Amicus Curiae Brief — Albemarle Paper Co. v. Moody

Supreme Court brief1974

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Text

Questions presented

INDEX

Interest of the United States and the Equal

Employment Opportunity Commission -__._.

Statement

Summary of argument

Argument:

I. The court of appeals correctly heid that

back pay should be awarded to the iden-

tifiable victims of unlawful employ-

ment discrimination here to compensate

them for their economic injury caused

by the discrimination

The congressional policy reflected

Page

in Title VII requires that victims ~

of employment discrimination be

awarded back pay in compensation

for their economic loss unless spe-

cial circumstances would make

such an award unjust to the em-

ployer

Neither the absence of bad faith

non-compliance nor the tardiness

of plaintiffs’ back pay claim justi-

fies denying an award of back pay

to the injured victims of the dis-

criminatory employment practices

Argument—Continued

Back pay claims should be deter-

mined for all class members who

have sustained economic loss,

whether or not they filed individ-

ual charges with the Equal Em-

ployment Opportunity Commis-

sion

H. Albemarle’s testing program is unlaw-

ful because its tests operate to exclude

blacks and have not been shown to bear

a demonstrable relationship to success-

ful performance of the jobs for which

they are used

Conclusion

Albemarle’s tests have a dispropor-

tionate adverse impact on blacks___

The company’s testing program

was not shown to be job-related __

1. The court of appeals correctly

looked to the EEOC Guidelines

for guidance in assessing the

adequacy of Albemarle’s vali-

dation study

2. Albemarle’s validation study

was not conducted in accord-

ance with professionally accept-

ed standards _ i

3. The study does not, in any

event, demonstrate that the

tests are related to the jobs for

which they are used

ne oe

Page

CITATIONS

_ Cases: ’ Page

Baxter v-Savannah Sugar Refining Corp.,

495 F. 2d 4387 27

Bowe v. Colgate-Palmolive Co., 416 F. 2d

711- 20, 21, 31

Carey v. Greyhound Bus Co., 500 F. 2d

NI ce ee 27

Duhon v. Goodyear Tire & Rubber Co.,

494 F. 2d 817 42

Franks v. Bowman Transportation Co., |

495 F. 2d 398, certiorari granted on

other issues, March 24, 175, No. 74-

728 31, 42

Griggs v. Duke Power Co., 401 U.S. 424. 11, 14,

28, 34, 36,

39, 42, 48

Head v. Timken Roller Bearing Co., 486

FO Bee sattietene rae Me ry Et

Hecht Co. v. Bowles, 321 U.S. 321. 12, 19, 20

J. I. Case Co. v. Borak, 377 U.S. 426___ 24

Johnson v. Goodyear Tire & Rubber Co.,

2 Sf See cee somone 21, 27, 32, 42

Kober v. Westinghouse Electric Corp.,

480 F. 2d 240 26

Lawn v. United States, 355 U.S. 339__ 36

LeBlane v. Southern Bell Telephone &

Telegraph Co., 460 F. 2d 1228, certio-

rari denied, 409 U.S. 990 _.... 26

Louisiana v. United States, 380 U.S. 145_ 24

Manning v. International Union, 466 F.

2d 812, certiorari denied sub nom.

Manning v. General Motors Corp., 410 -

U.S. 946 26

Miller v. International Paper Co., 408 F.

2d 283 31

Cases—Continued Page

Mitchell v. Robert DeMario Jewelry, Inc.,

361 U.S. 288 12,19

National. Labor Relations Board v. J. H.

Rutter-Rex Mfg. Co., 396 U.S. 258. 22, 27

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 18, 24, 25, 28

Oatis v. Crown Zellerbach Corp., 398 F.

2d 496 31

Pettway v. American Cast Iron Pipe Co.,

494 F. 2d 211 21, 27, 32

Phelps Dodge Corp. v. National Labor

Relations Board, 313 U.S. 177 ___._.. 12, 22

Porter v. Warner Holding Co., 328. U.S.

395 19

Robinson v. Lorillard Corp., 444 F. 2d

791 i 10, 21, 27, 30

Rogers v. International Paper Co., 9

[CCH] EPD § 9865 42

Rosen v.. Public Service Electric and Gas

Co., 409- F. 2d 775 30

Rosen vi Public Service Electric and Gas

Co., 477 F. 2d 90 _ 21, 27

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

348 43

Schaeffer v. San Diego Yellow Cabs, Inc.,

462 F. 2d 1002 26

Sprogis v. United Air Lines, Inc., 444 F.

2d 1194, certiorari denied, 404 U.S.

991 21, 27

United States v. Burr, 25 Fed. Cas. 30__. 20

United States v. Georgia Power Co., 474

F. 2d 906 21, 40, 41

United States v. Hayes International

- Corp., 456 F. 2d 112 30

Cases—Continued Page

United States v. N.L. Industries, Inc., nee

479 F. 2d 354 _.... 23, 27

United States v. St. Louis-San Francisco

Ry. Co., 464 F. 2d 301 - 27

Vulcan Society v. Civil Service Commis-

sion, 490 F. 2d 387 15, 40

Waters v. Wisconsin Steel Works, 502 F.

