of discrimina-

tion against black agents. Findings 112, 14, 15, 508

F.Supp. at 698-700. Finally, plaintiffs’ experts studied

promotions at DEA. Promotions up to the GS-11 level

were found to be relatively automatic. The promotion

rate from GS-11 to GS-12 was 70 percent for blacks and

82 percent for whites. This differential met generally

accepted levels of statistical significance. Differentials in

promotion rates for positions above GS-12 were also

found, but—largely because of the small sample size—

these differentials did not achieve statistical significance

at generally accepted levels. Findings f 16, 508 F.Supp.

at 701-702. .

To buttress the statistical proof plaintiffs introduced

anecdotal testimony of discrimination. This evidence con-

sisted of accounts by several black agents of perceived

13a

discrimination against them in initial grade assignments,

work assignments, supervisory evaluations, and discipline.

These agents also testified about their general perceptions

of racial hostility at DEA.

2. Defendant DEA’s case. DEA responded to plain-

tiffs’ case in several ways. The rebuttal consisted of

expert testimony attacking the methodological integrity

and explanatory value of plaintiffs’ statistics, alternative

statistical analyses tending to show an absence of dis-

crimination, testimonial evidence concerning DEA’s equal

employment opportunity programs, and cross-examination

of plaintiffs’ anecdotal accounts of individual discrimina-

tion.

DEA’s first expert was Dr. J. Wanzer Drane, an as-

sociate professor of statistics at Southern Methodist Uni-

versity. In his testimony he attacked the methodology of

plaintiffs’ statistical analyses. He asserted that plaintiffs

had failed in their analysis to account for the relevant

explanatory variable of prior law enforcement experi-

ence, and that the explanatory power of plaintiffs’ salary

studies (the R? and the T-Ratio) was too low. He also

presented a more generalized critique of the suitability

of the regression methodology for measurement of dis-

crimination in the present situation. Findings { 7f-n,

508 F.Supp. at 696-697; see Trial Transcript (Tr.) 1850-

1871; brief for appellants at 36-38.

To supplement this critique DEA offered an alternative

statistical analysis that tended to show an absence of dis-

crimination. This study—prepared by Dr. B.C. Spradlin,

a consultant—was not a regression but an alternative

statistical methodology known as cohort analysis. Under

this approach all employees who start together at the

same level are surveyed over the course of an observa-

tion period and their comparative progress in salary and

promotion is evaluated. Evaluating promotion and salary

disparities among DEA agents who started at the same

year and grade level, Dr. Spradlin’s cohort analysis sug-

gested significant discrimination in four of 15 groups.

l4a

These four groups were broken into subgroups. Discrimi-

nation was found in two of the subgroups. DEA then

examined the personnel files of those in the subgroups

showing discrimination and found that three individuals

had been misclassified. When these three were properly

classified, the study showed no significant discrimination.

Findings { 8, 508 F.Supp. at 697-698; see Tr. at 1909-

1913.

Testimonial evidence buttressed DEA’s statistical re-

buttal. DEA presented extensive general testimony on its

efforts to establish equal opportunity programs and im-

plement equal opportunity goals at the agency. Through

cross-examination of plaintiffs’ witnesses, DEA also

sought to rebut every particular anecdotal account of

discrimination.

C. The District Court Decision

1. The liability determination. Judge Robinson held

that DEA had discriminated against black special agents

in violation of Title VII across a range of employment

practices. The court found that the salary differentials

between white and black agents were a result of race

discrimination, and that DEA had discriminated against

black agents in grade-at-entry, work assignments, super-

visory evaluations, and promotions. 508 F.Supp. at 712-.

715. The finding of discrimination in promotions ex-

tended to promotions above the GS-12 level, even though

the court did not credit plaintiffs’ statistical evidence of

discrimination at that level because the statistics had not

achieved acceptable levels of statistical significance. The

court based its finding of discrimination at the upper

levels on inferences from proven discrimination at the

immediately preceding levels and discrimination in the

factors that bear most directly on promotions (work

assignments, evaluations, and discipline). 508 F.Supp. at

714-715.

15a

To make these determinations the District Court cred-

ited the bulk of plaintiffs’ statistical evidence *® and re-

jected both DEA’s critique of this evidence and DEA’s

alternative statistics. In particular, the court rejected

DEA’s claims that plaintiffs’ statistics did not possess

sufficient explanatory power, that the failure to account

for prior law enforcement experience skewed the studies,

and the DEA’s cohort analysis rebutted plaintiffs’ show-

ing of discrimination. As to the alleged failure to ac-

count for law enforcement experience, the court held that

DEA’s objection was “speculative and incapable of re-

butting plaintiffs’ statistical showing.” Jd. at 712. More-

over, the court found that the “cohort analysis was ir-

reparably flawed,” primarily because the methodology

focused on groups too small to generate statistically sig-

nificant evidence of discrimination. Jd. at 698, 712.

Since DEA had hinged its defense on this effort to rebut

plaintiffs’ showing of race-related disparities, the District

Court’s findings were dispositive against DEA. —

2. The Remedies Determination. Having found perva-

sive discrimination at DEA, the District Court-—in a sep-

arate remedial proceeding—set out to formulate an ap-

propriate remedial plan.1 The essential elements of the

plan were class-wide backpay, promotion goals and time-

tables, and class-wide frontpay. See Memorandum Opin-

zon (Mem.Op.) and Order (Remedial Order), February

17, 1982, JA 114.

Class-wide Backpay. Rather than order individualized

relief hearings, sec Int’l Brhd of Teamsters v. United

10 The court did, however, refuse to credit most of plain-

tiffs’ anecdotal accounts of specific instances of discrimination.

Findings {] 51d, 508 F.Supp. at 710.

1 DEA sought at the remedial hearing to introduce its

own regression analyses. These regressions purportedly

showed an absence of race-related disparity at DEA. The

District Court rejected this proffered evidence of DEA’s non-

liability as untimely. See Memorandum Opinion, supra note

9, at 3, JA 116.

16a

States, 431 U.S. 324, 361-362, 97 S.Ct. 1848, 1867-1868,

52 L.Ed.2d 396 (1977), the District Court ordered a

class-wide award of backpay for members of the plaintiff

class. For successive one-year periods beginning in July

1972, a class-wide backpay pool figure would be calcu-

lated. The calculations would derive from plaintiffs’ first

salary regression study (which measured disparities among

all agents including those hired before 1972). For every

year for which figures were available—1975 to 1979—the

class-wide pool figure would be the race coefficient multi-

plied by the number of black special agents. For the

years before 1975 and after 1979 the race coefficient

would be derived by extrapolating backward and forward

from the available figures, and this extrapolated coeffi-

cient would be multiplied by the number of black agents.

The annual backpay pool would be distributed evenly

among eligible black agents. Only agents above the GS-9

Jevel during the year in question were made eligible. The

court excluded agents at GS-7 and GS-9 because most dis-

crimination was found to occur at the higher levels of

DEA. The court did, however, permit individual plain-

tiffs to come forward and seek backpay for discrimina-

tion suffered in initial grade assignment (viz. assignment

to GS-7 instead of GS-9). Any such individual awards

would be subtracted from the class-wide pool in order to

prevent double liability. Mem.Op. at 3, JA 116.

Promotion Goals and Timetables. Finding discrimina-

tion at the upper levels of DEA, the District Court or-

dered remedial promotion goals and timetables. Since

black agents made up at least 10 percent of agents at

every level through GS-12 the court held that a 10 per-

cent goal was appropriate for all Jevels above GS-12.

Mem.Op. at 4, JA 117. To meet this goal the court or-

dered DEA to promote one black agent for every two

white agents until 10 percent black representation had

been met at GS-13 and above (or until five years had

passed). Id.

17a

Class-wide Frontpay. To compensate black agents await-

ing promotion under the goals and timetables plan the

court established a class-wide frontpay formula. Front-

pay pool calculations were also based on extrapolations

from the salary regression, but the pool was to be ad-

justed to reflect progress DEA had made under the pro-

motions goals and timetables. Remedial Order at 9-12,

JA 126-129. The pool was to be distributed to all black

agents at GS-12 for at least two years and all black

agents above GS-12.

3. Other issues. In the course of the proceedings two

other issues arose. Plaintiffs sought and were refused an

award of prejudgment interest on the backpay awards.

See Mem.Op. at 3 n.4, JA 116 n.4. Also, during the time

between the liability and remedial determinations the

court issued a preliminary injunction barring demotion

or transfer of black special agent Carl Jackson. See

Memorandum Opinion and Order of May 5, 1981, JA 101.

Shortly after Jackson had testified at trial in this case

he became the target of harassment and eventually of

adverse employment actions including demotion and

transfer. The District Court concluded that there was a

high likelihood that these actions were in retaliation for

Jackson’s testimony, and therefore preliminarily enjoined

Jackson’s demotion or transfer.

D. The Appeal.

DEA appeals several aspects of both the liability and

the remedial determinations, and also challenges the

Jackson injunction. Plaintiffs cross-appeal from the de-

nial of prejudgment interest. We will consider separately

DEA’s challenges to the liability decision, the remedial

decision, and the Jackson injunction. We will then con-

sider plaintiffs’ claim for prejudgment interest.

18a

II. THE LIABILITY DETERMINATION

A. Framework for Analysis

A plaintiff in a Title VII action can prove liability

under two theories: disparate treatment or disparate im-

pact. In a disparate treatment claim a plaintiff seeks to

prove that an employer intentionally “treats some people

less favorably than others because of their race, color,

religion, sex, or national origin.” Teamsters, supra, 431

U.S. at 335 n.15, 97 S.Ct. at 1854 n.15. Proof of illicit

motive is essential, but, especially in cases alleging class-

wide discrimination, illicit motive may be inferred from

a sufficient showing of disparity between members of the

plaintiff class and comparably qualified members of the

majority group. Jd. Such class-wide allegations of dis-

crimination are commonly referred to as “pattern or

practice” cases. In Teamsters, supra, the Supreme Court

noted that “the question whether the company engaged

in a pattern or practice of discriminatory [action] * * *

involves controlling legal principles that are relatively

clear,” id. at 334-335, 97 S.Ct. at 1854, and went on to

characterize the case as one of disparate treatment. A

claim that the sum of an employer’s practices results in

less favorable treatment of members of the plaintiff class

than of comparably qualified whites or males may justify

an inference that “discrimination was the company’s

standard operating procedure—the regular rather than

the unusual practice.” Jd. at 336, 97 S.Ct. at 1855. This

is because a disparity in treaiment of the comparably

qualified is “the expected result of a regularly followed

discriminatory policy.” Jd. at 361 n.46, 97 S.Ct. at 1867

n.46.

In a disparate impact claim a plaintiff challenges “em-

ployment practices that are facially neutral in their

treatment of different groups but that in fact fall more

harshly on one group than another and cannot be justi-

fied by business necessity.” Jd. at 386 n.15, 97 S.Ct. at

19a

1855 n.15. To prevail on a disparite impact theory a

plaintiff need not prove illicit motive; “Congress directed

the thrust of the Act to the consequences of em;loyment

practices, not simply the motivation.” Griggs v. Duke

Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.

2d 158 (1971) (emphasis in original). This disparate

impact concept may be relevant in two ways to a case

involving allegations of class-wide discrimination. First,

in addition to bringing a pattern or practice disparate

treatment claim, plaintiffs may well challenge the dis-

parate impact of specific employment practices and thus

force the employer to prove the job-relatedness of those

practices. See Griggs, supra, 401 U.S. at 432, 91 S.Ct. at

854. Second, plaintiffs’ pattern or practice disparate

treatment challenge to the employment system as a whole

may also implicate disparate impact analysis. A pattern

or practice disparate treatment case shares with a typ-

ical disparate impact suit the allegation that an em-

ployer’s practices have had a systemic adverse effect on

members of the plaintiff class. See Teamsters, supra, 431

U.S. at 336 n.15, 97 S.Ct. at 1855 n.15 (“Either theory

may, of course, be applied to a particular set of facts.”’) ;

Vuyanich v. Republic Natl Bank of Dallas (Vuyanich

IT), 521 F.Supp. 656, 663 (N.D. Tex. 1981), vacated on

other grounds, 723 F.2d 1195 (5th Cir. 1984). Though

a plaintiff class will initially seek to show a disparity

among the comparably qualified in order to prove dis-

parate treatment, an employer may seek to defend by

pointing to a specific, arguably nondiscriminatory, em-

ployment practice as the cause of the observed disparity.

In such situations the defendant may appropriately be

required to demonstrate the business necessity of the

practices causing the disparity because the court will

have before it all the elements of a traditional disparate

impact claim. See Part II-A-2 infra.

Proceeding under the disparate treatment theory,

plaintiffs in this case allege a pattern or practice of il-

legal discrimination at DEA. Proceeding under the dis-

20a

parate impact theory, plaintiffs also challenge a number

of DEA’s specific employment practices—initial grade

assignments, work assignments, supervisory evaluations,

discipline, and promotions decisions. Thus plaintiffs chal-

lenge both the entirety of DEA’s employment system and

several specific components of that system. To establish

a framework for analysis of these allegations, we will

first examine the sequence and allocation of proof in a

class action alleging a pattern or practice of disparate

treatment and alleging disparate impact with respect to

specific employment practices. We will then locate within

that framework the approach that the parties have taken

in joining the liability issue in this case.

1. Sequence and allocation of proof. Functionally the

disparate treatment and disparate impact models have

different aims, and the proof sequences associated with

each reflect these differences. Disparate treatment aims

at discovery and elimination of intentional discrimina-

tion. On the disparate treatment claim the “ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains

at all times with the plaintiff.” Texas Dep’t of Commu-

nity Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct.

1089, 1093, 67 L.Ed.2d 207 (1981). Since the plaintiff

class will likely try to meet this ultimate burden by prov-

ing a disparity sufficient to permit an inference of dis-

crimination, plaintiff must carry the burden of persua-

sion as to the existence of the disparity. Disparate im-

pact aims at discovery and elimination of facially neutral

employment practices that adversely affect minorities and

cannot be justified as necessary to an employer’s busi-

ness. On the disparate impact claim plaintiffs bear the

burden of persuasion as to the existence of a race-related

disparity caused by an employment practice, but, once

plaintiffs have made this showing, the employer bears the

burden of persuasion as to the business necessity of the

practice. See Vuyanich II, supra, 521 F.Supp. at 660.

noah caseenresansesescaane

21a

Though allocations of proof differ in this crucial way,

an important point of convergence exists in class actions

like the present case. Both pattern or practice disparate

treatment claims and disparate impact claims are attacks

on the systemic results of employment practices. The

pattern or practice claim amounts to an allegation that

an observed disparity is the systemic result of an em-

ployer’s intentionally discriminatory practices. The dis-

parate impact claim amounts to an allegation that an

observed disparity is the systemic result of a specific em-

ployment practice that cannot be justified as necessary

to the employer’s business. Consequently the proof of

each claim will involve a showing of disparity between

the minority and majority groups in an employer’s work-

force. These two factors—the difference in ultimate bur-

den of proof and the similarity in proof of disparity—

must inform our understanding of the intermediate bur-

dens that the parties to such an action face.”

