# Amicus Curiae Brief — Griggs v. Duke Power Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1971
- **Citation:** 401 U.S. 424

## Text

INDEX

Page

ee eo. a cc abc haces enbansens 1
OE nn cence csecccesncesccccscseesssecccesees 3
[7 oc cee eins dcneeshGonseceesecenceee 3

Il. There Has Been a Sufficient Showing of Busi-
ness Justification Here To Sanction Duke
Power’s Test and High School Education Re-

NEED “beck dteneewenbensecersesececsese 6
A. The Guidelines Are Entitled to Little Defer-
DT Shedd COR ECEMAEA ROMER Os kobe beeekews> 6

B. Duke Power’s High School Education Re-
quirement Constitutes a Valid Means of Em-

SE TUE wacacccncsecteucchoccessce 10

C. Duke Power’s Testing Requirement Consti-
tutes a Valid Means of Employee Selection.. 14
PD céGhateeeerdsnbeeseasesendetcadeuececas 20

TABLE OF AUTHORITIES
CasEs:

Amalgamated Food Employees Union v. Logan Valley
eS Lb! | BP aS eee 4
American Newspaper Publishers Assn. v. Alexander,
294 F. Supp. 1100 (D.D.C., 1968), motion for sum-
mary reversal denied, — F.2d —, 59 CCH LC,

ee Ce MD oonncncn bee ste0eeeeeesae 7
Colbert v. H.-K. Corp., Ine., — F. Supp. —, 68 CCH
L.C. 7 9514 (N.D. Ga., 1970), appeal noticed, Au-
Sth Me whcegeeadnnedeh06660804 640 b000060000m OO
Dewey v. Reymonds Metal Company, — F.2d —, 63
CCH L.C. J 9455 (6th Cir., 1970) ............... 7
EEOC Decision No. 70-501, Case No. YATS - 633, re-
printed in CCH FEP Guide { 6112 (1970) ....... 5

G. C. Opin. 461-65, Opin. Ltr. December 16, 1965, re-
printed in CCH FEP Guide § 17,252.25 ......... 18

ii Index Continued

Page
G. C. Opin. 296-65, October 2, 1965, reprinted in CCH

oe fk ll rere 13
Gwinn v. United States, 238 U.S. 347 22... 0... 6. ee,
International Chemical Workers Union v. Planters
Manufacturing Company, 259 F. Supp. 365 (N.D.
Sn MED sak uencctueaseunsGeunsecnaeshsiases
Myart v. Motorola, Inc., reprinted in 110 Cong. Ree.

fs ee rere rrr ee 14-15
N.L.R.B. v. Babcock & Wileox Co., 351 U.S. 105 ...... 4
N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375 ...... 4

N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 .... 4
Parham v. Southwestern Bell Telephone Co. — F.
Supp. —, 60 CCH L.C. § 9297 (E.D. Ark., 1969),

appeal noticed, 8th Cir., No. 19969 ...........68. 5
Skidmore v. Swift & Co., 323 U.S. 134 2.2.0.6... 0.6.8. 7, 10
I, HED UME Sn cake sand cdccnscanende 13
STATUTES:

Se Se Ee EOD Aces cccavensaneesessdaccass 9
OruEeR AUTHORITIES:

ROD Come, Beet, Bore CEDRUS) onc cccnscccscesncccccucs 9
120 Comm. Bec. GROG (10GE) 2... nc ccc cc ccccccccccness 15
110 Cong. Rec. 6997 (1964) 2.0... ccc ccc cece ene ennes 8,15
220 Come. Bet. TUBS C1BGE) 2. ncn ccccccccccccccces 12, 15
110 Cong. Rec. 10879 (1964) 2.0... ccc cece eee wees 16
110 Cong. Rec. 12641-2 (1964) 22... . ccc cece cece nce 15
TRO Comme. Bee. TOURS CIRCE) oo. cc es cc ccccccccccnnecs 17
110 Cong. Ree. 13030-13081 (1964) 2.0... ee eee 16
110 Cong. Rec. 13054 (1964) 2.0... . ccc cece eee eee 16
110 Cong. Rec. 13246 (1964) 2.0... ccc ccc eee ees 16, 17
88th Cong., Ist Sess., Additional Views of Hon. George

Meader, H. Rep. No. 94 on H.R. 7152 (1963) ..... ll

88th Cong., Ist Sess., ifearings on Civil Rights, House
Committee on Judiciary, Subcommittee No. 5,
Peemreet VOb. B CURSO) acs anvascsescsncccas 10-11, 12

88th Cong., Ist Sess., Hearing on Equal Employment
Opportunity, House of Representatives, General
Subcommittee on Labor of the Committee on Edu-
Cate GE TROT TEPGED anc ccccccseccccccevenss 12

88th Cong., Ist Sess., H.R. No. 570 ©... 0... eee eee 12

Index Continued iii

Page

sth Cong., Ist Sess., Testimony of Special Assistant
to the Director of the Bureau of the Census, Sen-
ate Hearings on Equal Employment Opportunity
WEE Wins CNR NAREAEATOR SANA ce debSe5bK0 R08 48> ll
Sth Cong. Ist Sess., U.S. Code Cong. and Admin.
News, 1526, President Kennedy, Civil Rights Mes-