2d 1309 s 27

Young v. Edgcomb Steel Co., 499 F. 2d

__. Sethe 42

Statutes :

Civil Rights Act of 1964, 78 Stat. 253, as

amended, 42 U.S.C. 2000e, et seq. 2,3

Section 706, 42 U.S.C. 2000e-5 __.. 31

Section 706(g), 42 U.S.C. (Supp.

III) 2000e-5(g) 2, 17, 19; 2,

21, 22, 23

Section casean ee 42 U.S.C. 2000e-12

(b) - 26

Equal Employment Opportunity Act of

A 1972, 86 Stat. 103 ; 21

National Labor Relations Act, Section 10

(c), 29 U.S.C. 160(c) - ae 22

Miscellaneous:

APA, Standards for Educational and Psy-

chological Tests and Manuals (1966)... 39, 42,

Civil Service Commission Regulations (37

Fed. Reg. 21557-21559) 40, 42, 45

Miscellaneous—Continued Page

118 Cong. Rec.:

7166-7169 ‘ : 21

a CSYEEe Raa sree 12, 21, 30, 33

7563-7567 21

7565 12, 21, 30, 33

Department of Labor Order: .

41 C.F.R. Part 60-3 ___ 40

41 C.F.R. 60-3.6 : 42

ee ee En 26

34 Fed. Reg. 13368 26

Federal Rules of Civil Procedure:

Rule 53 32

Rule 54(c) Pa 30

Guidelines on Employee Selection Proce-

dures:

29 C.F.R. Part 1607 34, 36

29 C.F.R. 1607.4(c) 42

29 C.F.R. 1607.4(c) (1) ‘45

pete Bs oe fo) 37, 44, 47

29 C.F.R. 1607.5(b) (3) 36, 42

29 C.F.R. 1607.5(b) (4) — 37

S. Rep. No. 415, 92d Cong., Ist Sess. 33

Iu the Supreme Court of the United States

OcTOBER TERM, 1974

No. 74-389

ALBEMARLE PAPER COMPANY, ET AL., PETITIONERS

Vv.

JOSEPH P. Moopy, ET AL.

No. 74-428

HAuirax LocAL No. 425, UNITED PAPERMAKERS

AND PAPERWORKERS, AFL-CIO, PETITIONER

uv.

JOSEPH P. Moopy, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE

QUESTIONS PRESENTED

1. Whether a district court, in determining

whether to award back pay to members of an iden-

tifiable class of persons who have suffered economic

injury because of racially discriminatory employment

practices in violation of Title VII of the Civil Rights

Act of 1964, must exercise its discretion in a manner

consistent with the remedial purposes of the Act.

2. Whether petitioner Albemarle’s employment

selection tests are unlawful because they have a dis-

proportionate adverse impact on blacks and have not

been shown to be substantially job-related.

INTEREST OF THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Pursuant to Title VII of the Civil Rights Act of

1964 and Executive Order 11246, the Equal Employ-

ment Opportunity Commission, the Attorney Gen-

eral, and other branches of the federal government

have responsibility for enforcement of federal laws

providing for equal employment opportunities. Al-

though this case was brought by private plaintiffs,

the issues concerning back pay and testing raised

here are similar to issues that arise in suits brought

by the government. The resolution of the issues

presented in this case will directly affect the govern-

ment’s enforcement responsibilities.

STATEMENT

1. On August 25, 1966, respondents, after they

had received a right-to-sue letter from the Equal

3 ~

Employment Opportunity Commission, filed a class

action’ against their employer, Albemarle Paper

Company (petitioner in No. 74-389), and their union,

Halifax Local No. 425 (petitioner in No. 74-428),°

alleging that the defendants were engaged in racially

discriminatory employment practices in Violation of

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. 2000e, et seg. The complaint sought a

permanent injunction against those practices and

prayed for “such other additional relief ag may ap-

pear to the Court to be equitable and just” (A. 10).

The alleged discriminatory employment practices

took place at Albemarle’s paper mill in Roanoke

Rapids, North Carolina. The principal business of

the paper mill is the production of kraft paper, pulp,

1The district court defined the classes represented by re-

spondents as “(1) all Negroes employed at the Roanoke

Rapids plant of Albemarle Paper Company as of June 30,

1967; (2) all Negroes employed at said plant after June 30,

1967, except those whose initial permanent positions were not

job classifications limited to or predominantly staffed by

Negroes; and (3) all Negroes who may hereafter apply for or

be employed at said Roanoke Rapids plant who may be affected

by the alleged racially discriminatory employment practices

of the defendants” (A. 474).

2 The original three defendants were Albemarle Paper Com-

pany (Virginia), the United Papermakers and Paperworkers,

and Papermakers Halifax Local 425. The international union

was subsequently dismissed as a defendant (A. 16-20). In

1968, the company’s assets were sold and transferred in a

series of transactions. As a result, Albemarle Paper Company

(Delaware), Hoerner Waldorf Corporation, Ethyl Corpora-

tion, and First Alpaco Corporation were joined as defendants

(A, 30-39).

and allied products (A. 88). The mill has 11 func-

tionally discrete departments (A. 477, 514), and each

department has one or more functionally related lines

of progression consisting of several job categories (A.