A plaintiff class seeking to show a pattern or practice

of disparate treatment must “carry the initial burden of

offering evidence adequate to create an inference that’

employment decisions were “based on a discriminatory

12 Typically, Title VII litigation proceeds through a more

or less well-defined sequence of shifting intermediate burdens

of proof. See Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 253-254, 101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d

207 (1981) (defining sequence for non-class action disparate

treatment claim) ; Albemarle Paper Co. v. Moody, 422 U.S.

405, 425, 95 S.Ct. 2862, 2375, 45 L.Ed.2d 280 (1975) (de-

fining sequence for disparate impact claim). Though these

proof sequences are designed to sharpen the inquiry into

alleged illegal discrimination, they can confuse more than

clarify when they are applied inflexibly. See Int’l Brhd of

Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843,

1866, 52 L.Ed.2d 2“%* (1977). Nowhere is this more true than

in pattern or practice cases such as the one now before this

court. These cases do not fit comfortably into the standard

proof sequences. See note 14 infra.

22a

criterion illegal under the Act.” Teamsters, supra, 431

U.S. at 358, 97 S.Ct. at 1866. This usually means provid-

ing evidence—often in statistical form—of a disparity

in the position of members of the plaintiff class and com-

parably qualified whites. Similarly, on the disparate im-

pact challenges to specific employment practices the plain-

tiff class must present evidence that the practices have a

disproportionately adverse eifect on the plaintiffs. How

far this prima facie showing will carry the plaintiff to-

ward its ultimate burden of persuasion depends on both

the strength of the plaintiffs’ evidence and the nature of

the defendant’s response.

A defendant must tailor its response to the nature of

the plaintiff’s proof. Teamsters, supra, 431 U.S. at 360

n.46, 97 S.Ct. at 1867 n.46. In general, though, the re-

sponse will follow two paths. The employer can endeavor

to refute the plaintiffs’ claim that a disparity exists.

Alternatively, the employer can offer an explanatory de-

fense; such a defense amounts to a claim that an ob-

served disparity has not resulted from illegal discrimina-

tion. The nature of these defenses, and the burdens asso-

ciated with them, differ in important ways.

a. Challenges to the plaintiffs’ proof. Challenging the

accuracy or significance of plaintiffs’ proof, a defendant

seeks to show that the alleged disparity on which plain-

tiffs’ case is bottomed does not exist. Such a defense can

of course be raised against both a disparate treatment

and a disparate impact claim. Typically the challenge

will focus on the integrity of the plaintiffs’ statistical

methodology and the significance of the results shown.

Often the defendant will supplement the critique with al-

ternative statistical analyses tending to refute the plain-

tiffs’ evidence of disparity. The defendant need not carry

the burden of persuasion as to the nonexistence of a dis-

parity; on the disparate treatment claim “the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains

at all times with the plaintiff,” Burdine, supra, 450 U.S.

23a

at 253, 101 S.Ct. at 1093, and on the disparate impact

claims the plaintiffs must persuade the trier of fact that

a disparity exists.

The defendant’s rebuttal must, however, at least raise

a genuine issue of material fact concerning the accuracy

of the picture painted by the plaintiffs’ statistics. And

introduction of evidence sufficient to raise a genuine is-

sue of material fact does not necessarily vindicate the de-

fendant. Burdine, supra, 450 U.S. at 254-255, 101 S.Ct.

at 1094. Rather, the strength of the evidence the defend-

ant must produce to prevent the plaintiff from carrying

the burden of persuasion as to disparity depends, as in

any case, on the strength of the plaintiffs’ proof. “[T]he

defendant’s evidence must do more than merely raise an

issue of fact. * * * It must cast sufficient doubt on the

plaintiff’s proof to cause the trier of fact to conclude that

the plaintiff has not proved discrimination by a prepon-

derance of the evidence.” Vuyanich II, supra, 521 F.

Supp. at 663.

b. The explanatory defense. Alternatively, ‘a defend-

ant can attempt to show that any observed disparities be-

tween plaintiffs and the majority group did not result

from discrimination violative of Title VII. The require-

ments of such a rebuttal will vary according to the type

of claim the defendant seeks to rebut. To rebut a dis-

parate impact challenge to a specific employment prac-

tice causing a disparity the employer must prove the

business necessity of the practice. See Albemarle Paper

Co., supra, 422 U.S. at 425, 95 S.Ct. at 2375. To rebut a

disparate treatment challenge the employer can argue

that the observed disparity between the plaintiff class

and the majority group does not support an inference of

intentional discrimination because there is a legitimate,

nondiscriminatory explanation for the disparity. For ex-

ample, the defendant might come forward with some ad-

ditional job qualification—not sufficiently perceptible to

plaintiffs to have permitted them to account for it in

24a

their initial proof—that the plaintiff class lacks, thus ex-

plaining the disparity.

The nature of the burden that the defendant bears on

such a defense is not entirely free of doubt. The defend-

ant must at least make a “clear and reasonably specific

showing,” based on admissible evidence, that the alleged

nondiscriminatory explanation in fact explains the dis-

parity. Burdine, supra, 450 U.S. at 253-255, 101 S.Ct.

at 1093-1095. In the context of an individual plaintiff’s

claim of disparate treatment, the Court in Burdine sug-

gested that a defendant need do no more than make such

an articulation. Jd. at 253-254, 101 S.Ct. at 1093-1095.

Though the principles on which Burdine is based are

fully applicable to pattern or practice cases, the specific

definition of the rebuttal burden on an employer in an

individual plaintiff’s disparate treatment case should not

be unthinkingly applied to class actions such as the pres-

ent case.

In an individual case a defendant’s nondiscriminatory

explanation serves only to undermine the inference of

discriminatory intent arising from plaintiff’s proof.

Since plaintiff bears the burden of persuasion on the

issue of intentional discrimination, the defendant should

not have to persuade the trier of fact that plaintiff was

treated less well for a2 nondiscriminatory reason. The

defendant is required only to present evidence sufficient

to permit the trier of fact legitimately to decline to

infer discrimination from the plaintiff’s proof. In the

context of an individual’s suit, the bare articulation of

a legitimate nondiscriminatory explanation generally

suffices to undermine a plaintiff’s initial proof in this

way because the plaintiff’s prima facie case will typically

consist of the low-threshold showing of McDonnell Doug-

las Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973).

13 To make out a prima facie case under McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 801-802, 93 S.Ct. 1817, 1823-

25a

When a defendant in a pattern or practice class action

offers such an explanation, the circumstances differ in

two crucial ways. First, to make an initial showing of

disparate treatment in such cases the plaintiff class will

typically have presented statistical evidence showing per-

vasive disparities and eliminating most, if not all, poten-

tial nondiscriminatory explanations for the observed dis-

parities. See Vuyanich II, supra, 521 F.Supp. at 663;

Part II-A-1 supra. Though the employer is not required

to meet a burden of persuasion in rebutting the disparate

treatment claim, the nondiscriminatory explanation must

cast sufficient doubt on the plaintiffs’ proof to permit. the

trier of fact legitimately to decline to draw an infer-

ence of discrimination from that proof. The bare articu-

lation of a nondiscriminatory explanation, while sufficient

to rebut an individual plaintiff’s low-threshold McDonnell-

Douglas showing, generally will not suffice as a rebuttal

to a typical class-wide showing of pervasive discrimina-

tion. Burdine made this much clear:

In saying that the presumption [of discrimination]

drops from the case, we do not imply that the trier

1824, 36 L.Ed.2d 668 (1973), an individual plaintiff need only

show that he or she: (1) is a member of a protected group;

(2) applied for the position and was qualified; (3) was re-

jected; and (4) the job remained open. 411 U.S. at 802, 93

S.Ct. at 1824. Presentation of a clear and reasonably specific

explanation of the apparent disparity in treatment, if sup-

ported by admissible evidence, generally suffices to rebut the

plaintiff’s minimal initial showing. In such cases the burden

appropriately shifts back to plaintiff to show that the em-

ployer’s nondiscriminatory explanation is pretextual. Bur-

dine, supra note 12, 450 U.S. at 253-254, 101 S.Ct. at 1093-

1094.

144This proof will seek to show a disparity between the

plaintiff class and the majority group, demonstrate that race

explains the disparity by eliminating other possible explana-

tions, and make these showings at high levels of statistical

significance.

26a

of fact no longer may consider evidence previously

introduced by the plaintiff to establish a prima facie

case. A satisfactory explanation by the defendant

destroys the legally mandatory inference of discrimi-

nation arising from the plaintiff's initial evidence.

Nonetheless, this evidence and inferences properly

drawn therefrom may be considered by the trier of

fact on the issue of whether the defendant’s explana-

tion is pretextual. Indeed, there may be seme cases

where the plaintiffs initial evidence, combined with

effective cross-examination of the defendant, will suf-

fice to discredit the defendant’s explanation.

450 U.S. at 255 n.10, 101 S.Ct. at 1095 n. 10 (emphasis

added). The typical pattern or practice case is closely

analogous to the situation the Court envisions in the last

sentence of the quoted passage: the plaintiffs’ initial

offer of evidence will have been so strong that the bare

articulation of a nondiscriminatory explanation will not

suffice to rebut it. Thus in both individual and class

action contexts the defendant faces the same rebuttal

burden; it must present sufficient evidence to permit the

trier of fact to decline to draw the inference of discrimi-

nation from the plaintiffs’ proof. But in the class action

pattern or practice case the strength of the evidence

sufficient to meet this rebuttal burden will typically need

to be much higher than the strength of the evidence

sufficient to rebut an individual plaintiff’s low-threshold

McDonnell Douglas showing.*

15 Such class actions often can be viewed as collapsing the

prima facie and pretext stages of a suit involving an individuai

plaintiff. See McKenzie v. Sawyer, 684 F.2d 62, 71 (D.C. Cir.

1982) ; Vuyanich v. Republic Nat’l Bank of Dallas, 521 F.Supp.

656, 662 (N.D. Tex. 1981), vacated on other grounds, 723

F.2d 1195 (5th Cir. 1984). We do not mean to suggest, how-

ever, that plaintiff must rely on its initial proof. The plaintiff

is of course free to—and if the defendant’s rebuttal is suffi-

ciently strong may have to—introduce evidence to discredit

the rebuttal.

27a

Second, the employer’s effort to rebut the pattern or

practice claim by articulating a legitimate nondiscrimina-

tory explanation may have the effect of putting before

the court all the elements of a traditional disparate im-

pact case. By its explanation of an observed disparity

the employer will typically pinpoint an employment prac-

tice (or practices) having a disparate impact on a pro-

tected class. And to rebut plaintiffs’ case the employer

will typically be required to introduce evidence showing

that the employment practice in fact caused the observed

disparity. See Burdine, supra, 450 U.S. at 258, 101 S.Ct.

at 1096 (“defendant will normally attempt to prove the

factual basis for its explanation”). In this situation,

between the plaintiffs’ prima facie showing of disparity

and the defendant’s rebuttal explanation of the disparity,

the essential elements of a disparate impact case will

have been placed before the trier of fact. Such a case

is ripe for resolution using disparate impact analysis.’

Though the plaintiffs in a disparate treatment case bear

the burden of persuasion as to the existence of a dis-

parity, the defendant bears the burden of proving the

business necessity of the practices causing the disparity.”

Albemarle Paper Co., supra, 422 U.S. at 425, 95 S.Ct. at

2375. Thus when an employer defends a disparate treat-

ment challenge by claiming that a specific employment

16 Not every nondiscriminatory explanation will implicate

disparate impact analysis. For example, an employer might

seek to show that an observed disparity resulted from dis-

crimination prior to the date Title VII applied to the em-

ployer. But when the employer’s explanation amounts to an

articulation of a specific employment practice, disparate im-

pact analysis should apply.

17 Burdine in no way altered this traditional allocation of

burdens. The Court stated that it “recognized that the factual

issues, and therefore the character of the evidence presented,

differ when the plaintiff claims that a facially neutral em-

ployment policy has a discriminatory impact on protected

classes.” 450 U.S. at 252 n. 5, 101 S.Ct. at 1093 n. 5.

28a

practice causes the observed disparity, and this defense

sufficiently rebuts the plaintiffs’ initial case of disparate

treatment, the defendant should at this point face a

burden of proving the business necessity of the practice.

Accord Vuyanich II, supra, 521 F.Supp. at 662-663; see

Bartholet, Application of Title VII to Jobs in High

Places, 95 HARV.L.REV. 945, 1004-1006 (1982),

The only difference between this situation and the tra-

ditional disparate impact case is that in the latter the

plaintiff articulates the employment practice causing the

adverse impact and forces the employer to defend it,

while in the former the employer articulates the employ-

ment practice and must then go on to defend it. Accord

Vuyanich II, supra, 521 F.Supp. at 663. Some case law

from other circuits has expressed a reluctance to apply

disparate impact analysis in this situation. Two con-

cerns fuel this reluctance: (1) the perceived unfairness

of placing on the defendant the dual burden of articulat-

ing which ~f its employment practices caused the adverse

impact at issue and proving the business necessity of the

practice, see, e.g., Pouncy v. Prudential Ins. Co. of Amer-

ica, 668 F.2d 795, 800 (5th Cir. 1982) (plaintiff required

to point to specific employment practice causing adverse

impact “in order to allocate fairly the parties’ respective

burdens of proof at trial’); and (2) the risk that an

employer will be forced to justify the entire range of its

employment practices when a plaintiff shows only that a

disparity exists, see Rivera v. City of Wichita Falls, 665

F.2d 531, 539 (5th Cir. 1982). These concerns are, how-

ever, unpersuasive and difficult to harmonize with the

purposes of Title VII.

As a practical matter, this issue arises in a context

that renders such concerns largely irrelevant. An em-

ployer will face the justificatory burden only after a

plaintiff class has shown a disparity in the positions of

members of the class and the majority group who appear

to be comparably qualified; if plaintiffs fail to make their

prima facie case, the employer never faces this justifica-

|

|

29a

tory burden. But if the plaintiffs have made their prima

facie case, the employer, to avoid liability under the dis-

parate treatment theory, will have to advance some non-

discriminatory explanation for the disparity. An em-

ployer’s claim that it cannot isolate the cause of the

disparity will be unlikely to deflect the force of the

inference of discrimination from plaintiffs’ proof. The

defendant will in all likelihood point to a specific job

qualification or performance/evaluation rating as the

explanation for the observed disparity. Thus application

of disparate impact in this situation will not, the fears

of the Pouncy court notwithstanding, place on the em-

ployer any additional burden of articulation; to rebut

the disparate treatment claim the employer will have had

to articulate which employment practices cause an ob-

served disparity. Nor will the employer be forced to

justify all of its employment practices. The employer

will be required to show the job relatedness of only the

practice or practices identified as the cause of the

disparity.