SE Cha eeWECRUANGHOLUMA WE RhGee eek ceeabe sess sa 10
Sith Cong. Ist Sess., H. Rep. 1370 on H.R. 10144

DCCA CCP ees ee Nev idenehbebendase beente 11
Senate Report No, 1111, May 8, 1968 ................ 18

Affeldt, Title VII in the Federal Courts—Private or
Public Law—Part I], 15 Vill, L. Rev. 1 (1969) ... 3
1 Am. Jur. 2d, Administrative Law ................. 6
Barrett, Gray Areas in Black and White Testing, Harv.
SOO, Bee ig TE, BU, OE hsv ccccccnccuscnnes 4,10
Benetar, e¢ al., The Implications for Business of the
Civil Rights Act of 1964, 20 Record of the Assn. of
SD TO Oe ica OO SAEED widveccccasnccceccase 17
Berg, Equal Employment Opportunity Under the Civil
Rights Act of 1964, 31 Brook. L. Rev. 62 (1964) .. 18
Berg, Reviews of Berger: Equality by Statute and
Winter, Improving the Economic Status of Ne-
groes Through Laws Against Discrimination: A
Reply to Professor Sovern, 17 Amer. Univ, L. Rev.
Ue SEE CARS SAG UAC AWeNSAOAESESERSSGESS CRO cos 8
Blumrosen, Administrative Creativity: The First Year
of the Equal Employment Opportunity Commis-
sion, 88 Geo. Wash. L. Rev. 695 (1970) .......... 7,9

— Cooper and Sobol, Seniority and Testing Under Fair

Employment Laws: A General Approach to Ob-
jective Criteria of Hiring and Promotion, 82 Harv.

er ON CU Cina naaluarcesebabetacences 4,5
EEOC, Guidelines of Employee Section Procedures,
29 C.F.R. 1607 (August 1, 1970) ................ 2,9

Jackson, Remarks to a Meeting of the National Asso-
ciation for the Advancement of Colored People
Region 1, Sept. 23, 1967, reprinted at CCH FEP
_ fk errr? Tree rr eee re Te 8

Leonard, Speech to the American Bar Association Sec-
tion of Labor Law, August 10, 1970, reprinted at
157 Daily Labor Report E-1 (BNA, August 13,

ace NE ND CP a RI AN EN A. WORE LE EEE ERED |

%
:

A BS. AL OUI ae

mrtg

emayiemyytiee

iv Index Continued

Note, Legal Implications of the Use of Standardized
Ability Tests in Employment and Education, 68
CO, Bas Es GE ED on 0 a cscadeSdeebhanceent 2, 13

Report, Committee on Equal Employment Opportunity
Law, II 1970 Proceedings of the Section of Labor
Relations Law of the American Bar Association .. 2

Sovern, Legal Restraints on Racial Discrimination in
Employment, Twentieth Century Fund (1966) ... 18

IN THE
Supreme Court of the United States

OctToBeR TERM, 1970

No. 124

Wile 8. Griaas, Et AL., Petitioners,
v.
DuKE PowrR CoMPANY, a Corporation, Respondent.

On Writ of Certiorari to the United States Court of Appeals
for the Fourth Circuit

BRIEF AMICUS CURIAE ON BEHALF OF THE
CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA

INTEREST OF THE AMICUS CURIAE*

The Chamber of Commerce of the United States
of America is a federation consisting of a member-
ship of over 3,700 state and local chambers of com-
merce and trade associations, with an underlying mem-
bership of approximately 5,000,000 business firms and
individuals and a direct business membership in excess
of 38,000.

The subject matter of the instant case—the utiliza-
tion of educational or test requirements to select em-
ployees for hiring or promotion—is a matter of sig-
nificant national concern. Virtually all employers, in
all parts of the country, utilize a “‘test’’ as the Equal
Employment Opportunity Commission has broadly de-

* This brief is filed with the written consent of all parties pur-
suant to Supreme Court Rule 42(2).

2

fined that term, ‘‘any paper-and-pencil or performance
measure used as a basis for any employment deci-
sion.’’* For example, 55% of all companies in the
United States employing more than 1600 employees
use the Wonderlie Personnel Test here involved and
the Bennett Mechanical Aptitude Test, also at issue in
the present case, is used by over 20% of these com-
panies,’

The interest of the National Chamber, therefore, in
filing this brief amicus curiae urging affirmance of
the decision below, is predicated on the substantial
and far-reaching consequences that the result in this
ease will have for American industry.

1 EEOC'’s Guidelines on Employee Selection Procedures, effective
August 1, 1970, 29 C.F.R. 1607 (hereinafter referred to as the
**Guidelines’’), at Section 1607.2 thereof, further defines a ‘‘test”’
as follows:

‘|. This definition includes, but is not restricted to, measures
of general intelligence, mental ability and learning ability;
specific intellectual abilities; mechanical, clerical and other
aptitudes; dexterity and coordination; knowledge and _pro-
ficiency ; occupational and other interests; and attitudes, per-
sonality or temperment. The term ‘test’ includes all formal,
scored, quantified or standardized techniques of assessing job
suitability including, in addition to the above, specific qualify-
ing or disqualifying personal history or background require-
ments, scored interviews, biographical information blanks, in-
terviewers’ rating scales, scored application forms, ete.’’