88, 477). The mill. has 17 lines of progression and

more than 100 job classifications (A. 477, 514). In

all but exceptional circumstances, employees. enter

a line of progression at the lowest paying job, and

vacancies are filled by promotions from within each

line of progression on the basis of seniority and

ability (A. 477).

In addition to the lines of progression, the mill,

prior to 1968, had two “extra boards”—reservoirs

of employees who were available to staff the lowest-

level jobs in the lines of progression. The General

Extra Board supplemented the skilled lines of pro-

gression; the Utility Extra Board supplemented the

unskilled lines of progression (A. 485). The extra

boards were staffed by new employees and employees

who had been laid off from other jobs and were await-

ing recall (ibid.). In 1968, the two extra boards

were merged (A. 486).

Promotions and demotions in the plant are gov-

erned by job seniority. When a vacancy occurs, the

first opportunity to fill it is ordinarily given to the

employee in the next lowest job category within the

line of progression who has the greatest seniority in

that job, if he possesses the necessary ability, ex-

perience, and training (A. 477-478). oa

Albemarle uses personnel tests in selecting appli-

cants for employment in certain jobs. Since 1963,

applicants for 18 lines of progression in eight depart-

ments* have generally been required to have a high

school education and to score successfully on the

Revised Beta Examination—a nonverbal test devel-

oped during World War I to measure the intelli-

gence of illiterate and non-English-speaking persons

—and the Wonderlic A or B Series examinations—

short, verbal tests used to measure general mental

ability (A. 100-101, 487-488, 514).

2. After a trial, the district court found that

“(p]rior to January 1, 1964, Albemarle’s lines of

progression were strictly segregated on the basis of

race” (A. 480). Approximately 86 of the 100 jobs

at the plant were “traditionally reserved for white

persons” (A. 477). The court found that “[t]hose

lines of progression to which black employees were

traditionally assigned were lower paying than the

‘white’ lines of progression” and that “[t]he racial

identifiability of jobs and departments in lines of

progression were maintained subsequent to the effec-

tive date of Title VII (July 2, 1965)” (A. 480). The

extra boards were also segregated on the basis of

race. As of June 1967, there were 62 white and two

* These figures were derived by the district court and the

court of appeals from a stipulation filed on July 25, 1971 (A.

86-106). Altough the court of appeals stated that examinations

are required for employment in 14 lines of progression (A.

514), both the stipulation and the district court’s opinion

indicate that 18 is the correct number. Albemarle states (Br.

13) that, as a result of changes in mill operations, the tests

were administered, by the time of trial, to applicants for only

eight lines of progression in four departments.

- 6

black employees assigned to the General Extra Board; *

no whites and 50 blacks were assigned to the Utility

Extra Board (A. 484-485).

Although a 1968 collective bargaining agreement

effected some “changes in the lines of progression

{that] had the effect of eliminating, to some extent,

their strictly segregated composition,” “black em-

ployees were still ‘locked’ in the lower paying job

classifications” (A. 485). Similarly, while the two

extra boards were merged in 1968, “[e]mployees on \

the merged board still retain recall rights to jobs

and lines of progression which they held prior to

being reduced to the call board,” so that “black

employees are recalled to black jobs and white em-

ployees are recalled to white jobs” (A. 486).

The court concluded that “Albemarle practiced

racially discriminatory employment practice[s] prior

to July 2, 1965,” and that “the effects of this dis-

crimination has [sic] been perpetuated” (A. 495-

496). The court stated (A. 496):

Although overt racial discrimination ceased sub-

sequent to the effective date of Title VII, the

effects of this racial discrimination have not been

eradicated. The job seniority system has re-

sulted in blacks occupying the lower paying .

positions within an integrated line of progres-

sion. Other lines of progression remain essen-

tially segregated because of the inability of

black employees to meet the educational and

testing requirements to transfer into other, high-

er paying lines of progression.

The court ordered the defendants “to abolish the ex-

isting seniority system based substantially’ on job

seniority” and “to implement and permanently con-

tinue a system of plant seniority * * * so that * *.”

when employees of the affected class are competing

with employees not of the affected’ class, and the

qualifications of the competitors are relatively equal,

plant seniority rather than job seniority shall gov-

ern” (A. 499-500). |

The district court declined to award back pay to

members of the class who had suffered economic in-

jury as a result of the discriminatory employment

practices that’ locked them into the lower paying

jobs to which they had been assigned on the basis

of race. The court rested its denial of back pay on

two considerations. First, “there was no evidence

of bad faith non-compliance with the Act” (A. 498).*

Second, the plaintiffs did not, specifically seek back

pay in their complaint * and did not assert a back

pay claim until “nearly five years after the institu-

tion of this action” (ibid.). “[T]he defendants

‘The court stated that Albemarle had begun in 1964 to re-

cruit blacks for its Maintenance Apprentice Program, that it

merged some lines of progression on its own initiative and

took certain steps to correct abuses in accordance with de-

veloping judicial interpretations of the Act, and that it paid

higher wages for all levels of employment than did other in-

dustries in the area (A. 498).