The concerns of Pouncy and Rivera are no more com-

pelling on the theoretical level. The employer will possess

knowledge far superior to that of the plaintiff as to

precisely how its employment practices affect employees.

This fact, as the Fifth Circuit noted in Powncy, 668 F.2d

at 801, traditionally justifies placing on the defendant

the burden of proving the business necessity of an em-

ployment practice. So too it justifies the lesser burden

of requiring the employer to articulate which of its em-

ployment practices adversely affect minorities.% A rule

18 The Supreme Court has recognized that retroactive relief

for victims of Title VII violations serves the important pur-

pose of removing barriers to equal opportunity because such

relief “provides the spur or catalyst which causes employers

and unions to self-examine and to self-evaluate their employ-

ment practices and to endeavor to eliminate the last vestiges”

of discriminatory barriers. Albermarle Paper Co. v. Moody,

422 U.S. 405, 417-418, 95 S.Ct. 2862, 2371-2372, 45 L.Ed.2d

30a

placing this justificatory burden on the employer ad-

vances the purposes of Title VII far better than would

the contrary result. “What is required by Congress is

the removal of artificial, arbitrary, and unnecessary bar-

riers to employment when the barriers operate invidi-

ously to discriminate on the basis of racial or other

impermissible classification.” Griggs, supra, 401 U.S. at

430-431, 91 S.Ct. at 853; accord Connecticut v. Teal, 457

U.S. 440, 451, 102 S.Ct. 2525, 2533, 73 L.Ed.2d 130

(1982) (“Title VII strives to achieve equality of oppor-

tunity by rooting out ‘artificial, arbitrary, and unneces-

sary’ employer-created barriers to professional develop-

ment’); Teamsters, supra, 431 U.S. at 364, 97 S.Ct. at

1869 (“a primary objective of Title VII is prophylactics

to achieve equal employment. opportunity and to remove

barriers that have operated to favor white male employ-

ees over other employees”) ; Albemarle Paper Co., supra,

422 US. at 417, 95 S.Ct. at 2371. This purpose is not

well served by a requirement that the plaintiff in every

case pinpoint at the outset the employment practices that

cause an observed disparity between those who appear to

be comparably qualified. Such a requirement in effect

permits challenges only to readily perceptible barriers;

it allows subtle barriers to continue to work their dis-

criminatory effects, and thereby thwarts the crucial na-

tional purpose that Congress sought to effectuate in Title

VII. “It is abundantly clear that Title VII tolerates no

280 (1975); accord Teamsters, supra note 12, 4381 U.S. at

364, 97 S.Ct. at 1869. Similarly, plaintiffs’ prima facie dis-

parate treatment case spurs an employer’s self-evaluation to

determine which of its employment practices cause the ob-

served disparity. Once these employment practices with dif-

ferential 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 have

rid ourselves of discrimination in its subtle as well as its

crass aspect.

3la

discrimination, subtle or otherwise.” McDonnell Douglas

Corp., supra, 411 U.S. at 801, 93 S.Ct. at 1824. Thus

when unnecessary employer-created barriers have been

brought into the open through adjudication of a pattern

or practice disparate treatment claim, these barriers

should be evaluated under the disparate impact theory,

as Congress intended them to be.”

2. Locating this controversy within the analytical

framework. Plaintiffs, utilizing disparate treatment

analysis, challenge the entirety of DEA’s employment

system, and, utilizing disparate impact analysis, chal-

lenge several particular employment practices in that

system (DEA’s procedures for initial grade assignments,

discipline, supervisory evaluations, and promotion). In

their disparate impact claims plaintiffs seek to show that

these specific practices have an adverse effect on black

agents, and thereby to force DEA to prove the business

necessity of the challenged practices. In their disparate

treatment claim plaintiffs seek to show that they are

treated less well than comparably qualified white agents.

Evidence of overall salary disparities, buttressed by evi-

dence of the specific places in DEA’s employment system

where discrimination occurs, supports this challenge.

Whether this overall challenge will also raise disparate

impact issues beyond those already raised by plaintiffs’

challenges to several specific DEA employment practices

depends on the nature of DEA’s defense. See Part II-A-

1-b supra.

19 We note further that application of disparate impact

analysis when appropriate in a pattern or practice case will

not result in disparate treatment analysis swallowing up the

whole of disparate impact analysis. Disparate impact will

apply in the pattern or practice case only after plaintiffs have

made a sufficient initia! showing of disparity between groups

that appear to be comparably qualified, and after it has been

decided that the employer’s explanation rebuts the disparate

treatment claim.

32a

DEA has channelled the bulk of its efforts into an

attempt to show that plaintiffs’ proof of disparity is

either inaccurate or insignificant. DEA has bifurcated

this attack into separate claims that plaintiffs’ statistical

proof is deficient and that DEA’s proof in any event re-

futed plaintiffs’ attempt to show race-related disparities.

Though made separately, both arguments go to the ques-

tion whether plaintiffs have met their burden of persua-

sion as to the existence of race-related disparities.

Subsumed in DEA’s rebuttal are several specific legal

issues. DEA claims that plaintiffs’ initial case is defi-

cient as a matter of law for two reasons. First, the

regression analyses on which plaintiffs’ case is bottomed

do not account for all “minimum objective qualifications”

for the special agent positions at issue. See Davis v.

Califano, 613 F.2d 957, 964 (D.C. Cir. 1979). Second,

because plaintiffs failed to produce any creditable anec-

dotal evidence of specific instances of discrimination,

their statistical proof was required to, and failed to, meet

the enhanced evidentiary threshold of showing “gross

disparities” in treatment. See Hazelwood School District

v. United States, 433 U.S. 299, 307-308, 97 S.Ct. 2736.

2741-2742, 53 L.Ed.2d 768 (1977). Even if plaintiffs’

proof is not insufficient as a matter of law for these

reasons, DEA claims, that proof would have been found

unable to stand up to DEA’s evidence had the trial court

properly evaluated that evidence. One purported error

DEA cites is the trial court’s misstep in placing on DEA

a burden of persuasion of nondiscrimination, instead of

the proper burden of coming forward with credible re-

buttal evidence. See Burdine, supra, 450 U.S. at 248, 101

S.Ct. at 1089. Another claim of error involves the trial

court’s purported abuse of discretion in failing to admit

into evidence the alternative regression analyses that

DEA offered at the remedial phase of the proceeding.

DEA also claims that the trial court gave insufficient

weight to its cohort analysis.

33a

Preferring to rely on a direct attack on the evidence

showing race-related disparities, DEA has offered little

in the way of explanation for the observed disparities.

Thus DEA’s defense to both the disparate treatment and

disparate impact allegations in large measure stands or

falls with its arguments as to the nonexistence of the

disparities that plaintiffs have sought to show. One aspect

of DEA’s challenge to plaintiffs’ proof does, however,

amount to an effort to provide a legitimate nondiscrimi-

natory explanation for the observed disparity. DEA

argues that plaintiffs’ statistical analysis will not support

an inference of discrimination vecause the observed dis-

parity was caused by a lack in the plaintiff class of a

particular job qualification. Though DEA makes this

argument in the context of an attack on the legal suffi-

ciency of plaintiffs’ prima facie disparate treatment case,

the claim can also be styled as a possible nondiscrimina-

tory explanation for the disparity, and will be analyzed

as such. To the extent the claim implicates a disparate

impact analysis, see Part II-A-l-b supra, that analysis

will also be undertaken.

B. Analysis of the Liability Issues

For the sake of clarity and congruence with the form

of argument presented to us, we will separate our analy-

sis along the lines suggested by the parties’ arguments.

First we will examine the sufficiency of plaintiffs’ offer

of proof in light of DEA’s attack on the methodology and

results of plaintiffs’ statistical analyses. Then we will

examine the strength of DEA’s evidence, and consider

DEA’s allegations of error. Both lines of inquiry must,

however, lead us toward resolution of the ultimate issue:

In weighing all the evidence, did the trial court correctly

conclude that plaintiffs carried their burden of persua-

sion as to the existence of illegal discrimination at DEA.”

2” The Supreme Court has recently stated: “Where the

defendant has done everything that would be required of him

24a

Also, to the extent DEA’s rebuttal raises issues as to the

business necessity of its employment practices, we will

resolve these issues in accordance with Griggs and its

progeny.

1. The sufficiency of plaintiffs’ initial case. A “gen-

eral principle” of disparate treatment adjudication re-

quires the plaintiff to “carry the initial burden of offer-

ing evidence adequate to create an inference that an

employment decision was based on a discriminatory cri-

terion illegal under the Act.” Teamsters, supra, 431

U.S. at 358, 97 S.Ct. at 1866. Because “[t]he facts nec-

essarily will vary in Title VII cases,” McDonnell Doug-

las Corp. supra, 411 U.S. at 802 n. 18, 98 S.Ct. at 1824

n. 13, a specific test for the sufficiency of a plaintiff’s

initial proof is not possible. Teamsters, supra, 431 U.S.

at 358, 97 S.Ct. at 1866. Rather, a plaintiff’s initial

proof must be measured against the more generalized

functional standard that the Supreme Court has elabo-

rated in Teamsters, supra, 431 U.S. at 358, 97 S.Ct. at

1866; Furnco Construction Corp. v. Waters, 438 U.S.

967, 577, 98 S.Ct. 2948, 2949, 57 L.Ed.2d 957 (1978),

and Burdine, supra, 450 1J.S. at 253-254, 101 S.Ct. at

1093-1094. These cases hold that a sufficient prima facie

case is made out when the plaintiff shows a disparity in

the relative position or treatment of the minority group

and has eliminated “the most common nondiscriminatory

reasons” for the observed disparity. Burdine, supra, 450

U.S. at 253-254, 101 S.Ct. at 1098-1094; accord Furnco,

supra, 438 U.S. at 579-580, 98 S.Ct. at 2951 (A prima

facie case “is simply proof of actions taken by the em-

ployer from which we infer discriminatory animus be-

if the plaintiff had properly made out a prima facie case,

whether the plaintiff really did so is no longer relevant. The

district court has before it all the evidence it needs [to make

the ultimate determination] * * *.” U.S. Postal Service Bd.

of Gov. v. Aikens, 460 U.S. 711, , 103 S.Ct. 1478, 1482, 75

L.Ed.2d 403 (1983). We follow the prescribed analysis in

this case.

-

85a

cause experience has proved that in the absence of any

other explanation it is more likely than not that those

actions were bottomed on impermissible considerations” ).

The present case typifies class actions alleging a pat-

tern or practice of discrimination in that the plaintiffs’

argument is largely bottomed on statistical evidence com-

paring the percentage and distribution of minorities in

the employer’s workforce to the percentage of minorities

in the labor pool from which the employer is able to draw.

To be legally sufficient these statistics must show a dis-

parity of treatment, eliminate the most common nondis-

criminatory explanations of the disparity, and thus per-

mit the inference that, absent other explanation, the dis-

parity more likely than not resulted from illegal discrimi-

nation. Teamsters, supra, 431 U.S. at 368, 97 S.Ct. at

1871.

A pattern or practice case challenges a host of employ-

ment decisions over time; in effect, it challenges an em-

ployment system. The most common nondiscriminatory

explanation for a systemic disparity in treatment is a

lack of qualifications among the minority group members.

A plaintiff’s statistical evidence must therefore focus on

eliminating this nondiscriminatory explanation by show-

ing disparities in treatment between individuals with com-

parable qualifications for the positions at issue. Hazel-

wood School District, supra, 483 U.S. at 308 n. 13, 97

S.Ct. at 2742 n. 13; DeMedina v. Reinhardt, 686 F.2d 997,

1007 (D.C.Cir. 1982) (quoting D. Baldus & J. Cole, su-

pra, at 120).

Once the plaintiffs’ analysis has focused on the proper

groups for comparison, it must yield results that meet

generally accepted standards of statistical significance.

In other words, both the methodology and the explanatory

power of the statistical analysis must be sufficient to per-

mit an inference of discrimination.

a. Methodology: minimum objective qualifications. To

ensure that a plaintiff’s methodology has eliminated the

common nondiscriminatory explanation of a lack of quali-

36a

fications, this circuit has developed a requirement that

statistical evidence of disparities account for the minimum

objective qualifications for the positions at issue. De-

Medina, supra, 686 F.2d at 1003; Valentino, supra, 674

F.2d at 71; Davis v. Califano, supra, 618 F.2d at 964.

This requirement greatly aids evaluation of regression

analyses such as those used here. Regressions seek to

prove race discrimination by testing possible alternative

explanations for an observed disparity between blacks and

whites, and typically these alternative explanations will

be particular employee traits such as prior experience or

education. The minimum objective qualification approach

should not, however, be read as a hard and fast rule; tests

for the sufficiency of a Title VII prima facie case must

not be applied in a “rigid, mechanistic, or ritualistic”

way. Furnco, supra, 438 U.S. at 577, 98 S.Ct. at 2949.

The minimum objective qualification approach is not a

quick litmus test, but an analytic method to ensure that

a plaintiff’s statistics measure disparities among compar-

ably qualified workers, rather than disparities in qualifi-

cations. The ultimate test of sufficiency must remain that

of Burdine, Teamsters, and Furnco: did the plaintiffs

offer evidence “adequate to create an inference that * * *

employment decision[s] * * [were] based on a discrimi-

natory criterion illegal under the Act.” Teamsters, supra,

431 U.S. at 358, 97 S.Ct. at 1866. Accord Burdine, supra,

450 U.S. at 253-254, 101 S.Ct. at 1093-1094; Furnco, su-

pra, 438 U.S. at 577, 98 S.Ct. at 2949; Valentino, supra,

674 F.2d at 74 (statement of Wald, J. on denial of re-

hearing) (“In each case, the critical question is whether

there is a reasonable basis for inferring disparate treat-

ment.”).

In the present case DEA has challenged plaintiffs’ sal-

ary regression analyses on the ground that they fail to

account for a minimum objective qualification: specialized

prior experience in criminal investigations. The burden

of DEA’s argument is that the failure to include this

factor skewed ail of plaintiffs’ studies because the lower

37a

salaries and less rapid promotions of black agents can in

large measure be traced to the fact that black agents lack

prior criminal investigative experience and therefore enter

DEA at a lower grade level. This court must determine

whether the failure of plaintiffs’ analyses to account spe-

cifically for this factor precludes an inference of discrim-

ination under the functional test of Burdine, Teamsters,

and Furnco. Although we review the trial court’s find-

ings of fact on the clearly erroneous standard, Albemarle

Paper Co., supra, 422 U.S. at 424, 95 S.Ct. at 2374, the

issue whether a Title VII plaintiff has included necessary

variables in statistical proof “trigger[s] a more careful

examination * * *.” Trout v. Lehman, 702 F.2d 1094,

1101 (D.C.Cir. 1983), vacated on other grounds, ——

US. , 104 S.Ct. 1404, 79 L.Ed.2d 732 (1984). We

must therefore delve somewhat deeply into DEA’s initial

grade assignment practices.