Moreover, the Guidelines also cover, in Section 1607.13, ‘‘[s]elec-

tion techniques other than tests . . . includ[ing], but . . . not re-
stricted to, unscored or casual interviews and unscored application
forms.”’

2 Note, Legal Implications of the Use of Standardized Ability
Tests in Employment and Education, 68 Colum. L. Rev. 691, 712
(1968). It is perhaps not surprising, therefore, that an estimated
one-fifth of all charges filed under Title VII involve the issue now
before this Court. Report of the Committee on Equal Employment
Opportunity Law, II 1970 Proceedings of the Section of Labor
Relations Law of the American Bar Association, 75.

3

ARGUMENT
I.
INTRODUCTION

Prerequisite to achievement of the goal of Title
VII, the elimination of discrimination in employ-
ment relations, is the restriction of subjective factors
as criteria for employee selection. As one observer
commented, ‘‘The more control over hiring and pro-
motion policies is taken away from management and
is placed in objective events outside its control the
nearer we will be to eliminating discrimination. This
quest for objectivity is seen in the recent wholesale
adoption of standardized employment tests by Ameri-
ean industry.’’* Indeed, tests and educational re-
quirements constitute the only objective means avail-
able to employers to perform the necessary task of
selecting among applicants or employees on the basis
of individual merit when previous job experience is
not relevant or available in quantified form.‘

Employment tests and educational requirements
could, of course, become vehicles for dise»imination.
While such an invidious device is no less to be con-

3 Affeldt, Title VII in the Federal Courts—Private or Public
Iaw-—Part IT, 15 Vill. L. Rev. 1, 17 (1969). Similarly, the Jus-
tice Department has recognized the desirability of objective selec-
tion devices by insisting that remedial orders to correct discrim-
inatory hiring practices contain ‘‘objective and reviewable stand-
ards.’’ Speech of Assistant Attorney General Leonard to the Amer-
ican Bar Association Section of Labor Law, August 10, 1970, re-
printed at 157 Daily Labor Report E-1, E-3 (BNA, August 13,
1970).

*The necessity that an employer select one of many potentially
eligible individuals is a critical distinction between the instant case
and the education and voting rights cases (e.g., Gwinn v. United
States, 238 U.S. 347, and the other decisions cited at footnote 9 of
the Government’s brief herein) where it is both feasible and desir-
able that the relevant population include everyone with minimum
eligibility.

Sey > . . ‘ : VR OEP reece
See ; sii ef

LE PAGED ABTS LION ARETE PRED LA,

WS

4

demned than any overtly discriminatory practice, there
is no reason to believe that such requirements are so
used, or would ever be so used, by a significant number
of employers. Advocates of Petitioners’ position, in-
cluding co-counsel for Petitioners, have recognized
that ‘‘there is frequently no discriminatory intent un-
derlying the adoption of .. . testing practices’’* and
that ‘‘there are many easier ways to discriminate if
the employer is so inclined.’”?* The answer, thus, is
not to condemn the use of educational or test require-
ments by all employers in all cases but, rather, to
ascertain in which particular instances the employer
does not, in fact, use such devices for a bona fide
business purpose. As in so many other areas of
civil rights and industrial relations, an accommodation
must be reached between all of the legitimate interests
involved ‘‘with as little destruction of one as is con-
sistent with the maintenance of the other.’’*

Initially, there appears to be little dispute as to
the case-by-case approach that is necessary to strike
such a balance. First, there must be a determination
of the racial impact of the practice involved. As co-
counsel for Petitioners acknowledges, this step is es-
sential ‘‘to assure that a practice is not found dis-
criminatory merely because it disadvantages an in-

5 Cooper and Sobol, Seniority and Testing Under Fair Employ-
ment Laws: A General Approach To Objective Criteria of Hiring
and Promotion, 82 Harv. L. Rev. 1598, 1670 (1969).

® Barrett, Gray Areas in Black and White Testing, Harv. Bus.
Rey., Jan.-Feb. 1968, at 92, 94.

7 N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112. See also
Amalgamated Food Employees Union v. Logan Valley Plaza, Inc.,
391 U.S. 308, 323; N.L.R.B. v. Great Dane Trailers, Inc.
388 U.S. 26, 33-34; N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375.

5

dividual black in some isolated situation. A prac-
tice should be found discriminatory only where it con-
sistently and systematically prefers whites over
blacks.’’ Cooper and Sobol, supra n. 5, at 1671 (Km-
phasis added). Petitioners similarly concede that be-
fore a test or educational requirement can be deemed
unlawful it must operate as ‘‘a serious barrier’’ to
minority employment; if there is no such barrier, the
ease ‘need be subjected to little, if any, examination
under fair employment laws.’’ Brief for Petitioners
at note 18 and p. 30, citing Parham v. Southwestern
Bell Telephone Co., F. Supp. , 60 CCH L.C.
£9297 (E.D. Ark., 1969), appeal noticed, 8th Cir.,
No. 19969.