5In their memorandum in opposition to a motion for sum-

mary judgment, plaintiffs stated that “ {[nJo money damages

are sought for any member of the class not before the court”

(A. 18-14).

would be substantially prejudiced by the granting of

‘such affirmative relief,” the court stated, because they

“might have chosen to exercise unusual zeal in hav-

ing this court determine their rights at'an earlier

date had they known that back pay would be at issue”

' (ibid.).

The court also rejected venililibate’ , contention

that Albemarle’s testing requirements are unlawful

because they have a disproportionate adverse impact

on blacks and were not shown to be related to job

performance. It concluded that “[t}he personnel tests

administered at the plant have undergone validation

studies and have been proven to be job related” (A.

497).

' The validation study conducted by Albemarle cov-

ered 10 job groups in 8 of the 13 lines of progression

for which the tests are required (A. 514). Albe-

marle’s expert conducted no. job analysis of the jobs

covered by the study.’ The sample of employees

‘tested for the study were selected from the top and

middle ranges of the lines of progression (A. 490).

Their scores on each of the three tests use by Albe-

marle—Beta, Wonderlic A, and Wonderlic B—were

compared with job performance ratings assigned to

them by two supervisors, who rated them according

to this standard: “Excluding a man’s attitude, just

how well the guy can do the job when he’s feeling’

right” (A. 195, 514-515). The study found “[s]ig-

° The siiiat spent only about a half day at the plant’ (A.

174). He had no written job descriptions (ibid.) and did not

speak with any supervisors while he was at the mill (A. 175).

“

nificant correlations * * * for at least one of the three

tests investigated for nine of the ten groups of jobs”

(A. 431). The use of all three tests was found valid

only for one of the 10 job groups, and the use of the

Beta together with either Wonderlic A or Wonderlic

B—the use made of the tests by Albemarle ‘“—was

found valid only for two of the 10 job groups (A.

432).

On the basis of that. validation study, the district

court found that “{t]he defendants have carried the

burden of proof” in demonstrating the job-related-

ness of the company’s testing program (A. 497). The

court found, however, that “the high school education

requirement used in conjunction with the testing re-

quirements is unlawful in that ‘the personnel tests

alone are adequate to measure the mental ability and.

reading skills required for the job classifications”

(A. 497). It accordingly enjoined Albemarle from

“requiring a high school education as a prerequisite

for employment, promotion or transfer” (A. 502).

3. The court of appeals reversed with respect to

the back pay and testing issues (A. 512-537).’

On the back pay issue, the court held that neither

plaintiffs’ delay in making a claim for back pay nor

the lack of evidence of bad faith noncompliance with

7 All applicants are given the Beta examination and both

series of the Wonderlic test. They are required to score

_ gatisfactorily both on the Beta and on either the Wonderlic

A or the Wonderlic B (A. 220).

* Petitioners did not appeal any aspect of the district

court’s order.

the Act “is sufficient to justify the district court’s

refusal to award back pay” (A. 520). Relying on

its rejection of similiar contentions in Robinson v.

Lorillard Corp., 444 F. 2d 791, the court of appeals

reasoned that Albemarle was not substantially preju-

diced by the plaintiffs’ delay in seeking back pay and

that a showing of bad faith is not required for an

award of back pay, because the award is designed

not to penalize the employer but to compensate the

victims of the discrimination for their tangible eco-

nomic loss.

The court rejected the contention that the denial

of back pay should nevertheless be sustained as

within the discretion of the district court. “Where

a district court fails to exercise discretion with an

eye to the purposes of the Act, it must be reversed”

(A. 523). The court stated that, in view of “the

compensatory nature of a back pay award and the

strong congressional policy embodied in Title VIT’—

which favors making the victims of the unlawful

discrimination economically whole so far as possible—

“a plaintiff or a complaining class who is successful

in obtaining an injunction under Title VII of the

Act should ordinarily be awarded back pay unless

special circumstances would render such an award

unjust? (A. 523-524). It held that “there are no such

special’ circumstances here” (A. 524).

With respect to testing, the court stated: “The

effect of the district court’s approval of Albemarle’s

procedure is to approve a validation study

done without job analysis, to allow Albemarle to

require tests for 6 lines of progression where there

has been no validation study at all, and to allow

Albemarle to require a person to pass two tests for

entrance into 7 lines of progression when only one

of those tests was validated for that line of progres-

sion. We think this was error” (A. 515). The court

concluded that the tests were not shown to have

“a manifest relationship” to the jobs for which they

are used by Albemarle (A. 516). Since “[t]he plain-

tiffs made’ a sufficient showing below that Albemarle’s

testing procedures have a racial impact” (A. 515),

and since Albemarle failed to show that the tests are

substantially job related, it followed under Griggs v.

Duke Power Co., 401 U.S. 424, that the-testing pro-

cedure is unlawful.”