Special agents enter DEA at either the GS-7 or the

GS-9 level. The requirements for the two entry levels are

set forth in the Civil Service Commission Handbook, x-

118, and have been summarized in a stipulation of the

parties, Joint Exhibit I, JA 39. The requirements for

GS-7 are three years of general experience and one year

of specialized experience. JA 39. The requirements for

GS-9 are three years of general experience and two years

of specialized experience. Jd. General experience is de-

fined as:

[P]rogressively responsible experience which has re-

quired (1) ability to work or deal effectively with in-

dividuals or groups of persons; (2) skill in collecting

and assembling pertinent facts; (3) ability to pre-

pare clear and concise reports; and (4) ability and

willingness to accept responsibility.

Id. Specialized experience is defined as:

[P]rogressively responsible investigative experience

which demonstrates (1) initiative ingenuity, re-

sourcefulness, and judgment required to collect, as-

38a

semble and develop facts and other pertinent data;

(2) ability to think logically and objectively, to ana-

lyze and evaluate facts, evidence, and related infor-

mation, and arrive at sound conclusions; (3) skill in

written and oral reports and presentation of inves-

tigative findings in a clear and concise manner; and

(4) tact, discretion, and capacity for obtaining the

cooperation and confidence of others

Id. at 40. In addition, special agents at both GS-7 and

GS-9 are criminal investigators, JA 41, and one year of

their prior specialized experience must be in criminal

investigative work or other comparable work. JA 40.

Extrapolating, we see, first, that every special agent

hired, whether at GS-7 or GS-9, must have at least one

year of prior specialized experience in criminal investiga-

tive work, and, second, that the only difference between

those hired at GS-7 and those hired at GS-9 is one addi-

tional year of specialized experience as defined above.

According to the stipulation, this additional year need

not be in criminal investigations.

These facts severely undermine DEA’s argument. The

claim that plaintiffs’ statistics have wholly failed to ac-

count for prior experience in criminal investigations is

inaccurate. Plaintiffs studied only those whom DEA had

already hired. Every one of them must have met the

basic Civil Service requirement of one year of prior crim-

inal investigative experience to have been hired even at

the GS-7 level. Thus DEA’s claim that plaintiffs’ studies

“took no account of basic experiential requirements,” brief

for appellants at 60, is incorrect according to the facts

to which DEA stipulated. Plaintiffs’ studies did not spe-

cifically account for criminal investigative experience over

and above this one year that all special agents possess.

But—again according to the stipulated facts—criminal in-

vestigative experience above the one year minimum is not

a requirement for entry at GS-9 instead of GS-7. Rather,

the additional requirement for entry at GS-9 is a second

year of .“specialized experience” as defined in the Civil

39a

Service Commission Handbook. Plaintiffs’ failure ex-

plicitly to account for additional years of prior criminal

investigative experience therefore cannot be viewed as an

omission of a minimum objective qualification.

The only possible omission of a minimum objective

qualification in this case would be plaintiffs’ failure to

account specifically for the requirement of an additional

year of “specialized experience,” as defined in the Civil

Service Commission Handbook. For three reasons, we

hold that the District Court’s approval of plaintiffs’ deci-

sion to exclude this variable from their analyses was not

erroneous.

First, the operative Civil Service definition of “special-

ized experience” is highly subjective. It measures such

intangibles as “ingenuity,” “resourcefulness,” “ability to

arrive at sound conclusions,” “tact,” and “discretion.”

JA 40. The law is clear that a plaintiff’s proof must ac-

count for objective qualifications; exclusion of subjective

requirements, such as those encompassed in the definition

of “specialized experience,” is entirely proper. See Davis

v. Califano, supra, 613 F.2d at 964. The reason for ex-

clusion is equally clear. Such subjective criteria may well

serve as a veil of seeming legitimacy behind which illegal

discrimination is operating. If so, measurement of the

relation of such a factor to an observed disparity would

simply amount to a measure of the amount of discrimina-

tion operating through application of the factor. See

Vuyanich I, supra, 505 F. Supp. at 277; James v. Stock-

ham Valve & Fitting Co., 559 F.2d 310, 331-333 (5th Cir.

1977); Finklestein, The Judicial Reception of Multiple

Regression Studies in Race and Sex Discrimination Cases,

80 CoLUM.L.REV. 737, 738-742 (1980). Cf. Valentino,

supra, 674 F.2d at 73 n. 30 (failure to include (GS)

grade level as a variable in regression analysis is proper;

“absent clear, affirmative evidence that promotions were

made in accordance with neutral, objective standards con-

sistently applied, there is no assurance that level or rank

40a

is an appropriate explanatory variable untainted by dis-

crimination”).

Second, plaintiffs were not realistically able to account

for the application of so amorphous a criterion as the

Civil Service definition of “specialized experience.” This

circuit has recognized that “[t]he appropriate degree of

refinement of the plaintiffs’ statistical analysis * * * may

depend on the quality and control of the available data.”

Trout v. Lehman, supra, 702 F.2d at 1101. Plaintiffs here

relied on the objective evidence available to them—the

Justice Department’s JUNIPER tapes—to construct their

analytical models. Based on this and other evidence rea-

sonably available to them, they could not possibly have

quantified the applicable Civil Service requirement of

“specialized experience” in a manner that would have

made the requirement amenable to statistical analysis.

Perhaps DEA has distilled objective proxies for “special-

ized experience’—as such as prior police experience—

that might have been quantifiable, but the record is devoid

of any evidence that DEA has in fact done so. Both the

policies underlying Title VII and general principles of

evidence suggest that the burden of production of such

evidence must rest with the defendant. See Trout v.

Hidalgo, 517 F. Supp. 873, 883 & n. 33 (D.D.C. 1981)

(“[o]ne clear purpose of discrimination law, is to force

employers to bring their employment processes into the

open’), aff'd, 702 F.2d 1094 (D.C.Cir. 1983), vacated on

other grounds, US. , 104 S.Ct. 1404, 79

L.Ed.2d 732 (1984); EEOC v. Radiator Specialty Co.,

610 F.2d 178, 185 n. 8 (4th Cir. 1979) (Title VII case

following “principle of allocation of proof to the party

with the most ready access to the relevant information’’) ;

DeMedina, supra, 686 F.2d at 1008, 1009 & n. 7.

Third, even if we accept arguendo that a second year

of specialized experience—or, for that matter, of criminal

investigative experience—is a minimum objective qualifi-

cation, DEA’s objections would still fall short in a crucial

respect. A strong argument exists that plaintiffs’ regres-

4la

sions have implicitly accounted for this variable. Apart

from the unsubstantiated declamations of DEA’s appel-

late attorneys, in the record so much as hints that black

special agents are less likely than white special agents to

possess this qualification. The labor pool that plaintiffs’

experts studied comprised only those whom DEA had al-

ready hired. All of these individuals had at least one

year of prior criminal investigative experience. There

is simply no reason to assume that the blacks in such a

group of trained, experienced law enforcement officials

are less like!:’ than the whites in the same group to have

had a second year of “specialized experience” or prior

criminal investigative experience. Nor has DEA “articu-

lated * * * [a] basis for the assumption that such skilis

are in fact unevenly distributed * * *.” DeMedina, supra,

686 F.2d at 1008. In an analogous situation the court in

DeMedina established a “rebuttable presumption of an

equal distribution of the relevant * * * skills.” Jd. (em-

phasis in original). Such a presumption is equally appro-

priate here.

This high degree of homogeneity of qualifications

among those in the labor pool distinguishes the present

case from Valentino, supra, where the court did not em-

ploy a presumption of equal qualifications. In Valentino

the court found that “[i]n the setting [of the case] it

would be irrational to assume ‘equal qualifications’ to fill

engineering or secretarial vacancies among persons edu-

cated the same number of years and employed by the

government for the same length of time.” 674 F.2d at 71

(footnotes omitted). In other words, the heterogeneity of

the labor pool that plaintiff defined precluded any pre-

sumption of equal qualifications. In the present setting,

by contrast, it would be irrational to assume unequal

qualifications. ies

Since DEA has presented no admissible evidence that

black agents are more likely than white agents to lack a

second year of requisite experience, plaintiffs’ failure to

account for this variable does not dilute the force of their

42a

statistical analysis; in the language of the statistician,

absent any reason to conclude that the omitted factor

correlates with race, the omission of the variable will not

affect the validity of the race coefficient in plaintiffs’ re-

gression analysis. See D. Baldus & J. Cole, supra, at 273;

Vuyanich I, supra, 505 F. Supp. at 274.

Though any one of the above reasons would have justi-

fied plaintiffs’ decision to exclude “specialized experience”

as a variable, we note the multiplicity of proper objections

to use of this criterion in order to highlight the weakness

of this aspect of DEA’s challenge. In sum, plaintiffs’

statistical proof cannot be faulted for any failure to focus

on a population that “closely approximates the character-

istics” of those eligible for the positions at issue. De-

Medina, supra, 686 F.2d at 1007. By studying only those

whom DEA had already hired, plaintiffs’ experts ensured

in this case that the group analyzed would possess a rela-

tively similar composite of skills and experience. Thus,

on the methodological level, the District Court correctly

concluded that plaintiffs’ evidence meets the functional

test of Teamsters, Furnco, and Burdine.

b. Explanatory power. DEA also challenges the ex-

planatory power of plaintiffs’ statistical evidence. As a

threshold matter DEA argues that because the trial court

did not evedit any of plaintiffs’ specific anecdotal accounts

of discrimination, see Part I-C & n. 10 supra, plaintiffs

could not make out a prima facie case unless their statis-

tics showed “gross disparities” of treatment. See Hazel-

wood School District, supra, 483 U.S. at 307-308, 97 S.Ct.

at 2742. We must therefore decide at the outset whether |

plaintiffs’ lack of anecdotal evidence triggers a require-

ment that plaintiffs show gross disparities of treatment.

Beyond this threshold issue DEA argues that plaintiffs’

statistics do not show sufficient actionable post-1972 dis-

crimination at sufficient levels of statistical significance

to support an inference of discrimination. Thus we must

also decide whether the District Court properly found

43a

that plaintiffs had made a sufficient showing of action-

able discrimination, both in terms of the magnitude of

actionable disparities and in terms of the level of statis-

tical significance.

The effect of a lack of anecdotal evidence. Anecdotal

testimony recounting personal experience of discrimina-

tion plays an important role in Title VII litigation. “Such

testimony may ‘[bring] the cold numbers convincingly

to life.”” Valentino, supra, 674 F.2d at 68 (quoting

Teamsters, supra, 431 U.S. at 338-339, 97 S.Ct. at 1856).

The presence of anecdotal testimony bolsters a plaintiff’s

case, and may become crucial when “the statistical evi-

dence does not adequately account for ‘the diverse and

specialized qualifications necessary for [the positions in

question].’” Valentino, supra, 674 F.2d at 69 (quoting

Wilkins v. University of Houston, 654 F.2d 388, 410 (5th

Cir. 1981) ).

DEA urges that the converse is equally true; when

anecdotal evidence is lacking, statistical evidence must

show, as a matter of law, not merely disparities in treat-

ment, but “gross disparities.” This argument derives

from one sentence in Hazelwood School District, supra:

“Where gross statistical disparities can be shown, they

alone may in a proper case constitute prima facie proof

of a pattern or practice of discrimination.” 433 U.S. at

307-308, 97 S.Ct. at 2742. Drawing from this sentence a

fixed rule that only “gross” disparities suffice absent

anecdotal testimony, DEA reads the words for all they

are worth, and more.

Neither Hazelwood nor any other Supreme Court prece-

dent supports a rule that statistical proof of the kind

presented in this case is insufficient absent anecdotal evi-

dence. To make a prima facie case plaintiffs must meet

the functional standard of Teamsters, Burdine, and

Furnco; they must present evidence sufficient to support

an inference of discrimination. All evidence that a plain-

tiff presents can contribute to this inference, and should

therefore be considered as cumulative. EEOC v. Ameri-

44a

can National Bank, 652 F.2d 1176, 1188 (4th Cir. 1981)

(reliance on “cumulation of evidence including statistics,

patterns, practices, g°neral policies or specific instances

of discrimination”), cert. denied, 459 U.S. 928, 103 S.Ct.

235, 74 L.Ed.2d 186 (1982). Though anecdotal evidence

might bolster a plaintiff’s case or reduce the need for

strong statistical proof, see Valentino, supra, 674 F.2d at

69, neither the presence nor the absence of specific anec-

dotal accounts alters the standard that a plaintiff’s initial

case must meet.

Read in context the language in Hazelwood on which

DEA places so much weight will not bear the meaning

DEA seeks to impose on it. In the immediately preceding

passage the Court, quoting from Teamsters, stated: “Evi-

dence of longlasting and gross disparity between the com-

position of a workforce and that of the general population

may thus be significant * * *.” 433 U.S. at 307, 97 S.Ct.

at 2741 (quoting Teamsters, supra, 431 U.S. at 340 n. 20,

97 S.Ct. at 1856 n. 20) (emphasis added). The language

to which DEA points refers back to this preceding sen-

tence. Thus, if the Court intended any specific rule by

the “gross disparity” language, the Court meant that

rule to apply when a plaintiff relies on general popula-

tion/workforce comparisons and lacks anecdotal evidence.

Such a requirement might be appropriate because a popu-

lation/workforce comparison will usually yield only rough

evidence of discrimination; the method is not finely turned

to the population of those eligible for and interested in

the positions at issue. Absent anecdotal evidence, an in-

ference of discrimination is less secure when such statis-

tics show only slight disparities. When, however, statis-

tical evidence is more finely turned to the relevant labor

pool, gross disparities need not be shown to permit an

inference of discrimination. See B. SCHLET & P. GROSS-

MAN, EMPLOYMENT DISCRIMINATION LAW 1371 (1983).

Statistics, of course, “are not irrefutable,” Teamsters,

supra, 431 U.S. at 340, 97 S.Ct. at 1856, but when a

plaintiff’s statistical methodology focuses on the appro-

45a

priate labor pool and generates evidence of discrimination

at a statistically significant level, no sound policy reason

exists for subjecting the plaintiff to the additional re-

quirement of either providing anecdotal evidence or show-

ing gross disparities. Such a rule would reflect little

more than a superstitious hostility to statistical proof, a

preference for the intuitionistic and individualistic over

the scientific and systemic. It is not difficult to under-—

stand that discrimination might exist even when affected

individuals can point to no specific instances of an em-

ployer’s discriminatory conduct. The days of Bull Connor

are largely past; discrimination now works more subtly.

Yet its effects are no less pernicious. “ ‘In many cases the

only available avenue of proof is the use of racial statis-

ties to uncover clandestine and covert discrimination

*"* *”” Teamsters, supra, 431 U.S. at 340 n. 20, 97

S.Ct. at 1856 n. 20 (quoting United States v. Ironworkers

Local 86, 443 F.2d 544, 551 (9th Cir. 1971)). Statistical

proof, crucial to advancing the purposes of Title VII, must

not be encumbered with requirements such as those DEA

urges here.