The second step, assuming that a ‘‘serious barrier”’
does, in fact, exist, is to determine those cases in
which a discriminatory intent can reasonably be in-
ferred. There is no dispute, for example, that such
an intent may exist, where, as stated by the Govern-
ment in its amicus brief (p. 19), there is an absence
of “legitimate business needs’’ which justified the em-
ployer’s utilization of such educational or test require-
ments. But what constitutes a ‘‘legitimate business
need’’? Petitioners argue that, if the business justi-
fication is not readily apparent, as where tests are
used to measure skills which are an integral component
of the job involved,*® the employer must prove the
requirements utilized were validated in conformity

* See, e.g., the typing and dictation required of clerical employees
in Colbert v. H.-K. Corp., Inc., — F. Supp. —, 63 CCH L.C.
©9514 (N.D. Ga. 1970), appeal noticed, August 3, 1970, and the
arithmetic and change-making tests utilized for grocery clerks in
EEOC Decision No. 70-501, Case No. YAT9I—633, reprinted in
CCH FEP Guide, § 6112 (1970).

- —
x in Sa
% > ie

6

with the EEOC’s Guidelines.’ If there has no such
validation, then, in their view, there has not been a
sufficient showing of overriding business necessity. It
is at this point that the National Chamber, for the
reasons set forth below, submits that Petitioners’ case
must fall.

Il.

THERE HAS BEEN A SUFFICIENT SHOWING OF BUSI-
NESS JUSTIFICATION HERE TO SANCTION DUKE
POWER’S TEST AND HIGH SCHOOL EDUCATION
REQUIREMENTS

A. The Guidelines Are Entitled to Little Deference

As the court below found, while the Guidelines are
entitled to appropriate respect, they are not conclu-
sive on the courts. 420 F.2d at 1234 citing Inter-
national Chemical Workers Union v. Planters Manu-
facturing Company, 259 F. Supp. 365 (N.D. Miss.,
1966). In contrast to ‘‘legislative’’ rules or regula-
tions which have the foree and effect of law, the
Guidelines are ‘‘interpretative’’ opinions constituting
the EEOC’s construction of Title VII and having
‘validity in judicial proceedings only to the extent
that they correctly construe the statute.’’ See, e.g.,
1 Am. Jur. 2d Administrative Law, §95 (1962). The
principal salutary effect of the Guidelines is to inform

® The ‘‘job-related’’ concept is but one aspect of the validation
process. Thus a test which is job-related may still not have been
validated as required by the Guidelines, and presumably, under
the Petitioners’ view, could not then be utilized. Accordingly, the
critical inquiry to which this brief will be addressed is the extent
to which the absence of validation, rather than job-relatedness, is
sufficient to infer a discriminatory intent.

7

‘the public of the Commission’s interpretation of the
statute’? (American Newspaper Publishers Assn. v.
Alexander, 294 F. Supp. 1100, 1103 (D.D.C., 1968),
motion for summary reversal denied, —— F.2d ——,
59 OCH L.C. 19203 (D.C. Cir., 1969)) and the Guide-
lines’ persuasiveness, in turn, is dependent ‘‘upon the
thoroughness evident in [the EEOC’s] consideration,
the validity of its reasoning, its consistency with earlier
and later pronouncements, and all those factors which
give it power to persuade, if lacking power to control.’’
Skidmore v. Swift & Co., 323 U.S. 134, 140."°

Moreover, in considering the deference to be ac-
corded the Guidelines, it should be recognized that
the EEOC has consciously sought to construe Title
VII ‘‘as broadly as possible in order to maximize
the effect of the statute on employment discrimination
without going back to Congress for more substantive

legislation’. In doing so, the Commission ‘‘de-

See Dewey v. Reynolds Metal Company, — F. 2d —, 63 CCH
L.C. § 9455 (6th Cir., 1970), where the court, in noting that it is
the statutory proscriptions which serve to limit and define the
sphere of legitimate administrative action, stated at footnote 1:

‘It should be observed that it is regulation 1605.1(b) and not
the statute (§ 2000 e-2(a)) that requires an employer to make
reasonable accommodation to the religious needs of its em-
ployees. As we have pointed out, the gravamen of an offense
under the statute is only discrimination. The authority of
EEOC to adopt a regulation interfering with the internal
affairs of an employer, absent discrimination, may well be
doubted.’’ (Emphasis the court’s).

" Alfred Blumrosen, a participant in many EEOC policy deter-
minations between 1965 and 1967, in Administrative Creativity:
The First Year of the Equal Employment Opportunity Commission,
38 Geo, Wash, L. Rev. 695, 702-3 (1970).

8

part[ed] ... from previous notions of what discrim-
ination is’’” and, in taking ‘‘its interpretation of Title
VII a step further than other agencies have taken
their statute’’, disregarded ‘‘intent . .. as crucial
to the finding of an unlawful employment practice.’’ "
In the process of this ‘creative interpretation’’ of
the law, the legislative history of the Act was regarded
as only an outer limit, not a guide, apparently based

12 Richard Berg, Deputy General Counsel of the EEOC from
1965 to 1967 and the Justice Department attorney who assisted the
Senate leadership during its consideration of Title VII, in his
review of Berger: Equality by Statute and Winter, Improving the
Economic Status of Negroes Through Laws Against Discrimination:
A Reply to Professor Sovern, 17 Amer. Univ. L. Rev. 379, 387.
388 (1968).

The importance of this departure from the established definition
of the term ‘‘discrimination’’ is underscored by the following state-
ment inserted in the Congressional Record during the debates on
Title VII by Senator Clark:

‘Objection: The language of the statute is vague and un-
clear. It may interfere with the employers’ right to select on
the basis of qualifications.