SUMMARY OF ARGUMENT

A. When a district court finds that an employer

ora labor union has intentionally engaged in unlaw-

ful employment practices, it may enjoin those prac-

tices and may “order such affirmative action as may

be appropriate, which may include * * * reinstate-

ment or hiring of employees, with or without back

pay” (42 U.S.C. (Supp. III) 2000e-5(g)). The

court’s discretion with respect to back pay awards

must, however, be exercised in accordance with “the

® Judge Boreman dissented on the testing issue (A. 524-

582), and Judge Bryan dissented on the back pay issue (A.

582-537).

large objectives of the Act” (Hecht Co. v. Bowles,

321 U.S. 321, 331), for it is the duty of a court of

equity “to provide complete relief in light of the

statutory purposes” (Mitchell v. Robert DeMario

Jewelry, Inc., 361 U.S. 288, 292).

The objectives of Title VII are to eliminate dis-

criminatory employment practices and, so far as pos-

sible, to compensate the victims of employment dis-

crimination for their economic loss caused by (the

discrimination. The district court’s duty “to fashion

the most complete-relief possible” (see 118 Cong. Rec.

7168, 7565) upon a finding of employment discrim-

ination ordinarily means that it must both enjoin

the unlawful practices and award back pay to the

injured victims. “Only thus can there be a restora-

tion of the situation, as nearly as possible, to that

which would have obtained but for the illegal discrim-

ination” (Phelps Dodge Corp. v. National Labor Re-

lations Board, 313 U.S. 177, 194). Moreover, the

reasonably certain prospect that back pay will be

awarded provides an important economic incentive

for employers and unions to comply voluntarily with

the provisions of Title VII and thereby to bring a

prompt end to employment discrimination.

It follows that the Act’s policies of making the

victims whole and deterring future discrimination re-

quire back pay to be awarded to the injured em-

ployees unless, for substantial reasons that are con-

sistent with the Act’s purposes, awarding back pay

would be unjust to the employer or the union. That is

the standard that the court of appeals applied here

and that this Court applied with respect to awards

of counsel fees under Title II of the Act in Newman

v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402.

B. The district court’s reasons for denying back

pay in this case do not satisfy that standard. Since

the remedial purpose of Title VII is to compensate

the injured victims of employment discrimination and

not to punish the employer, the absence of “bad faith

non-compliance” (A. 498) does not justify denying

back pay. A requirement that injured employees

prove malice or deliberate recalcitrance would be

an unwarranted obstacle to effective relief and would

weaken the incentive for voluntary compliance by

making back pay awards depend upon the applica-

tion of an uncertain, subjective standard. This Court

rejected a similar standard for the award of counsel

fees in Newman v. Piggie Park Enterprises, Inc.,

supra, and it should reject it here as well.

Nor was the plaintiffs’ delay in asserting a back

pay claim on behalf of the entire class of injured

employees a proper basis for denying back pay. The

defendants were aware of that claim at least one

year prior to trial, and their defenses to the claim

were identical to their defenses with respect to in-

junctive relief. There is no foundation for the dis-

trict court’s speculation that the defendants “might

have chosen to exercise unusual zeal” (A. 498) in

expediting a trial if they had known of the back pay

claim earlier, nor is there any support for petitioners’

assertion that discovery was made more difficult by

plaintiffs’ delay. In the absence of a showing of sub-

stantial prejudice, that delay did not affect the dis-

trict court’s duty to award complete relief..

C. Back pay relief is not limited to those mem-

bers of the class who have filed individual charges

with EEOC. The filing of a single charge alleging

unlawful employment practices fully satisfies the pur-

poses of Title VII’s filing requirement by putting

the employer on notice of the charge and invoking

EEOC’s conciliation functions. There is no reason

to require the filing of numerous identical claims.

Congress considered and rejected precisely such a

requirement when it enacted the 1972 amendments

to Title VII.

A. That Albemarle’s tests operate disproportion-

ately to-exclude blacks was implicit in the district

court’s lengthy discussion concerning the job-related-

ness of the tests and was the subject of an explicit

finding by the court of appeals (A. 515). Albemarle

argues that the plaintiffs failed to make an adequate

showing that the tests have a racially disparate im-

pact, but that issue was not presented in the pe-

tition for a writ of certiorari and is not properly

before this Court. In .any event, the record supports

the court of appeals’ finding.

B. The court of appeals correctly concluded that

Albemarle did not carry its burden of showing that

its present use of the tests “have a manifest rela-

tionship to the employment in question” (Griggs v.

Duke Power Co., 401 U.S. 424, 482). In making

¢?

that determination, the court of appeals properly

looked to the EEOC Guidelines as “a helpful sum-

mary of professional testing standards” (Vulcan So-

ciety v. Civil Service Commission, 490 F. 2d 387,

394, n. 8 (C.A. 2)) and made proper use of the

Guidelines in assessing the adequacy of Albemarle’s

test validation study.

In a Title VII case within the scope of EEOC’s

enforcement jurisdiction, it is particularly appropri-

ate for a court to rely upon the professional ex-

pertise reflected in the Guidelines. And where, as

here, tiie pertinent sections of the Guidelines ac-

curately summarize the professionally accepted stand-

ards for test validation and no showing is made that

there are significant differences of opinion within the

profession, an employer whose validation study de-

parts from the Guidelines should bear the heavy bur-

den of showing that the departure was justified and

that the study was nevertheless adequate to prove

that the tests are job-related.