In the present case plaintiffs rely on statistical evidence

that has been demonstrated to be fine-tuned to the rele-

vant labor pool. See Part II-B-1-a supra. This case is, in

other words, a far ery from Hazelwood. If plaintiffs’

statistical proof standing alone permits an inference that

DEA’s employment decisions were more likely than not

based on race, then this proof suffices irrespective of the

presence of supporting anecdotal evidence. Moreover,

were we to require anecdotal evidence plaintiffs would

still meet their prima facie burden. Although DEA ade-

quately rebutted most testimony regarding specific in-

stances of discrimination, 508 F. Supp. at 690, 713, the

trial court crecited much of plaintiffs’ nonstatistical evi-

dence, including the testimony of several agents about

disparate treatment in disciplinary procedures and super-

visory evaluations, and about black agents’ general per-

ceptions that DEA was a discriminatory environment.

Id. at 708-711.

46a

ii. The sufficiency of plaintiffs’ showing of disparities.

Although plaintiffs need not show enhanced or “gross”

disparities, they must present evidence that permits an

inference of discrimination under the test of Burdine,

Teamsters, and Furnco. DEA raises two issues with re-

spect to the sufficiency of plaintiffs’ showing under this

test. The first issue involves the magnitude of actionable

discrimination shown in plaintiffs’ statistics; DEA argues

that the District Court improperly relied on nonactionable

pre-1972 discrimination reflected in the statistics in find-

ing a prima facie case of discrimination. The second issue

involves the statistical significance of the disparities in

plaintiffs’ regressions.

The magnitude of actionable disparity. DEA has made

a very cursory argument that appellees’ statistical show-

ing is flawed because the statistics in part reflect pre-

1972 discrimination. The brevity of DEA’s analysis offers

little clue as to the import of this alleged “flaw.” We do

not understand DEA to be contending that the District

Court based its finding of discrimination on the erroneous

legal premise that pre-1972 discrimination was independ-

ently actionable, for the court explicitly indicated that

“Title VII is applicable to DEA only for post-1972 dis-

crimination.” Findings § 7d, 508 F. Supp. at 696. Nor

do we understand DEA to be contending that statistical

evidence reflecting both pre-1972 discrimination and post-

1972 discrimination cannot, as a matter of law, suffice to

support an inference of post-1972 discrimination. See

Valentino, supra, 674 F.2d at 71 n. 26 (“failure to factor

out time-barred discrimination [does not] discredit the

analyses. Statistics tuned to the proper time period are

more probative than statistics not so tuned, but cate-

gorical rejection of the latter is npt warranted”) ; Move-

ment for Opportunity and Equality v. General Motors

Corp., 622 F.2d 1235, 1258 (7th Cir. 1980). Finally,

DEA has not even suggested that the District Court did

not base its liability determination independently on evi-

dence that did not reflect pre-1972 discrimination.

47a

Despite the shortcomings of DEA’s analysis, we have

considered with care the possibility that erroneous con-

sideration of pre-1972 discrimination may have infected

the lower court’s liability determination. This question

commands our attention in light of the Supreme Court’s

recent decision in another Title VII case, Lehman v.

Trout, U.S. ——, 104 S.Ct. 1404, 79 L.Ed.2d 732

(1984). In Trout the Court vacated this circuit’s affirm-

ance of a District Court finding of discrimination based

largely on evidence reflecting both pre- and _ post-1972

discrimination. To understand the relevance of the Su-

preme Court’s holding to the present case we must trace

the course of the court decisions in T'rout.

Though the plaintiffs’ statistics in Trout reflected both

pre- and post-1972 discrimination, the District Court

found the statistics sufficient to support an inference of

post-1972 disparate treatment. In dismissing the defend-

ants’ objection to the use of the pre-1972 data the court

indicated, inter alia, that “[i]t is likely that such dis-

crimination before 1972, even if coupled with neutral em-

ployment practices since then, produced actionable con-

tinuing discriminatory effects after 1972 * * *.” Trout

v. Hidalgo, supra, 517 F.Supp. at 880. On appeal this

court held that the District Court’s “continuing effects”

theory was “flatly inconsistent” with the Supreme Court’s

earlier pronouncements. Trout v. Lehman, supra, 702

F.2d at 1104. However, because the record indicated to

us that the District Court had found, in the alternative,

that post-1972 statistics were sufficient to support an in-

ference of disparate treatment, see Trout v. Hidalgo,

supra, 517 F.Supp. at 879 n.14, we affirmed the court’s

liability determination.

Although the Supreme Court found no fault with our

understanding of Title VII principles in Trout, the Court

vacated and remanded to this court with instructions to

remand “to the District Court for findings of fact, based

on new evidence if necessary, on the question what evi-

dentiary value respondents’ and petitioners’ statistical evi-

48a

dence has in light of the Court of Appeals’ conclusions of

law concerning employment decisions that are not action-

able in this case. See Pullman-Standard v. Swint, 456

U.S. 278, 292, 102 S.Ct. 1781, 1792, 72 L.Ed. 66 (1982).”

Lehman v. Trout, supra, —— U.S. at , 104 S.Ct. at

1404. Though the Court’s opinion was exceedingly brief

and its citation to Pullman-Standard was unexplained,

this citation implies that the Court was acting out of an

abundance of caution to protect the sanctity of the trial

court’s factfinding function. See Pullman-Standard v.

Swint, supra, 456 U.S. at 292, 102 S.Ct. at 1792. We

therefore infer that, in Trout, the Court was unsure

whether the trial court would have found discrimination

absent its erroneous understanding as to the legal sig-

nificance of “continuing effects.” Hence the remand.

At least in the context of this case, the message to be

gleaned from Trout is that we must proceed with caution

if the trial court has made an error of law in finding dis-

crimination, lest we invade the factfinding prerogative of

the District Court. If the District Court has found a

prima facie case of discrimination “because of an erro-

neous view of the law, “Pullman-Standard, supra, 456

U.S. at 292, 102 S.Ct. at 1792 (emphasis added), this

court may not take upon itself the task of deciding in

the first instance whether the facts nonetheless support

an inference of discrimination under a correct under-

standing of the law.

In this case we have no trouble concluding that the

teachings of Pullman-Standard and Trout do not warrant

reversal of the District Court on the ground that the

court used some statistics that might reflect pre-1972 dis-

crimination. DEA has not argued on appeal that the use

of data reflecting pre-1972 discrimination affected any

aspect of the District Court’s liability determination

other than the findings of salary disparities.** Hence,

*1 Pre-1972 discrimination may also have affected the re-

sults obtained in some of appellees’ grade-at-entry statistics.

49a

even if DEA’s argument were well-placed, most of the

District Court’s liability determination would remain in-

tact. Specifically, DEA has not suggested that this argu-

ment has any application to the District Court’s inde-

‘pendent findings that plaintiffs established a prima facie

ease of discrimination in grade-at-entry, work assign-

ments, supervisory evaluations, discipline, and promo-

tions. See 508 F.Supp. at 712-715. And even with re-

spect to the plaintiffs’ prima facie proof of salary dis-

parities further factfinding by the District Court is un-

necessary. It is far from clear whether the court erro-

neously reasoned that any disparities resulting from the

continuing effects of pre-1972 discrimination were action-

able. However, assuming arguendo that such a legal

error was made, it is clear that the trial court did not

make its finding of a prima facie case of salary discrimi-

nation “because of” any such erroneous view. Two con-

siderations compel this conclusion.

First, as we have explained, the court properly could

consider evidence that may have reflected pre-1972 dis-

However, the trial court found that “[flor new hires (post

1972) Blacks were 12% less likely than whites to be hired

at GS-9, as opposed io GS-7, and this is statistically signifi-

cant at the .01 level.” Findings { 9a, 508 F.Supp. at 698.

*2 The court’s 1979 Liability, Determination contains no

suggestion that the court thought continuing effects were

actionable. In fact, the court’s repeated statements that DEA

could have rebutted plaintiffs’ statistics by making a showing

that the statistics reflected the continuing effects of pre-1972

discrimination dictates the opposite conclusion. In une isolated

sentence in the 1981 Remedial Order the court did tate

its view that continuing effects of pre-1972 discrimination

are actionable under a continuing violation theory. Although

this is a correct statement of the law of this circuit, sce

Thompson v. Sawyer, 678 F.2d 257, 291 (D.C. Cir. 1982);

Bethel v. Jefferson, 589 F.2d 631, 636-637 (D.C. Cir. 1978),

as we indicate infra we do not think the record supports a

finding that there was a continuing violation here.

50a

crimination in determining that a prima facie case was

established. In considering plaintiffs’ first regression,

which included data on employees hired before 1972, the

court acknowledged that it was theoretically possible

“that pre-1972 discrimination might affect” the regres-

sion. Findings J 7h, 508 F.Supp. at 697. The court, how-

ever, expressly found that this effect was unproven™

and that it might cause the regression to underestimate

the extent of post-1972 discrimination.* The trial court

concluded that DEA’s failure to test this hypothesis em-

pirically left DEA’s criticism “speculative and incapable

23 Findings { 7g, 508 F.Supp. at 696 (“It has been neither

admitted nor proven that Defendants discriminated against

Black special agents prior to 1972.”) ; see 508 F.Supp. at 712.

In this respect the case is quite unlike Trout, where the Dis-

trict Court expressly found that pre-1972 discrimination had

occurred and that it was likely that such discrimination had

“continuing discrimifatory effects after 1972.” Trout v.

Hidalgo, 517 F.Sunm. &°%, 880 (D.D.C. 1981), aff’d, 702 F.2d

1094 (D.C. Cir. 1983), tacated, —— U.S. , 104 S.Ct.

1404, 79 L.Ed.2d 732 (1984).

24 The court indicated that:

Depending on DEA’s response to perceived pre-1972

discrimination, said discrimination might have three pos-

sible effects on the [relevant] statistics, namely (1) the

showing of post-1972 discrimination could be artifically

[sic] accentuated because it would include pre-1972 dis-

crimination, (2) the showing could be attentuated by any

affirmative action taken by DEA to rectify pre-1972 dis-

crimination, and (3) the showing might actually down-

play post-1972 discrimination because any affirmative

action by DEA was overresponsive to the pre-1972 dis-

crimination. No evidence was presented by Defendants

indicating that one of the three possibilities was more

probable than any of the others.

508 F.Supp. at 697 n. 3.

Bla

of rebutting Plaintiffs’ statistical showing.” * Moreover,

based on the second regression (analyzing agents hired

after 1972) the court found that “post 1972 discrimina-

tion largely contributed ”to the statistical results in the

first regression. Findings { 7i, 508 F.Supp. at 697.

Given these factual findings the lower court certainly

could, and did in fact, permissibly conclude that the first

regression established a prima facie case of post-1972

discrimination, and these findings plainly indicate that

the District Court did not consider a continuing effects

theory to be essential to its findings that a prima facie

case of post-1972 discrimination was established.

Second, the District Court’s finding that plaintiffs es-

tablished a prima facie case of discrimination in salaries

was independently based on statistics pertaining only to

employees hired after 1972. The court reviewed these

statistics and found that the salary disparities were “sta-

tistically significant at or below the .05 level for every

year since 1975.” Findings {| 7d, 508 F.Supp. at 696. It

also found that these statistics “tend to downplay the

effects of discrimination at DEA because almost half the

agents in the 1975 analyses were hired in 1974, and the

most serious promotional problems are encountered in the

middle and upper grades.” Findings | 7e, 508 F.Supp.

at 696. The coourt concluded that these statistics evi-

denced gross salary disparities, and that because of these

disparities plaintiffs had established a prima facie case

of salary discrimination.”

*°508 F.Supp. at 712 (discussing DEA’s allegation that

plaintiffs’ “statistics were insignificant because relevant fac-

tors (e.g., pre-1972 discrimination, inflation, and specific types

of prior work experience) were omitted from the regression

analyses”).

26 In the words of the District Court:

Plaintiffs have shown gross disparities between the

salaries of comparably qualified Black and White agents

at DEA. These disparities are evident in the regression

52a

In light of the foregoing, we conclude that considera-

tion of some data that might hypothetically reflect con-

tinuing effects of pre-1972 discrimination does not dic-

tate reversal of the District Court’s liability determina-

tion. The District Court’s opinion clearly indicates that

the court based this determination independently on evi-

dence that did not reflect such discrimination. DEA has

not argued otherwise. In these circumstances, due regard

for the trial court’s role as finder of fact requires us to

respect the independent bases on which the District Court

grounded its liability determination. Accordingly, we

conclude that the court’s findings are not “infirm be-

cause of an erroneous view of the law.” Pullman-Stand-

ard, supra, 456 U.S. at 292, 102 S.Ct. at 1792.

The statistical significance of the disparities shown.

DEA also argues that plaintiffs’ salary regressions did

not achieve a level of statistical significance sufficient to

permit an inference of discrimination.27 The motion of

analyses involving all agents for the period 1975-1978,

and new hires for the period 1976-1978. Because of the

significant level of the disparities shown, Plaintiffs have

proven a prima facie case of discrimination in salary. * * *

508 F.Supp. at 712 (emphasis added).

27 DEA also argues that plaintiffs’ regressions lack pro-

bative worth because the R®? figures are too low. R? pro-

vides an overall indication of how well the disparity in the de-

pendent variable (salary, in this case) can be explained by

al] the independent variables. Plaintiffs’ first salary regression

had R? values ranging from .42 to .52. Plaintiffs’ second

salary regression had R? values ranging from .21 to .37.

Findings {| 7n, 508 F.Supp. at 697. The court found that

these values were “not so low as to adversely affect the

veracity of Plaintiffs’ studies.” Jd. We find no error in this

decision, given the high levels of statistical significance that

plaintiffs’ studies achieved; R? is not a measure of statisti-

cai significance and is not a highly precise indicator of the

probative value of a statistical study. See D. BALDus & J.

COLE, supra note 7, at 273-274; Vuyanich ». Republic Nat'l

58a

statistical significance addresses directly the question

whether an inference of discrimination is warranted.

Statistical significance is a measure of the probability

that the outcome of a statistical analysis would have oc-

curred by chance: The lower the probability that the

observed outcome could have occurred by chance, the

stronger the inference of discrimination that can be

drawn from the data. For example, a finding that a

study is significant at the .10 level indicates that the odds

are one in ten that the results could have occurred by

chance, and a finding of significance at the .05 level indi-

cates that the odds are one in 20 that the result could

have occurred by chance. Although the law has not set

any precise level at which statistical significance can be

said to be sufficient to permit an inference of discrimina-

tion, social scientists usually accept a study that achieves

statistical significance at the .05 level. D. Baldus & J.

Cole, supra, at 297; cf. F. MOSTELLER, R. ROURKE & G.