Answer: Discrimination is a word which has been used in
State FEPC statutes for at least 20 years, and has been used
in Federal statutes, such as the National Labor Relations Act
and the Fair Labor Standards Act, for even a longer period,
To discriminate is to make distinctions or differences in the
treatment of employees, and are prohibited only if they are
based on any of the five forbidden criteria (race, color, re-
ligion, sex or national origin) any other criteria or qualifica-
tion, is untouched by this bill.’’

110 Cong. Ree. 6997,

18 Samuel Jackson, a Commission member from 1965 to 1968, in
remarks to a meeting of the National Association for the Advance-
ment of Colored People Region 1 on September 23, 1967, reprinted
at CCH FEP Guide, { 8179 at 6312.

9

on the premise that the courts ‘were available to pre-
vent serious error’? and might sustain the EEKOC’s
interpretation of Title VII ‘‘partly out of deference
to the administrators.’’ ™

In these circumstances, the Guidelines do not repre-
sent an objective interpretation of Title VII. Rather,
they contain such a pervasive and definitive set of
standards” that they are tantamount to an assumption
of the substantive rule-making power which Congress
specifically denied to the EEOC." There is surely
serious reason to question their practicality and feasi-
bility. While test validation is a desirable objective,
it is often an elusive one because of the prohibitive
expense and difficulties involved, particularly in view
of the infant state of the art of industrial psychology,

4 Blumrosen, supra, n. 11 at 703.

To give a few examples: The Guidelines would even require
that, wherever ‘‘technically feasible’’, each separate ‘‘test’’ utilized
be validated for each racial component of the work-force, for each
separate unit of a multi-unit organization, and in such a manner so
that the results can be presented with the 1ecessary inclusions of
“graphical and statistical representations of the relationships be-
tween the test and the criteria, permitting judgments of the test’s
utility in making predictions of future work behavior’’. Guide-
lines, Sections 1607.4-1607.6. In addition, ‘‘alternative, suitable
hiring, transfer or promotion procedures’ to the particular “‘test’’
used must be shown to be ‘‘unavailable’’ and the particular ‘‘test’’
used must evidence ‘‘a high degree of utility’’ as defined by the
Guidelines. Section 1607.3. And the subject matter of the test,
notwithstanding a legitimate employer desire to promote many
employees from within, must be restricted only to those jobs which
employees ‘‘will probably within a reasonable period of time and in
a great majority of cases, progress to ...’’ Guidelines, Section
1607.4(¢) (1) (Emphasis added).

Section 713(a) of Title VIT, 42 U.S.C. 2000e-12(a). The word
“procedural”? in Section 713(a) was inserted by amendment on
the floor of the House to make clear that the Commission did not

have the power to make substantive regulations. 110 Cong. Ree.
2575 (1964).

10

in securing an adequate and representative sample.”
Given these limitations, it is unreasonable to require
employers to cease using tests which have been pro-
fessionally developed and selected by a testing special-
ist who has considered the specific job and manpower
needs of that employer. However, Petitioners seek
to foree Duke Power to cease using precisely such
tests and the Guidelines would require the same re-
sult of all similarly-situated employers. To para-
phrase Skidmore, the Guidelines demonstrate little
thoroughness in the Commission’s consideration, little
validity in its reasoning, a lack of consistency (as
discussed tnfra) with the EEOC’s earlier pronounce-
ments and a corresponding lack of persuasiveness.

B. Duke Power's High School Education Requirement
Constitutes a Valid Means of Employee Selection
Congress, when it enacted Title VII, was well aware
that the historic educational disadvantages of Negroes
and other minorities constituted an impediment to equal
employment opportunity.” It was also widely recog-

See, e.g., the testimony of Petitioners’ expert witness at Ap-
pendix, pp. 133a-137a, and the testimony of Respondent's expert
witness at Appendix, pp. 178a-18la. See also Barrett, supra n. 6,
at 94: ‘‘. . . tests for probably less than one job out of twenty
can be adequately validated, because there are few job categories
with enough whites and Negroes to make research for better tests

possible.’”

18 For example, in his Civil Rights Message of June 19, 1963,
U.S. Code Cong. and Admin. News, 88th Cong., Ist Sess., at 1526,
1531-4, President Kennedy noted that Negro workers and job seekers
suffered from a scarcity of jobs and educational disadvantage as
well as from employer and union prejudice. Secretary of Labor
Wirtz similarly stated in 1963 that

‘*Disproportionate unemployment among nonwhites is un-
questionably related to the fact that about one-third of the
3 million adults in this country who cannot read or write are
non whites; also to the fact that 25 percent (or 2.3 million)

i 2 — 61a ewer ~ eee a nein
ie

ll

nized that many employers required a high school
education as a hiring or promotion prerequisite. This
fact was specifically noted without criticism in a report
by the House Education and Labor Committee on an
earlier version of Title VIL." Also, a Senate Labor
Subcommittee chaired by Senator Clark, the co-
manager of Title VII during its consideration in the
Senate, received without comment a full description
of employer and union preference for high school
graduates.” And the House Judiciary Subcommittee
which reported the Civil Rights Act of 1964 heard
Secretary of Labor Wirtz testify that those who
dropped out of school at 16 ‘“‘never had the real ad-

of the nonwhites 25 years of age or older did not complete
5 years of schooling (compared with 7 percent of the adult
white population); and to the fact that almost half of the
adult nonwhites in the country today did not finish grade
school (compared with about 20 percent of the whites) ”’.