Albemarle’s study was not conducted in accord-

ance with the Guidelines, and the company neither

justified the departure nor demonstrated that the

study was otherwise adequate. Albemarle’s expert

failed to conduct a job analysis to determine the skills

and abilities required for successful performance of

the jobs he studied; under generally recognized pro-

fessional standards, a job analysis is an essential

first step in a proper employment test validation

study. Its absence in Albemarle’s study made it nec-

essary to rely on a vague, subjective standard for

supervisory ratings of employees and made it impos-

sible to tell whether the abilities rated by the super-

visors and measured by the tests are the ones that

are necessary to perform the jobs at the mill.

The study also departed from professional stand-

ards because Albemarle’s expert did not take precau-

tions to ensure that the tests were administered under

controlled and standardized conditions and that the

raters were kept unaware of the employees’ test

scores. Moreover, the jobs studied were at the higher

levels in the plant, although applicants for employ-

ment naturally begin work at the lower levels. Al-

bemarle did not show that it was reasonable to

validate the tests for the jobs studied rather than

those that a new employee would perform.

Even if the study had been conducted properly,

however, its results do not show that the tests are

related to the jobs for which they are used. The

study covered only eight of the 13 lines of progres-

sion for which tests are required, and it found cor-

relations supporting Albemarle’s present use of the

tests for only two of the 10 job groups studied. Al-

bemarle’s claim that it is necessary to ensure that

all applicants are qualified for each line of progres-

sion in the plant is not supported by the record.

ARGUMENT

THE COURT OF APPEALS CORRECTLY HELD

THAT BACK PAY SHOULD BE AWARDED TO

THE IDENTIFIABLE VICTIMS OF UNLAWFUL

EMPLOYMENT DISCRIMINATION HERE TO COM-

PENSATE THEM FOR THEIR ECONOMIC INJURY

CAUSED BY THE DISCRIMINATION

The district court found that petitioners engaged

in unlawful discriminatory employment practices that

confined the black employees at Albemarle’s paper

mill to the lower paying, less desirable jobs to which

they had been assigned on the basis of their race (A.

480-486, 496). The court was therefore authorized

under Section 706(g) of the Act, 42 U.S.C. (Supp.

III) 2000e-5(g), to enjoin the unlawful practices

and to “order \such affirmative action as may be ap-

propriate, which may include * * * reinstatement or

hiring of employees, with or without back pay * * *.”

Although the victims of petitioners’ racially discrim~

inatory practices suffered tangible economic loss as

a result of the discrimination, the district court re-

fused to award them compensatory back pay because

it found “no evidence of bad faith non-compliance

with the Act” and because respondents’ initial fail-

ure specifically to request back pay on behalf of the

class they represent may have induced petitioners not

to exercise “unusual zeal in having this court deter-

mine their rights at an earlier date” (A. 498).

The court of appeals held that the district court’s

denial of back pay for those reasons was not a proper

exercise of its discretion under the Act. That discre-

tion, the court stated, must be exercised “with an eye

to the purposes of the Act” (A. 523) and in a way

that gives the fullest possible effect, consistent with

fairness, to the congressional policy of making whole

the victims of employment discrimination.

Petitioners contend (Albemarle Br. 50-61; Halifax

Br. 21-33) that the court of appeals unduly restricted

the scope of the district court’s statutory discretion

in determining whether to award back pay and that

the district court’s refusal to award back pay in this

case should have been sustained under “traditional

equitable principles” (Albemarle Br. 53). Albemarle

also argues (Br. 61-66) that back pay may not, in

any event, be awarded to individual members of the

affected class of injured employees who have not

themselves filed charges with the Equal Employment

Opportunity Commission. In our view, petitioners are

wrong on both counts.

A. The Congressional Policy Reflected In Title VII.

Requires That Victims Of Employment Discrimina-

tion Be Awarded Back Pay In Compensation For

Their Economic Loss Unless Special Circumstances

Would Make Such An Award Unjust To The Em-

ployer

The issue here is not whether the district courts

have discretion to award or withhold back pay, for

the Act clearly commits that decision to the sound

discretion of the trial judge. Nor is the issue wheth-

er that discretion “is governed by traditional equi-

table principles” (Albemarle Br. 53); Congress in-

tended in Section 706(g) to invest the courts with

full, traditional equity jurisdiction to fashion effec-

tive relief upon a finding of unlawful employment

practices. Cf. Porter v. Warner Holding Co., 328

U.S. 395, 398, 400; Mitchell v. Robert DeMario

Jewelry, Inc., 361 U.S. 288, 291-292.

The issue, rather, is the extent to which the district

courts’ exercise of discretion under the Act is cir-

cumscribed by, and must be responsive to, the legis-

lative objectives of Title VII. It is settled, of course,

that traditional equity jurisdiction does not empower

a court to take whatever action it wishes. Discre-

tion must be exercised according to appropriate

standards. In the enforcement of a statutory scheme,

the courts must exercise their discretion “in light of

_ the large objectives of the Act”; their discretionary

remedial determinations must “refiect an acute

awareness” of the congressional policy (Hecht Co. v.