THOMAS, PROBABILITY WITH STATISTICAL APPLICATIONS

310 (2d ed. 1970). In other words, a study is found sig-

nificant—and the hypothesis of chance is rejected—when

there exists at most a one in 20 possibility that the ob-

served result could have occurred by chance. Several

courts have adopted the .05 level as sufficient to support

an inference of discrimination in Title VII cases. Vuy-

anich I, supra, 505 F.Supp. at 271; Cooper v. University

of Texas, 482 F.Supp. 187, 194 (N.D. Tex. 1979). The

Justice Department itself has adopted the .05 standard

as sufficient in this area. See Uniform Guidelines on Em-

ployee Selection § 14(B) (5), 43 Fed. Reg. 38290, 38301

(1978) ; 28 C.F.R. § 50.14 (1983) .?8

Bank of Dallas, 505 F.Supp. 224, 273 (N.D. Tex. 1980),

vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984).

28 DEA has urged that we adopt the “greater than two or

three standard deviations” test of statistical significance that

the Supreme Court purportedly established in Casteneda v.

Partida, 430 U.S. 482, 496-497 n. 17, 97 S.Ct. 1272, 1281

54a

Without deciding whether a plaintiff’s initial case

might suffice even without meeting the .05 level of sig-

nificance,”® we find that the plaintiffs in this case have

presented analyses that meet the generally accepted .05

level of statistical significance. All findings of plaintiff’s

salary regressions meet or exceed the .05 level, except for

the showing of discrimination in 1975 against those hired

after 1972. As noted above, however, this 1975 finding is

skewed by a unique factual circumstance. See Part I-B-1

supra. For every other year the probability that the ob-

served result occurred by chance was less than one in 20;

for most cars the probability was less than one in a thou-

sand. Jd. Similarly, plaintiffs’ statistical analyses of

grade at entry, evaluations, and discipline all achieved

results significant at or above the .05 level. Jd. These

levels of significance are certainly sufficient to support an

inference of discrimination.

n. 17, 51 L.Ed.2d 498 (1977). A level of two standard devia-

tions corresponds to statistical significance at the .05 level,

and a level of three standard deviations corresponds to sta-

tistical significance at approximately the .001 level. The

huge difference between two and three standard deviations,

and the casualness of the Court’s language in the footnote

DEA points to, together suggest that the Court in Casteneda

did not intend to fix any specific test for statistical significance.

Nor would the court have needed to do so. Since the standard

deviations of the statistics used in Casteneda ranged from

6 to 12, the Court would have had no reason to fix a precise

lower bound for statistical significance. Thus we decline to

interpret Casteneda as DEA suggests we should. In any

event, almost all of plaintiffs’ statistics in this case did achieve

statistical significance at the .05 (or 2 standard deviations)

level.

2° Some courts have suggested that an inference of dis-

crimination might be permissible even if levels of statistical

significance fall short of the .05 mark. See Vuyanich v. Re-

public Nat’l Bank of Dallas, supra note 27, 505 F.Supp. at

272.

55a \

Plaintiffs’ evidence regarding promotions stands on a

somewhat different footing. Disparity was demonstrated

at a statistically significant level in promotions from

GS-11 to GS-12. This evidence suffices to support the

requisite inference of discrimination at the GS-11 to GS-

12 level. Statistica! evidence purporting to show discrim-

ination in promotions above GS-12 did not achieve ac-

ceptable levels of statistical significance. Thus, as the

trial court correctly found, 508 F.Supp. at 714, statistics

alone will not permit an inference of discrimination in

promotions to positions above the GS-12 level.

Nonetheless, we hold that the District Court correctly

found that enough other probative evidence exists to per-

mit an inference of discrimination in promotions above

the GS-12 level. In the first place, plaintiffs’ evidence re-

garding promotions above GS-12 was not dispositive ei-

ther way on the issue of discrimination. Since so few

promotions occurred at the higher levels of DEA during

the relevant time frame, plaintiffs had to rely on a sam-

ple too small to generate statistically significant evidence

of discrimination. 508 F.Supp. at 701-702, 714. This

lack of statistical proof does not, however, prove that no

discrimination took place. And other probative evidence

does suggest discrimination. Plaintiffs made a prima

facie showing of discrimination in initial grade assign-

ments, work assignments, supervisory evaluations, and

discipline. These are precisely the factors that determine

a special agent’s prospects for discretionary promotions

at the higher levels of DEA. See Part I-A supra. With a

statistical sample large enough to permit probative re-

sults, plaintiffs demonstrated that black agents indeed

fared less well in promotions from GS-11 to GS-12 the

likely result of discrimination in evaluations, initia!

grade assignments, work assignments, and discipline.

After finding discrimination in the factors that bear

most strongly on promotions, and in promotions at the

immediately preceding step, the trial court could and did

appropriately draw an inference of discrimination in

56a

promotions above GS-12. Although indirect, the evidence

permits an inference that discrimination was more likely

than not.

2. The insufficiency of DEA’s rebuttal case. DEA also

claims that the trial court erred in its evaluation of

DEA’s case on rebuttal. DEA first points to two errors

of law that purportedly skewed the trial court’s evalua-

tion of DEA’s rebuttal case: (1) the trial court erro-

neously placed on DEA a burden of persuasion instead of

a burden of production, and (2) the trial court erro-

neously refused to admit into evidence at the remedial

stage of the proceeding DEA’s alternative regression

analyses. On top of these legal errors, DEA claims, the

triai court improperly devalued DEA’s rebuttal evidence.

DEA contends that in light of these errors and the vul-

nerability of plaintiffs’ initial case, the trial court erred

in finding discrimination.

a. The trial court’s allocation of burdens. In a Title

VII case alleging disparate treatment the “ultimate bur-

den of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains

at all times with the plaintiff.” Burdine, supra, 450 U.S.

at 253, 101 S.Ct. at 1098. See Part II-A supra. DEA ar-

gues that the trial court violated this precept in analyz-

ing the disparate treatment claim in this case. The con-

troversy turns on the interpretation given the following

paragraph in the trial court’s opinion:

The burden of proof in Title VII litigation al-

ways remains on the Plaintiff. After the establish-

ment of a prima facie case, however, the burden of

persuasion shifts to the employer. This burden re-

quires the Defendant to “articulate some legitimate,

nondiscriminatory reason.” * * * If the Defendant

meets the rebuttal burden, the Plaintiff has an op-

portunity to show that the apparently legitimate

reason is, in fact, a pretext. * * *

508 F.Supp. at 711 (citations omitted). Read literally,

one sentence in this passage would seem to indicate that

57a

the trial judge erred; he states that a burden of persua-

sion shifts to the defendant. But read as a whole, the

passage indicates that the judge allocated burdens cor-

rectly. He states explicitly that the burden of proof al-

ways remains with the plaintiff, and the burden that he

labels “persuasion” he defines as one of “articulation.” ”

A clarification that the trial court issued should re-

move any doubt on this score. The Supreme Court de-

cided Burdine one month after the trial court issued its

opinion in this case. Shortly after the Court issued Bur-

dine plaintiffs in this case requested a clarification of the

trial court’s conclusions of law with regard to the appli-

cable burdens of proof. The court responded that it had

allocated burdens in conformity with Burdine. See Order

of April 30, 1981, JA 99.

This clarification is sufficient reason to distinguish the

present case from Freeman v. Lewis, 675 F.2d 398 (D.C.

Cir. 1982). In Freeman a panel of this circuit held that

language almost identical to that of the trial court here

was an improper allocation of burdens under Burdine.

We question whether that panel gave the trial court’s

language a wholly fair reading, but we decide that the

later clarification in the present controversy suffices to

demonstrate that the trial court’s language here, though

perhaps initially ambiguous, did comport with Burdine’s

allocation of burdens.

b. The decision not to admit DEA’s alternative regres-

sion analysis. In deciding the liability issues the trial

court admonished DEA for failing to substantiate its at-

tack on plaintiffs’ statistics by reworking their analysis.

508 F.Supp. at 712. In response DEA sought to intro-

duce at the remedial phase of the trial an alternative re-

%© The burden of articulation applies to DEA’s rebuttal of

plaintiffs’ disparate treatment claims. To the extent that

plaintiffs’ evidence, and DEA’s rebuttal, implicate disparate

impact, DEA of course bears the burden of proving the busi-

ness necessity of the challenged practices.

58a

gression analysis purporting to demonstrate that race did

not explain salary differentials at DEA. Refusing to re-

open the question of liability, the trial court rejected this

proffer of evidence. See Part I-C-2 & n. 11 supra.

DEA argues on appeal as though this rejected evidence

were part of the record, see, e.g., brief for appellants at

69-71, but it is not. Nonetheless we must consider

whether the trial court properly excluded the evidence.*

In a bifurcated trial the judgment on liability remains

interlocutory, and thus subject to the trial court’s modifi-

cation, until the remedial order issues. Marconi Wire-

less Telegraph Co. v. United States, 320 U.S. 1, 47-48, 63

S.Ct. 1393, 1414-1415, 87 L.Ed. 1731 (1943). This prin-

ciple applies to bifurcated Title VII actions. Laffey v.

Northwest Airlines, Inc., 642 F.2d 578, 584-585 (D.C.

Cir. 1980). The decision whether to reopen a liability

determination is, however, discretionary. On appeal “the

critical question is whether there was good cause to do

so. Absent a convincing showing that the District Court’s

answer to this question constituted an abuse of discre-

tion, we will not second-guess its decision.” Trout v.

Lehman, supra, 702 F.2d at 1106.

Trout v. Lehman dealt with the precise issue before us

in this case. We found that a trial court had not abused

its discretion in refusing a defendant’s proffer of rebut-

tal statistics at the remedial phase of the Title VII trial.

Two factors underlay the decision: “the evidence * * *

could have been discovered and presented at trial by a

duly diligent defendant,” and the defendants “offered no

good reason whatsoever to explain why their statistical

analyses were not produced at trial.” Jd. Though the

Supreme Court vacated the Trout decision, it did so for

reasons wholly unrelated to the question of admissibility

of liability evidence at the remedial stage. In fact the

31 The evidence has not been subject to the rigors of the

adversarial process, and its veracity is therefore far from

certain.

59a

Court’s remand implicitly approved this circuit’s holding

that the trial court had not abused its discretion in re-

fusing to admit the evidence; while requiring the District

Court to make new factual’ findings with respect to dis-

crimination, the Supreme Court did not require the Dis-

trict Court to consider the evidence defendant proffered

at the remedial stage, or any other new evidence. Leh-

man v. Trout, supra, U.S. at , 104 S.Ct. at

1404.

In light of the intrinsic strength of the Trout reason-

ing on this point, and the Court’s implicit approval of

that reasoning, we follow Trout here. Plaintiffs filed the

complaint in this action in January 1977 and the case

came to trial in April 1979. DEA made use of satistical

experts, and did offer extensive statistical evidence at the

liability phase. Without a doubt, DEA had the time and

the resources to develop and present its alternative re-

gressions then. And DEA’s arguments at the remedial

hearing and on appeal contain not a word of justifica-

tion for its failure to do so. In light of this unjustified

omission, the trial court certainly did not abuse its dis-

cretion in refusing to admit DEA’s alternative regres-

sions.

ce. The trial court’s evaluation of DEA’s cohort anal-

ysis. Though its regressions were rejected at the reme-

dial stage, DEA did properly introduce during the liabil-

ity phase a cohort analysis to rebut plaintiffs’ showing

of disparity. Cohort analysis is another method to test

for race discrimination. Under this approach all em-

ployees who start together at the same level are surveyed

over the course of an observation period and their com-

parative progress in salary and promotions is evaluated.

DEA’s expert divided the special agents into 15 cohort

groups, each group comprising agents who started in the

same year and at the same initial grade level. The anal-

ysis revealed discrimination in four of the 15 groups.

For purposes of further evaluation, these four groups

were broken into subgroups. Discrimination was still

60a

present in two of the subgroups. After examining the

files of agents in these two subgroups, DEA discovered

that three agents had been “misclassified.” Only when

these three agents were excluded did traces of discrimina-

tion disappear from the results of the analysis. See Tr.

at 1910-1914; Findings f 8, 508 F.Supp. at 697-698.

We would overturn the District Court’s evaluation of

this evidence only if we were to find that evaluation

clearly erroneous. Though the District Court may have

overstated a bit when it labeled cohort analysis “an

untried method of statistical study, unsupported in any

published statistical work or judicial decision, 508

F.Supp. at 698, the court was surely correct to reject

this particular cohort analysis.

Court have viewed cohort analysis in this area with a

wary eye, see Valentino, supra, 674 F.2d at 72-73 n. 30;

O’Brien v. Sky Chiefs, Inc., 670 F.2d 864 (9th Cir.

1982); Trout v. Hidalgo, supra, 517 F.Supp. at 884-885.

The flaws that these courts have perceived were per-

ceived in the present case by the District Court. See

Findings { 8, 508 F.Supp. at 697-698. The court noted

that by comparing those who started at the same grade

level, the analysis fails to account for possible discrimina-

tion in initial grade assignments, an important allega-

tion in this case. More importantly, the court found

that DEA’s use of cohort analysis in this case was

methodologically flawed. The division of the workforce

into extremely small segments made it unlikely that this

cohort study would detect disparties. Instead of repeat-

edly disaggregating until groups were too small to gen-

erate any statistically significant evidence of discrimina-

tion, DEA’s expert should have aggregated the signifi-

cance of the result in each subgroup to derive a test for

significance with respect to the class as whole. See D.

Baldus & J. Cole, supra, at 212 & n. 2. In light of this

methodological misstep—and the fact that DEA’s anal-

ysis tended as much to confirm as to refute the presence

6la

of discrimination™—the District Court properly dis-

counted the probative value of DEA’s rebuttal statistics.

3. Weighing the evidence. The analytic application of

Title VII’s formulaic rules for shifting burdens can come

to resemble a furious tennis match. When the volleying

is over, however, a Title VII case is like all others: the

trier of fact must weigh the plaintiff's proof and the

defendant’s rebuttal and decide whether plaintiffs have

met the ultimate burden of persuasion that the law im-

poses on them. See U.S. Postal Service Bd. of Gov. v.

Aikens, 460 U.S. 711, , 108 S.Ct. 1478, 1482, 75

L.Ed.2d 403 (1983). We have already evaluated DEA’s

challenges to the particulars that went into the District

Court’s balance in this case. Since we have found no

errors of law or clearly erroneous findings, all that re-

mains is to examine the court’s overall assessment of the

evidence. We review with deference. Only if we find the

trial court’s ultimate decision to be clearly erroneous will

we overturn it. Albermarle Paper Co., supra, 422 US.

at 424, 95 S.Ct. at 2374.

Plaintiffs brought in a battery of statistics to prove

discrimination at DEA. Their analyses tended to show

significant salary disparities between comparably quali-

fied white and black special agents, and discrimination

in DEA’s initial grade assignments, work assignments,

supervisory evaluations, promotions, and imposition of

discipline. In response DEA sought primarily to cast

sufficient doubt on the existence of race-related dispari-

ties to prevent plaintiffs from carrying their burden of

persuasion.