Hearings on Civil Rights, 88th Cong. Ist Sess., House Committee on
Judiciary, Subcommittee No. 5, Hearing Vol. 2 at p. 1491, (1963).

"HH. Rep. 1370 on H. R. 10144, 87th Cong. 2d Sess. at p. 2.
H. R, 10144 was essentially identical to Title VII as reported by
the House Judiciary Committee. See Additional Views of Hon.
George Meader, H. Rep. No. 94 on H. R. 7152, 88th Cong. Ist
Sess. at p. 57 (1963).

20 «* in every occupation for which data are shown high school
graduates earn more than men who quit school after the eighth
grade....

Why the difference? There are many reasons. High School
graduates have higher IQ’s. This is partly due to their greater
education. It may also reflect greater native intelligence and
aptitude to learn. But there are other reasons.

Employers give preference to high school graduates. With a
diploma a man can drive a bus for a transcontinental bus line;
without it he is lucky to get a job with Podunk Transit Co.
which pays much lower wages .... Unions also prefer high
school graduates.’’

Testimony of Special Assistant to the Director of the Bureau of
the Census, Senate Hearings on Equal Employment Opportunity,
88th Cong. Ist Sess. at pp. 324, 326 (1963).

ae oJ

LE he OI OE

12

vantages of the kind of education which would qualify
them for anything except unskilled work.’’* Indeed,
the use of educational requirements and tests was
frequently discussed during the formulation of Title
VII in the House.”

Yet, notwithstanding this ample recognition that
employer use of educational requirements was prev-
alent and in many eases had a disproportionately
adverse effect on minorities, no attempt was made
by Congress to require employers to justify the use
of such qualifications. In fact, Senator Case, the other
Senate co-manager of Title VII, gave explicit as-
surance that employer utilization of educational re-
quirements would not be affected by Title VII. The

1 Hearing on Civil Rights, 88th Cong. Ist Sess. House Com-
mittee on Judiciary, Subcommittee No. 5, Hearing Vol. 2, p. 1460
(1963).

2 See colloquy between Senator Williams and Congressman
Martin, Hearing on Equal Employment Opportuaity, 88th Cong.
Ist Sess., House of Representatives, General Subcommittee on Labor
of the Committee on Education and Labor at pp. 17-19 (1963);
testimony of Secretary of Labor Wirtz, id. at p. 466; the remarks
of Congressman Pucinski, id. at p. 24; the colloquy between Con-
gressman Pucinski and Reverend Hildebrand, id. at pp. 37-38;
and the discussions involving Samuel E. Harris, td. at pp. 228-
231, Wesley Stearns and J. C. MeCormack, td. at pp. 423-428 and
Murray Preston and Donald Mowbray, td. at pp. 434-438. See also
H.R. No. 570, 88th Cong., Ist Sess. at p. 5 (1963).

23** it would be ridiculous, indeed, in addition to being con-
trary to Title VII, for a court to order an employer who
wanted to hire electronics engineers with Ph.D’s to lower his
requirements because there were very few Negroes with such
degrees or because prior cultural or educational deprivation of
Negroes prevented them from qualifying.

... Title VII would in no way interfere with the right of an
employer to fix job qualifications and any citation of the
Motorola case to the contrary as precedent for Title VII is
wholly wrong and misleading.”’

110 Cong. Ree. 7026 (1964).

ree
/.

13

Congressional decision to permit the use of unvali-
dated educational attainment standards may have been
the product of an understandable legislative reluctance
to avoid the substantial disruptive effects that would
flow from imposing such a prohibition. It may have
been based on a compelling desire not to denigrate the
paramount significance of educational achievement in
the American way-of-life.* Whatever the reason, Con-
gress neither prohibited the use of educational re-
quirements nor declared that such standards must be
validated to be lawful. Given this history, it is not
surprising that the initial decision by the EEOC in
this area—the ‘‘contemporaneous construction”’ of
Title VII by those ‘tcharged with the responsibility
of setting its machinery in motion’? (Udall v. Tallman,
380 U.S. 1, 16)—held that educational qualifications
uniformly imposed were not Violative of the Act.”

The fact that Duke Power utilized an unvalidated
high school education requirement should not, there-
fore, in and of itself, be deemed sufficient to impute
to the Company the ‘intent’? to discriminate required
by Section 706(g) of Title VII. There must be, in
addition, independent evidence which demonstrates
that the Company’s use of educational requirements
was a mere pretext or subterfuge and not the product
of a bona fide, good faith business objective. For ex-
ample, such an unlawful motivation might be evidenced

“Cf. eg., the case, reported at Note, 68 Columbia L. Rev.,
supra n. 2, at p. 719, in which the Oftice of Federal Contract Com-
pliance ‘permitted a southern comp@uy to retain its requirement
of a high school diploma although the job in question clearly re-
quired less education. The reason Was that the Company was
attempting to force local teenagers» many of them Negroes, to
complete high school by removing the temptation of jobs for
drop-outs’’.