Bowles, 321 U.S. 321, 331). It is “the historic power

of equity to provide complete relief in light of the

statutory purposes” (Mitchell v. Robert DeMario

Jewelry, Inc., supra, 361 U.S.-at 292).

Albemarle thus properly concedes that a district

court’s discretion under Section 706(g) of the Civil

Rights Act of 1964 “must be exercised consistently

with legislative objectives” (Br. 53). It seeks to avoid

the thrust of that principle, however, by arguing

that the legislative objective was “to leave resolution

of complex remedial problems to the traditional, dis-

cretionary powers of the federal courts of equity”

(Br. 54).

But that argument begs the question. It merely

restateg,a proposition that no one disputes—that the

district courts have discretion in determining whether

to award back pay. As Chief Justice Marshall stated

long ago, to say that the matter is within a court’s

discretion means that it is addressed not to the

court’s “inclination, but to its judgment; and its

judgment is to be guided by sound legal principles”

tives of the Act” (Hecht Co. v. Bowles;>stpra, 321

U.S. at 331) in accordance with which that discre-

tion must be exercised?

The large objectives of Title VII are to eliminate

discriminatory employment practices and, as far as

possible, to restore the victims of employment. dis-

crimination to the situation they would have been

in but for the discrimination. “The clear purpose of

Title VII is to bring an end to the proscribed dis-

criminatory practices and to make whole, in a pecu-

niary fashion, those who have suffered by it” (Bowe

v. Colgate-Palmolive Co., 416 F. 2d 711, 720 (C.A.

7)).

Albemarle’s contention.that “the Congressional em-

phasis was on the prospective elimination of discrim-

inatory practices and not on reparations” (Br. 54)

rests on its inference from the word “may” in the

statutory phrase “may include * * * reinstatement

or hiring of employees, with or without back pay”

(Section 706(g)). But that inference is unjustified.

The same word is used in connection with injunctive

relief: “the court may enjoin the respondent from

engaging in such unlawful practice” (emphasis add-

ed). Every court of appeals that has considered the

question has correctly concluded that the Act’s pur-

poses are both to eliminate employment discrimina-

tion and to compensate the victims.”

The “make whole” purpose of Title VII is con-

firmed by the legislative history of the Equal Em-

ployment Opportunity Act of 1972, 86 Stat. 103,

which reenacted Section 706(g) with changes not

relevant here. The Section-by-Section Analysis of the

1972 Act, presented to the House and the Senate at

the time the Conference Report on the Act was sub-

mitted to each body (118 Cong. Rec. 7166-7169, 7563-

7567), states with respect to Section 706(g) (id. at

7168, 7565; emphasis added) :

The provisions of this subsection are intended

to give the courts wide discretion exercising

their equitable powers to fashion the most com-

plete relief possible. 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 dis-

10 See, ¢.g., Rosen Vv. Public Service Electric and Gas Co.,

477 F. 2d 90, 96 (C.A. 3); Robinson v. Lorillard Corp., 444

F. 2d 791, 804 (C.A. 4); Pettway v. American Cast Iron Pipe

Co., 494 F. 2d 211, 252 (C.A. 5); Johnson v. Goodyear Tire

& Rubber Co., 491 F. 2d 1364, 1875 (C.A. 5); United States

v. Georgia Power Co., 474 F. 2d 906, 921 (C.A. 5); Head v.

Timken Roller Bearing Co., 486 F. 2d 870, 876 (C.A. 6);

Bowe v. Colgate-Palmolive Co., supra, 416 F. 2d at 720;

Sprogis v. United Air Lines, Inc., 444 F. 2d 1194, 1202 (C.A.

7), certiorari denied, 404 U.S. 991.

crimination whole, and that the attainment of

this objective rests not only upon the elimination

of the particular unlawful employment practice

complained of, but also requires that persons

aggrieved by the consequences and effects of the

unlawful employment practice be, so far as pos-

sible, restored to a position where they would

have been were it not for the unlawful discrimi

nation.

Injunctive relief serves the purpose of eliminating

the discriminatory practices prospectively. An award

of back pay serves the purpose of making the victims

financially whole. In view of the Act’s objectives, the

district court’s duty “to fashion the most complete

relief possible” (ibid.) ordinarily means that it must

both enjoin the unlawful practices and award back

pay to those who have suffered financial injury as

a consequence of the discrimination. As this Court

said with respect to back pay awards under Section

10{c) of the National Labor Relations Act, which

was the model for Section 706(g) of the Civil Rights

Act of 1964, “compensation for the loss of wages”

is “generally require[d]” to effectuate the policies of

that Act, because “[o]nly thus can there be a restora-

tion of_the situation, as nearly as possible, to that

which would have obtained but for the illegal dis-

crimination” (Phelps Dodge Corp. v. National Labor

Relations Board, 313 U.S. 177, 194). See also Na-

tional Labor Relations Board v. J. H. Rutter-Rex

Mfg. Co., 396 U.S. 258, 263.