To do so DEA argued that plaintiffs were required to

show “gross disparities” because they had failed to pro-

32 When plaintiffs’ experts used an undisputed statistical

technique to aggregate across DEA’s cohort groups, a salary

disparity adverse to black agents, and significant at the .001

level, was found. See Tr. at 1937 (testimony of Dr. Spradlin) ;

id. at 2001-2003 (testimony of Professor Straszheim) ; Plain-

tiffs’ Exhibit 53.

62a

duce any credited individual anecdotal accounts of dis-

crimination. We have held that, as a matter of law,

plaintiffs were not required to meet this enhanced thres-

hold of “gross disparities.” See Part II-B-1-b-i supra.

DEA also argued that plaintiffs’ salary regressions had

failed to show actionable disparities at levels of statisti-

cal significance sufficient to permit an inference of dis-

crimination. We have held that the District Court prop-

erly found that the studies did show actionable disparities

at sufficient levels of statistical significance. See Part

II-B-1-b-ii supra. In any event, this objection went only

to plaintiffs’ salary regressions and thus failed to rebut

the showings of discrimination in initial grade assign-

ments, work assignments, supervisory evaluations, pro-

motions, and imposition of discipline. The keystone of

DEA’s defense was the argument that plaintiffs had

failed to account for the explanatory variable of prior

law enforcement experience. In essence DEA has argued

that this variable, not race, explains virtually all of the

observed disparities between white and black special

agents. DEA styled this argument primarily as an at-

tack on the sufficiency of plaintiffs’ prima facie case.

In other words, DEA has argued that because plaintiffs

failed to account for this factor their initial offer of proof

was insufficient to support an inference of discrimina-

tion. We have held that plaintiffs’ failure to account

explicitly for this variable was not fatal to its prima

facie case; the trial court properly found that the evi-

dence plaintiffs did present was sufficient, notwithstand-

ing this omission, to support an inference of discrimina-

tion. We have held that plaintiffs’ failure to account

explicitly for this variable was not fatal to its prima

facie case; the trial court properly found that the evi-

dence plaintiffs did present was sufficient, notwithstand-

ing this omission, to support an inference of discrimina-

tion under the functional test of Teamsters, Furnco, and

Burdine. See Part II-B-1l-a supra.

Even if this argument is insufficient to invalidate

plaintiffs’ prima facie case, it might nonetheless serve as

63a

a legitimate nondiscriminatory explanation for the ob-

served disparities between white and black agents. In

other words, even if plaintiffs’ omission did not preclude

them as a matter of law from making their initial case,

DEA’s explanation might serve to preclude the ultimate

inference of discrimination against black agents under

the disparate treatment theory. Claiming that this fac-

tor, not race, explains the disparities, DEA has in effect

made such an argument. To rebut plaintiffs’ disparate

treatment claim DEA need not carry the burden of per-

suasion as to this legitimate nondiscriminatory explana-

tion. See Burden, supra, 450 U.S. at 253-254, 101 S.Ct.

at 1093-1094. The evidence must, however, cast sufficient

doubt on plaintiffs’ case to cause the trier of fact not to

draw the ultimate inference of discrimination. See Part

II-A-1 supra.

The District Court did not find this rebuttai suffi-

ciently strong to preclude the ultimate inference of dis-

crimination. On review we cannot say that the court

erred in this assessment. DEA has introduced no admis-

sible evidence that this alleged differential in prior law

enforcement experience exists. As we have noted, there

is no reason to assume that black agents in a group with

one year of prior criminal investigative experience are

more likely than white agents in that group to lack a

second year of such experience. See Part II-B-l-a supra.

Nor has DEA presented any admissible evidence that the

purported differential in law enforcement experience ex-

plains the observed disparities.

Absent such evidence, we are left, as the trial court

noted, with mere speculation and conjecture. See 508

F.Supp. at 712. Of course, “the most effective way to

rebut a prima facie case is to present more accurate

statistics.” Trout v. Lehman, supra, 702 F.2d at 1102.

A defendant is not absolutely required to rework a plain-

tiffs’ statistics when, as in this case, the omitted variable

64a

was allegedly too subjective to admit of quantification.™

A defendant must, however, make some credible showing

that the omission skewed plaintiffs’ statistics. At a mini-

mum the employer must raise a genuine issue of fact

as to the veracity of plaintiffs’ proof, and “[t]o accom-

plish this, the defendant must clearly set forth, through

the introduction of admissible evidence, the reasons for”

the observed disparity. Burdine, supra, 450 U.S. at 254-

255, 101 S.Ct. at 1094. “Thus the defendant cannot meet

its burden merely through * * * argument of counsel.” /Zd.

at 255 n. 9, 101 S.Ct. at 1094 n. 9. Because DEA has

introduced no evidence to support its purported nondis-

criminatory explanation, this rebuttal fails as a matter

of law.

On balance, we find no reversible error in the District

Court’s overall assessment of the evidence. The court

properly attributed probative weight to plaintiffs’ statis-

tical analyses, and properly rejected the three aspects of

DEA’s case on rebuttal—the need for gross disparities,

the insufficiency of the statistical studies, and the pur-

ported failure to account for prior law enforcement ex-

perience. In light of these findings, the court appropri-

ately held that DEA had engaged in a pattern or practice

of discrimination against black special agents, 508

F.Supp. at 712, and properly held that DEA’s initial

grade assignments, work assignments, supervisory evalu-

ations, imposition of discipline, and promotion process

had disparate impact on black agents. Jd. at 712-715."

33 Of course, when a defendant claims that a specific factor

was sufficiently objective to permit quantification, the defend-

ant’s failure to present alternative statistics incorporating the

factor will severely undermine its rebuttal.

* Having found disparate impact in these employment prac-

tices, the District Court ordered validity studies “in order to

implement effective, nondiscriminatory supervisory evalua-

tion, discipline, and promotion systems[.]” 508 F.Supp. at

715. DEA has not challenged the trial court’s application of

disparate impact analysis to these specific employment prac-

65a

We therefore affirm the District Court’s liability deter-

mination in its entirety.

4. Disparate impact analysis of DEA’s rebuttal evi-

dence. We note finally that even had DEA succeeded in

rebutting plaintiffs’ disparate treatment case by making

a credible showing that the differential in prior law en-

forcement experience explained the observed disparity,

DEA would have done no more than create a situation

ripe for resolution under the disparate impact theory.

See Part II-A-A-1-b supra. According to DEA’s argu-

ment, black special agents appear to do less well through-

out the range of DEA’s employment system because they

tend to start lower in that system as a result of their

relative lack of more than one year of prior law enforce-

ment experience. This boils down to a claim that DEA’s

requirement of a second year of law enforcement experi-

ence for entry at GS-9 instead of GS-7 has an adverse

impact on blacks because they tend to lack that qualifica-

tion. Between plaintiffs’ and defendants’ proof the trier

of fact would have had before it all the elements of a

traditional disparate izapact claim: plaintiffs had shown

a disparity and defendant had pinpointed the facially

neutral employment practice causing the disparity. In

this situation the trial court would properly have applied

the disparate impact analysis of Griggs, supra, and its

tices. Though these practices arguably encompass some sub-

jec ive judgments as to agents’ performance, we find that

disparate impact appropriately applies to them. See Bartholet,

Application of Title VII to Jobs in High Places, 95 HARV. L.

REV. 947, 1005-1008 (1982). In ordering validity studies the

trial court has neither precluded elements of subjective de-

cisionmaking in DEA’s practices nor invalidated the propriety

of the traits that DEA’s current practices seek to measure.

Rather, validity studies seek to find ways to provide more

specific guidance to discretionary decisionmakers, and to

eliminate those elements of discretionary decisionmaking that

are shown to affect black agents adversely without any com-

pensatory showing of business necessity.

66a

progeny. Had DEA made a credible showing that the

requirement of an additional year of law enforcement

experience caused the disparity, DEA would have been

required to show the job-relatedness of such a require-

ment. Griggs, supra, 424 U.S. at 432, 91 S.Ct. at 854;

Albemarle Paper Co., supra, 422 U.S. at 425, 95 S.Ct. at

2375. DEA has not even attempted any such showing.

Thus, even had DEA succeeded in its attempt to articu-

late a legitimate nondiscriminatory explanation, DEA

would still have been found in violation of Title VII

under the disparate impact theory.

II. THE REMEDIES DETERMINATION

Section 706(g) of Title VII empowers a court that has

found illegal discrimination to “order such affirmative

action as may be appropriate, which may include, but is

not limited to, reinstatement or hiring of employees, with

or without back pay * * * or any other equitable relief

as the court deems appropriate.” 42 U.S.C. § 2000e-5(¢g)

(1976). The Conference Report accompanying amend-

ment of Title VII in 1972 noted:

The provisions of this subsection are intended to

give the courts wide discretion exercising their equi-

table powers to fashion the most complete relief pos-

sible. In dealing with the present section 706(g)

the courts have stressed that the scope of relief

under that section of the Act is intended to make the

victims of unlawful discrimination whole, and that

the attainment of this objective rests not only upon:

the elimination of the particular unlawful employ-

ment practice complained of, but also requires that

the consequences and effects of the unlawful em-

ployment practice be, so far as possible, restored to

a position where they would have been were it not

for the unlawful discrimination. This broad reading

of the need for effective remedies * * * is intended to

be preserved in this bill * * *.

67a

Section-by-Section Analysis of H.R. 1746, accompanying

the Equal Employment Opportunity Act of 1972—Con-

ference Report, 118 Cong. Rec. 7166, 7168 (1972). The

Supreme Court has also stressed the breadth of this

remedial power. See Albemarle Paper Co., supra, 422

U.S. at 421, 95 S.Ct. at 2373; Franks v. Bowman Trans-

portation Co., 424 U.S. 747, 763-764, 96 S.Ct. 1251, 1263-

1264, 47 L.Ed.2d 444 (1976).

Having found pervasive discrimination at DEA, the

District Court fashioned a tripartite remedial scheme:

class-wide backpay for those at GS-11 and above,® pro-

motion goals and timetables at DEA’s upper levels, and

class-wide frontpay for those at GS-11 and above. See

Mem. Op. and Remedial Order, J.A. 114; Part I-C-2 supra.

DEA raises three challenges to theses remedies. First, the

class-wide backpay award impermissibly circumvents the

individualized remedial hearings required by Teamsters,

supra, 431 U.S. at 361-364, 97 S.Ct. at 1867-1869. Sec-

ond, the backpay award compensates for nonactionable

pre-1972 discrimination. Thir, the promotion goals and

timetables exceed the court’s remedial authority under

Section 706(g) and violate the equal protection com-

ponent of the Fifth Amendment to the Constitution.

A. Individualized Hearings

DEA objects to the District Court’s decision to forego

in this case the individualized relief hearings prescribed

in Teamsters, supra, 431 U.S. at 361, 97 S.Ct. at 1867.

*% Finding most discrimination took place at GS-11 and

above, the court did not order class-wide relief for discrimina-

tion against black agents at GS-7 or GS-9 during any given

backpay year. See Mem. Op., supra note 9, at 3, JA 116.

The court did, however, permit these agents to bring indi-

vidual claims for relief. Any individual awards at these levels

are to be deducted from the class-wide backpay pool dis-

tributed to agents at GS-11 and above. See Remedial Order

at 6, JA 124.

68a

The gravamen of DEA’s objection is that class-wide relief

may benefit some black agents who were not victims of

illegal discrimination. The Court in Teamsters stated

that when plaintiffs seek relief as “victims of the dis-

criminatory practice, a district court must usually con-

duct additional proceedings after the liability phase of

the trial to determine the scope of individual relief.” Jd.

In the wake of Teamsters individualized hearings have

been common features of Title VII class actions. See,

e.g., McKenzie v. Sawyer, 684 F.2d 62, 75 (D.C. Cir.

1982).

Though Teamsters certainly raises a presumption in

favor of individualized hearings, the case should not be

read as an unyielding limit on a court’s equitable power

to fashion effective relief for proven discrimination.*

The language of Teamsters is not so inflexible; after

stating that individual hearings are “usually” required,

Teamsters, supra, 431 U.S. at 361, 97 S.Ct. at 1867, the

Court went on to note that “[i]n determining the specific

remedies to be afforded, a district court is ‘to fashion

such relief as the particular circumstances of a case may

require to effect restitution.’” Jd. at 364, 97 S.Ct. at

1869, quoting Franks, supra, 424 U.S. at 764, 96 S.Ct.

at 1264. Later courts have often faced situations in

which the Teamsters hearing preference had to bend to

accommodate Title VII’s remedial purposes. Primarily,

36 McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982), does

not mandate individual hearings in every case. The panel in

Sawyer affirmed a District Court’s decision to require indi-

vidual relief hearings. When, in an exercise of its remedial

discretion, a trial court orders hearings, an appellate court

is properly reluctant to interfere with that judgment. But the

appellate panel in Sawyer was not faced with a trial court’s

decision that individual hearings would effectively preclude

relief for most members of the plaintiff class. Thus, Sawyer’s

reiteration of the Teamsters hearing preference should not be

taken is implying that class-wide relief in the present context

would be improper.

me sme

69a

courts have not required hearings when discrimination

has so percolated through an employment system that

any attempt to reconstruct individual employment his-

tories would drag the court into “a quagmire of hypotheti-

cal judgments.” Thompson v. Boyle, 499 F.Supp. 1147,

1170 (D.D.C. 1979) (quoting Pettway v. American Cast

Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974), cert.

denied, 489 U.S. 1115, 99 S.Ct. 1020, 50 L.Ed.2d 74

(1979) ), affd, 678 F.2d 257 (D.C. Cir. 1982) ; Hamheed

v. Intl Ass’n of Ironworkers, 637 F.2d 506, 520 (8th

Cir. 1980). See also Stewart v. General Motors Corp.,

542 F.2d 445, 452-453 (7th Cir. 1976) (pre-Teamsters),

cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d

1105 (1977); Bowe v. Colgate Palmolive Co., 416 F.2d

711, 721 (7th Cir. 1969) (same).

Applying these principles to the present controversy,

we note at the outset that the District Court did not rush

willy-nilly to impose class-wide relief. The court spe-

cifically ordered individual relief hearings where feasible.

All claims of backpay for discrimination at levels below

GS-11 will be resolved in individualized hearings. See

Mem. Op. at 3, JA 116. At these levels individualized

hearings are appropriate because a small number of dis-

cernibie decisions as to initial grade assignment and

promotions will be in issue for each agent. These de-

terminations are akin to those in Teamsters, where the

required hearings were to involve a single determination

as to whether individual plaintiffs had applied and were

qualified for particular line driver positions in the truck-

ing industry. 431 U.S. at 371-372, 97 S.Ct. at 1872-1873.