*G.C, Opin. 296-65, October 2, 1965, reprinted in CCH FEP
Guide § 17,251.0262.

GN EOS LT, PITTA ES PES OE -_

14

by the limited nature of the jobs for which the edu-
cational qualification is imposed as, for example, if
it applied to menial jobs which have no promotion
potential. Independent evidence in other instances
might be predicated on the timing of the institution
of the requirement or even the employer’s ‘‘overlay”’ of
poor performance in the area of race relations. Cf.,,
e.g., Colbert v. H-K Corp., supra. In the present
case, however, as the court below carefully delineated,
Duke Power’s high school educational requirement
was imposed nine years prior to the passage of the
Act; it was not applied to laborer jobs; the require-
ment was approved by an expert as a reasonable
means of selective employees with ‘‘the training, ability
and judgment’? required by the Company; the adop-
tion of the requirement adversely affected both whites
and Negroes; and the Company’s good faith in race
relations was manifested by its discontinuance of prior
discriminatory practices and its willingness ‘“‘to pay
for the education of incumbent Negro employees who
eould thus become eligible for advancement.’’ 420
F. 2d at 1232-1233.

C. Duke Power's Testing Requirement Constitutes a Valid
Means of Employee Selection

Employer utilization of tests as a means of employee
selection, notwithstanding that such tests may have
a disparate adverse effect on culturally disadvantaged
groups, was also a subject that was widely debated
during the legislative hearings on Title VII. During
Senate consideration of the House bill (H.R. 7152),
attention was specifically focused on this subject by
the decision of a hearing examiner for the Illinois
Fair Employment Practices Commission in Myart v.
Motorola, Inc., reprinted in 110 Cong. Ree. 5476-5479
(1964), which held that the continued use of a general

a

15

aptitude test, professionally developed for Motorola but
not differentially validated for disadvantaged and cul-
turally deprived groups, constituted a form of racial
discrimination.

The Senate sponsors of the Civil Rights Act re-
peatedly insisted that a Motorola decision could not
result under Title VII for two reasons: first, because
the power to interpret and enforce its provisions was
placed in the courts and not in the Equal Employment
Opportunity Commission,” and second, because ‘‘title
VII would not permit even a Federal court to rule
out the use of particular tests by employers because
they do not ‘equate inequalities and environmental
factors among the disadvantaged and culturally de-
prived groups.’ ’’** Senators Clark and Case, the co-
managers of Title VII, thus declared that “‘. . . [a]n }
employer may set his qualifications as high as he likes, |
he may test to determine which applicants have these
qualifications, and he may hire, assign, and promote on ;
the basis of test performance.’’ * :

eC T A I LONE LLG LALA LS SLOG A LD ELE RP IITA, —

26 As Senator Case stated: ‘‘Only a Federal court would have
the authority to determine whether or not a practice is in viola-
tion of the act and only the court could enforce compliance’’. :
110 Cong. Ree. 7026 (1964). See also id. at 6205 and 12641-2. '
Id. at 7026. :

87d. at 6997. In addition, Senator Clark placed the following :
objection and answer in the Record:

“Objection: The bill would make it unlawful for an employer
to use qualification tests based upon verbal skills and other
factors which may relate to the environmental conditioning of
the applicant. In other words, all applicants must be treated
as if they came from low income, deprived communities in
order to equate environmental inequalities of the culturally
deprived group.

Answer: The employer may set his qualifications as high
as he likes, and may hire, assign, and promote on the basis of
test performance.”’

16

Broad as these guarantees were, they did not satisfy
Senator Tower who introduced an amendment to in-
sure the right of an employer to use tests ‘‘designed
to determine or predict whether such individual is
suitable or trainable with respect to his employment
in the particular business or enterprise involved .. ,
for] whether such individual is suitable or trainable
within such business or enterprise’’ as long as such
tests were given ‘‘without regard to the individual’s
race, color, religion, sex or national origin.’’ * Senator
Case declared, however, that the amendment was
‘unnecessary . . . [and] would tend to complicate
and make more difficult dealing with cases of actual
discrimination ...’’ and Senator Humphrey assured
his colleagues that ‘‘[e]very concern of which this
amendment seeks to take cognizance has already been
taken care of in Title VIL.... These tests are legal.
They do not need to be legalized a second time’’. On
the basis of these statements, the amendment was voted
down.”

Two days later Senator Tower reintroduced his
amendment, containing the language of the present
Section 703(h), noting that there had been ‘‘agree-
ment in principle’? on his earlier amendment but that
‘“‘the language was net drawn as carefully as it should
have been.’’*' The revision provided that the amend-
ment’s sanction of professionally developed ability tests
would not extend to tests ‘‘designed, intended or used”
to discriminate on racial or other bases prohibited by
Title VII. Senator Humphrey accepted the revised
amendment as ‘‘in accord with the intent and pur-

2° Id. at 10879.
3° Jd. at 13030-13031, 13054.
31 Td. at 13246.