After careful consideraticn, the District Court here

ordered class-wide relief only for discrimination above

GS-11. The court had found that discrimination impeded

black agents at every turn; blacks faced extra hurdles in

DEA’s initial grade assignments, work assignments, su-

pervisory evaluations, imposition, of discipline, and pro-

motions. At the higher levels the cumulative effect of

these pervasive discriminatory practices became severe,

70a

and the increased subjectivity in evaluations gave dis-

crimination more room to work its effects. In such a

situation “exact reconstruction of each individual claim-

ant’s work history, as if discrimination had not occurred,

is not only imprecise but impractical.” Pettway, supra,

494 F.2d at 262. The District Court here specifically

found that “[e]ach major criterion in the promotion

process at DEA was tainted by discrimination, making

discrimination in the promotion process cumulative. Any

attempt to recreate the employment histories of individ-

ual employees absent discrimination would result in mere

guesswork.” Mem. Op. at 2 n. 1, JA 115. Our role in

reviewing this determination is limited. “The framing of

a remedial decree is left largely in the hands of the dis-

trict judge, whose assessment of the needs of the situation

is a factual judgment reviewable only for clear error

** *” McKenzie v. Sawyer, supra, 684 F.2d at 75.

We perceive no error in the District Court’s finding

that it would be impossible to reconstruct the employ-

ment histories of DEA’s senior black agents. Examina-

tion of discrete promotion decisions, as difficult as even

that might be, will not suffice. The decisive criteria for

promotions decisions—supervisory evaluations, breadth of

experience, and disciplinary history, see Part I-A supra

—were themselves found to be tainted with illegal dis-

crimination. The court found that discrimination had

skewed evaluations of black agents, but the court could

have had no way of knowing how much more favorable

a particular agent’s evaluation should have been, or how

a fair evaluation might have affected the agent’s chances

for obtaining a particular promotion. Similarly, the court

found that discrimination in work assignments—leaving

black agents with a disproportionately large share of

undercover assignments—had impeded black agents in

promotions, but the court could have had no way to

divine what other broadening experiences a particular

agent might have had, and no way to gauge how this

hypothetical additional experience would have affected

T1la

particular promotion decisions. And though the court

found that black agents have been disciplined more fre-

quently and more severely than white agents committing

similar infractions, the court could have had no way of

knowing exactly what effect the disproportionate disci-

plinary sanctions had on a particular agent’s chances for

particular promotions. Finally, because promotions at

DEA are cumulative, the effects of discrimination in pro-

motions are also cumulative. Denial of promotion to one

grade affects the agent’s eligibility for later promotions

to higher grades.

To require individualized hearings in these circum-

stances would be to deny relief to the bulk of DEA’s

black agents despite a finding of pervasive discrimination

against them. In effect, DEA would have us preclude

relief unless the remedial order is perfectly tailored to

award relief only to those injured and only in the exact

amount of their injury. Though Section 706(g) generally

does not allow for backpay to those whom discrimination

has not injured, this section should not be read as requir-

ing effective denial of backpay to the large numbers of

agents whom DEA’s discrimination has injured in order

to account for the risk that a small number of undeserv-

ing individuals might receive backpay. Such a result

cannot be squared with what the Supreme Court has told

us about the nature of a court’s remedial authority un-

der Title VII. “[T]he scope of a district court’s remedial

powers under Title VII is determined by the purposes of

the Act.” Teamsters, supra, 431 U.S. at 364, 97 S.Ct. at

1869. A core purpose of Title VII is “to make persons

whole for injuries suffered on account of unlawful em-

ployment discrimination.” Albemarle Paper Co., supra,

422 U.S. at 418, 95 S.Ct. at 2372. “[F]ederal courts are

empowered to fashion such relief as the particular cir-

cumstances require to effect restitution, making whole

insofar as possible the victims of racial discrimination

***” Franks, supra, 424 US. at 764, 96 S.Ct. at 1264;

accord Albemarle Paper Co., supra, 422 U.S. at 418,

72a

95 S.Ct. at 2372 (the District Courts have “not merely

the power but the duty to render a decree which will so

far as possible eliminate the discriminatory effects of the

past as well as bar like discrimination in the future’) ;

Teamsters, supra, 431 U.S. at 364-365, 97 S.Ct. at 1869-

1870. The trial court found that the particular circum-

stances of this case required classwide relief for black

agents at. GS-11 and above to ensure that they were made

whole for the pervasive discrimination they have suffered.

If effective relief for the victims of discrimination neces-

sarily entails the risk that a few nonvictims might also

benefit from the relief, then the employer, as a proven

discriminator, must bear that risk. See Stewart v. Gen-

eral Motors Corp., supra, 542 F.2d at 452-453.

B. The Allegation of Class-wide Overcompensation

In calculating the backpay pool the District Court used

the race coefficient of the first of plaintiffs’ two salary

regressions as the measure of average discriminations as

the measure of average discrimination per agent. The

first regression measured discrimination against all black

agents, including those hired before 1972. This study

may therefore have reflected the continuing effects of

some discrimination occurring prior to 1972. See Parts

I-B-1, II-B-1-b supra. Since the actionable period in this

case commenced on July 15, 1972, use of the first regres-

sion might, according to DEA’s argument, amount to

compensation for some nonactionable discrimination.”

37 DEA also makes an argument that use of the first salary

regression overcompensates plaintiffs based on the R 2 values

for this study. DEA argues that, because the R? value was

roughly .50, only about half of the race coefficient for the

years in question actually represents race-related disparity.

This argument reveals a basic misunderstanding of the mean-

ing of R? figures. An R? of .50 does not mean that only half

of the race coefficient is attributable to race. Rather, it means

that half of the total salary disparity between black and white

agents is attributable to the totality of the factors examined

73a

Though the remedial order specifically states that back-

pay begins to accrue only as of July 15, 1972, see Re-

medial Order at 3, JA 121, DEA argues that a portion

of the disparities between black and white agents as of

that time (and thereafter) was caused by discrimina-

tion before 1972, and that DEA is therefore not liable

for that portion.

The District Court found in the Liability Determina-

tion that “while pre-1972 discrimination may have af-

fected the statistics * * *, post 1972 discrimination

largely contributed to those statistics.” Finding {| 7i, 508

F.Supp. at 697. The court also noted in the Remedial Or-

der that plaintiffs’ regressions “provide an accurate

measure of the extent to which blacks at DEA were paid

less than comparably qualified whites [and] * * * pro-

vide an appropriate basis for classwide relief.” Mem. Op.

at 3, JA 116 (citation omitted). We are reluctant to

disturb the trial court’s finding on this factual issue. See

McKenzie v. Sawyer, supra, 684 F.2d at 75. Nonetheless

on the record as it now stands, we cannot affirm the

District Court’s decision to use the first regression as a

basis for calculating the backpay pool.

Although the court properly found that the plaintiffs’

evidence sufficed to support an inference of actionable dis-

crimination, see Part II-B-1-b supra, the court’s reliance

on the first regression to determine backpay is prob-

lematic. The court never found that all of that regres-

sion’s race coefficient reflected actionable post-1972 dis-

crimination.* To do so the court would have had to find

in the regression. See generally Fisher, Multiple Regression

in Legal Proceedings, 80 CoLUM. L. REv. 702, 720 (1980).

In any event, R? is far from a wholly reliable measure of a

study’s accuracy. See note 27 supra. For these reasons, we

hold that DEA’s objection based on R 2 values is without force.

38 Of course, the court need not have found that all of the

discrimination reflected in the regression occurred after 1972

in order to find the regression sufficient to make out a prima

T4a

either that all discrimination reflected in the salary dis-

parities occurred after 1972 or that the small portion of

“continuing effects” of pre-1972 discrimination reflected

in the disparities was the result of a “continuing viola-

tion.” See id. The court made neither finding, and hav-

ing found in the Liability Determination that pre-1972

discrimination had been “neither admitted nor proven,”

508 F.Supp. at 696, the court cannot plausibly rely on a

continuing violation theory in the Remedial Order as

grounds for using the first salary regression as a bench-

mark for the backpay pool.

It may be that plaintiffs’ first regression does reflect

only post-1972 discrimination. DEA’s complete failure to

present evidence showing pre-1972 discrimination in the

regression certainly supports this view. It may also be

that the portion of the disparity that reflects continuing

effects of pre-1972 discrimination might be actionable on

a continuing violation theory. Or it may be that the

small amount of continuing effects cannot plausibly be

factored out of the study; if so, and if no more precise

methods of ascertaining the amount of actionable dis-

crimination are reasonably available to the court, the

court would be faced with using either a mildly over-

compensatory formula based on the first regression or a

significantly undercompensatory formula based on the

second regression. Use of the first regression under

these circumstances might be permissible.

We cannot, however, resolve these matters on the

present appeal. As the Supreme Court stressed in Leh-

man v. Trout, supra, —— U.S. at ——, 104 S.Ct. at 1404,

this court must scrupulously respect the factfinding pre

rogative of the District Court. In this case the District

Court has not yet determined whether the first regres-

sion reflects only post-1972 discrimination, whether a

facie case of actionable discrimination. See Part II-B-1-b;

Valentino v. U.S. Postal Service, 674 F.2d 56, 71 n. 26 (D.C.

Cir. 1982).

75a

continuing violation occurred that might permit compen-

sation for whatever continuing effects the regression

reflects, or whether the small portion of nonactionable

continuing effects that might be reflected in the regres-

sion cannot be factored out. On remand, if the District

Court is unable to find that any of these three factual

circumstances exists, the court must devise a new back-

pay formula.

C. Promotion Goals and Timetables

The District Court ordered that one black be promoted

for every two whites to positions above GS-12 at DEA

until blacks made up 10 percent of all agents at each

grade above GS-12 or until five years after the order was

entered. DEA objects to this aspect of the remedy for

the same reason that it objects to class-wide backpay:

some individual agents might receive promotions they do

not deserve. DEA argues that promotion goals and time-

tables exceed a court’s remedial power under Title VII

unless every person who potentially benefits from the

relief has been individually shown to have been discrimi-

natorily denied a specific promotion. According to DEA,

Section 706(g) mandates this result. See 42 U.S.C.

§ 2000e-5(g) (1976) (“No order of the court shail re-

quire the * * * promotion of an individual as an em-

ployee, * * * if such individual was refused * * * ad-

vancement * * *.”). DEA also argues that such goals

and timetables violate the equal protection component of

the Fifth Amendment to the Constitution.

Though DEA’s claims are not without some superficial

appeal, Section 706(g) must not be read as requiring an

exact fit between those whom an employer’s discrimina-

tion has victimized and those eligible under promotion

goals and timetables. The language on which DEA relies

was aimed at ensuring that Title VII was not read as

giving courts authority to remedy racial imbalance as

an evil in itself, 7.e., absent any finding that illegal dis-

crimination caused the imbalance. See EEOC v. AT & T,

76a

556 F.2d 167, 175 (3d Cir. 1977), cert. denied, 438

U.S. 915, 98 S.Ct. 3145, 57 L.Ed.2d 1161 (1978). The

language should not be stretched to support a require-

ment of absolute precision in fashioning promotion goals

and timetables when such a requirement would frustrate

effective relief for those who were victimized by discrimi-

nation.” Every federal Court of Appeals in this nation

has approved remedial use of goals and timetables with-

out requiring that each and every potentially eligible

person be shown to have been a victim of discrimina-

tion.* Nor can the imposition of quotas to remedy proven

39 DEA has amassed an array of quotes from Title VII’s

legislative history in support of its contention that promotion

goals and timetables are invalid if they benefit any individuals

who are not proven victims of discrimination. See reply brief

for appellants at 20-22. Many in Congress spoke in 1964, and

again in 1972 when Title VII was amended, to assure wavering

supporters that Title VII could not be applied to grant prefer-

ences for those who were not victims of discrimination.

These statements are, however, inapposite to the question be-

fore us in this case. Those in Congress who made such state-

ments were not considering the issue whether in affording

relief for proven discrimination against a broad class some

- individual nonvictims might benefit in order to ensure that

all actual victims benefitted. Rather, these statements were

made with reference to the question whether Title VII could

be used as a mandate to correct overall racial imbalance in an

employer’s workforce when such an imbalance had not been

shown to be the result of discrimination.

40 See Thompson v. Sawyer, 678 F.2d 257, 294 (D.C. Cir.

1982); Chisolm v. U.S. Postal Service, 665 F.2d 482 (4th

Cir. 1981) ; United States v. City of Chicago, 663 F.2d 1354

(7th Cir. 1981); Ass’n Against Discrimination in Employ-

ment, Inc. v. City of Bridgeport, 647 F.2d 256 (2d Cir.),

cert. denied, 455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847

(1981) ; United States v. Lee Way Motor Freight, Inc., 625

F.2d 918 (10th Cir. 1979); James v. Stockham Valves &

Fittings Co., 559 F.2d 310 (5th Cir. 1977), cert. denied, 434

U.S. 1034, 98 S.Ct. 767, 64 L.Ed.2d 781 (1978) ; United States

77a

discrimination be said to violate the Constitution’s guar-

antees of equal protection. Whatever the current status

of affirmative action absent a finding of discrimination,

the Supreme Court has made clear that such relief is not

unconstitutional when used to remedy proven discrimina-

tion. See Swann v. Charlotte-Mecklenburg School Dis

trict, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ;

Bakke v. Board of Regents of the University of Califor-

nia, 4388 U.S. 265, 302, 98 S.Ct. 2733, 2754, 57 L.Ed.2d

750 (1978) (Powell, J., concurring) ; id. at 363-386, 98

S.Ct. at 2785-2797 (Bennan, White, Marshall and Black-

mun, JJ, concurring).

Nonetheless promotion goals and timetables—even if as

admirably crafted as those at issue here—must be used

cautiously. Such relief intrudes into the structure of em-

ployment relations and may at times upset the legitimate

promotion expectations of individuals in the majority

group. We must take a careful look at the District Court’s

decision to use goals and timetables in this case.

We are persuaded that the District Court’s order that

one black be promoted for every two whites to positions

above GS-12 was not appropriate. Strict goals and time-

tables should not be imposed when “alternative, equally

effective methods could * * * supplant resort to a quota.”

Thompson v. Sawyer, supra, 678 F.2d at 294. See Sledge

v. J.P. Stevens & Co., 585 F.2d 625, 646 (4th Cir. 1978),

cert. denied, 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 241

(1979) + United States v. City of Chicago, 549 F.2d 415,

v. Int'l Union of Elevator Constructors, Local 5, 5388 F.2d

1012 (3d Cir. 1976) ; Boston Chapter, NAACP, Inc. v. Beecher,

504 F.2d F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S.

910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v.

N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973) ; United

States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), cert.

denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971);

United States v. Int’l Brotherhood of Electrical Workers,

Local 38, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943,

91 S.Ct. 245, 27 L.Ed.2d 248 (1970).

Wa

437 (7th Cir. 1977), cert. denied, 434 U.S. 875, 98 S.Ct.

225, 54 L.Ed.2d 155 (1977); NAACP v. Allen, 493 F.2d

614, 621 (5th Cir. 1974). The District Court did not

consider whether less severe remedies might prove equally

efficacious in this case. We therefore vacate the District

Court’s imposition of goals and timetables, and remand

for additional consideration of the propriety of such rem-

edies

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