17

pose”’ of Title VII stating that, ‘‘[t]he Senator has
won his point.” ”

The Petitioners now contend that all that Senator
Tower won, and all that Title VII intended, was to
permit employers to utilize professionally developed
tests if they have been properly validated in ac-
cordance with the EEOC’s Guidelines. This would
indeed have been a hollow victory. It was the
very finding of a violation in Motorola, premised on
the absence of differential validation, that triggered
the Senate debates. Indeed, it was the express pur-
pose of Senator Tower’s amendment to prevent

*¢ . . an Equal Employment Opportunity Com-
mission ruling that would in effect unvalidate
tests of various kinds of employees by both private
business and Government to detericine the pro-
fessional competence or ability or trainability or
suitability of a person to do a job.*

It is also significant that contemporary observers
of the legislative process that produced Title VII did
not suggest that tests could only be used if they had
been validated. Thus Assistant Attorney General Nor-
bert Schlei stated in a briefing for the Bar Association
of the City of New York in early 1965:

‘“‘The entire question under this statute is whether
the test is being used as an instrument of dis-
crimination or not. Jf it is being used in an
honest attempt to find the best people, it is not
a violation of the statute.’’ (Emphasis added).*

82 Ibid.
88 Td. at 13019.

The Implications for Business of the Civil Rights Act of
1964 (Panel of Benetar, Knight, Schlei, Fowler), 20 Record of
the Assn. of the Bar of N. Y. 128 at 139 (1965).

18

Richard Berg similarly commented that Title VII
‘expressly protects the employer’s right to insist that
any prospective applicant, Negro or white, must meet
the applicable job qualifications. ... The issue in
any case where the use of an ability test is questioned
is not whether the test is professionally developed,
or whether it is a good test or a bad test, but whether
it is used in good faith or with intent to discrimi-
nate.’’* Professor Sovern also conceded that Title
VII permits employers to use tests which ‘‘require a
high degree of literacy when the job being tested for
does not’’ as long as the tests are not being used for the
purpose of racial discrimination.** The EEOC, in one of
its initial opinions construing Title VII, held that em-
ployers may use professionally developed tests, without
proof of validation, where there is no evidence of intent
to discriminate on the basis of race. And, as the court
below noted, ‘‘[a]Jn amendment [to Title VII] re-
quiring a ‘direct relation’ between the test and a
‘particular position’ was proposed in May, 1968, but
was defeated.’’ 420 F. 2d at 1235 citing Senate Report
No. 1111, May 8, 1968.

In sum, as in the case of educational requirements,
Congress was well aware in 1964 that tests were
widely used by many employers as a basis for employee
selection and that such tests often had an adverse
impact on disadvantaged and culturally deprived

35 Berg, Equal Employment Opportunity Under the Civil Rights
Act of 1964, 31 Brook. L. Rev. 62, 74-5 (1964).

36 Severn, Legal Restraints on Racial Discrimination in Employ-
ment, 73 (Twentieth Century Fund, 1966).

87 G.C. Opin., 461-65, Opin. Ltr. December 16, 1965, reprinted in
CCH FEP Guide, § 17,252.25.

ae

19

groups: The balance that Congress struck, however,
neither precluded the future utilization of such tests
nor required validation as a prerequisite to continued
employer use. Indeed, Congress specifically sanctioned
the use of tests as they had been instituted and applied
by Motorola, i.e., tests which had been professionally-
developed and used for legitimate business purposes
in an atmosphere free from any independent evidence
of a discriminatory intent.

Such independent evidence of discrimination might
relate to the menial nature of the jobs for which |
the test requirement is imposed, to the timing of its y
adoption of the test requirement or to the employer’s
general performance in the area of race relations. lt
might also consist of uatiiizing a test that has not been 2
developed by trained psychologists or which, in the ¢
view of qualified experts, would not reasonably suffice i
for the purposes intended. Even the failure to under-
take a comparison of the results of such tests with
actual employee performance might be sufficient to
infer a discriminatory intent. Where, however, as
here, no such evidence has been adduced, and pre-
sumably none exists which demonstrates a discrim-
inatory motive, there should be no finding of a vio-
lation of Title VII. As the court below concluded,
in addition to the evidence of the Company’s good
faith described at page 14, supra, the tests used by Duke
Power were, according to the testimony of an expert
witness, ‘‘professionally developed and . . . reliable
und valid’’ and the reason for adopting the testing
requirement, therefore, was ‘‘one of business neces-
sity’? rather than discrimination. 420 F.2d at 1233-4.
Moreover, Duke Power is presently in the process of
validating the tests here involved, a procedure which

CEOS LT RENEE 9 AAT BOL TE. EN ee eS

4
ke

@
x a co SE ORR: AGT ONCE AER TOI SR eee oie we SASS aaa |

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20

necessarily requires ‘‘a fairly good sized group’’ and
a considerable period of time. Appendix, pp. 179a-
181a.

CONCLUSION

For the foregoing reasons the decision of the court
below should be affirmed.

Respectfully submitted,

Miuton A. SMITH
General Counsel

ANTHONY J. OBADAL
Labor Relations Counsel
Chamber of Commerce of the

United States of America
1615 H Street, N. W.
Washington, D. C.

LAWRENCE M,. COHEN
Lederer, Fox and Grove
111 W. Washington Street
Chicago, Illinois 60602

Francis V. LOWDEN, JR.
Hunton, Williams, Gay, Powell
& Gibson
700 East Main Street
Richmond, Virginia 23212

GerarpD C. SMETANA
925 S. Homan Avenue
Chicago, Illinois 60607

Attorneys for the Amicus Curiae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0240%3A11. Public record. Not legal advice.