Moreover, compelling practical considerations sup-

port the view that back pay should normally be

awarded to redress proven injuries. The reasonably

certain prospect that back pay. will be awarded pro-

vides the only substantial economic incentive to en-

courage voluntary compliance with Title VII and

therefore a swift end to unlawful employment dis-

crimination. Back pay awards “provide the spur or

catalyst which causes employers and unions to self-

examine and to self-evaluate their employment prac-

tices and to endeavor to eliminate, so far as possible,

the last vestiges of an unfortunate and ignominious

page in this country’s history” (United States v.

N.L. Industries, Inc., 479 F. 2d 354, 379 (C.A. 8)).

An employer or union is less likely to make a seri-

ous attempt to eliminate discriminatory practices or

practices that perpetuate the effects of past discrimi-

nation if it can reasonably anticipate a court order

after lengthy litigation that merely requires it to do

what it should have done in the first place. Indeed,

with respect to changes in practices that would re-

quire the expenditure of money, the absence of back

pay as a usual element of relief under Section 706

(g) could provide a financial incentive to an employer

or union to maintain the unlawful status quo as long

as possible.

It follows that, in the exercise of their discretion

to effectuate the Act’s purposes and to encourage

prompt, voluntary compliance with its terms, the dis-

trict courts should ordinarily award back pay to the

identifiable victims of unlawful employment discrim-

ination, unless there are substantial countervailing

considerations that make such an‘ award unnecessary

or inappropriate. In the court of appeals’ words, the

injured victims of the discrimination “should ordi-

narily be awarded back pay unless special circum-

stances would render such an award unjust” (A. 523-

524).

That standard neither forecloses nor unduly re-

stricts a district court’s exercise of discretion. Courts

of equity always have “the duty *'* * to be alert to

provide such remedies as are necessary to make ef-

fective the congressional purpose” (J.J. Case Co. v.

Borak, 377 U.S. 426, 433). And in the enforcement

of the civil rights statutes, “the court has not merely

the power but the duty to render 2 decree which will —-

so far as possible eliminate the discriminatory effects

of the past as well as bar like discrimination in the

future” (Louisiana v. United States, 380 U.S. 145,

154).

The standard adopted by the court of week here

is identical to the one that this Court applied to the

exercise of a district court’s discretion to award at-

torney’s fees under Title II of the Act. Newman v.

Piggie Park Enterprises, Inc., 390 U.S. 400. The

court of appeals there had ruled that counsel fees

should be awarded only to the extent that a party

advances defenses in bad faith and for purposes of

delay. This Court held that that standard would not

adequately effectuate the purposes of the counsel-fee

provision of Title II. That provision was enacted

“not simply to penalize litigants who deliberately

advance arguments they know to be untenabie but,

more broadly, to encourage individuals injured by

eee

racial discrimination to seek judicial relief under

Title II” (390 US. at 402). Since private litiga-

tion is an essential “means of securing broad com-

pliance with [Title II]” (id. at 401), and since a

plaintiff suing as a “private attorney general” can-

not recover damages, awards of counsel fees are im-

portant to “vindicat[e] a policy that Congress con-

sidered of the highest priority” (id. at 402).

The situation here is analogous. While this case

involves Title VII rather than Title II and back pay

awards rather than attorney’s fees, the effect of

awarding back pay in the absence of special circum-

stances similarly vindicates the broad congressional

policy reflected in the Act and similarly ensures com-

pliance with the law. The “special circumstances”

standard is no less an appropriate guide for the exer-

cise of discretion in awarding back pay under Title

VII than it is for the exercise of discretion in award-

ing counsel fees under Title II.

We do not suggest, nor did the court of appeals

hold, that back pay is mechanically compelled where

violations of the Act are found. Nor do we suggest

that courts of appeals should lightly overturn the

informed exercise of a district court’s discretion.

Where unlawful employment practices result in eco-

nomic loss to identifiable persons, however, the “make

whole” purpose of Title VII, and the important policy

of encouraging voluntary compliance with the law,

should normally call for compensation, in the absence

of substantial countervailing considerations. The dis-

trict court must articulate its reasons for denying

LEE

back pay, and those reasons should be carefully

scrutinized by the appellate courts to ensure that the

district court has fashioned the fullest possible re-

lief consistent with fairness. |

As we understand the application of the “special

circumstances” standard to the question of back pay,

the. Act’s policies of making the victims whole and

deterring future discrimination require back pay to

be awarded unless, for substantial reasons that are.

consistent with the purposes of the Act, awarding

back pay would be unjust to the employer. One such

special circumstance, in the context of employment

practices that discriminate on the basis of sex, might

be the employer’s reasonable and good-faith reliance

upon state female “protective” statutes. See LeBlanc

v. Southern Bell Telephone & Telegraph Co., 460 F.

2d 1228 (C.A. 5), certiorari denied, 409 U.S. 990;

Manning v. International Union, 466 F. 2d 812 (C.A.

6), certiorari denied sub nom. Manning v. General

Motors Corp., 410 U.S. 946; Kober v. Westinghouse

Electric Corp., 480 F. 2d 240 (C.A. 3); but see

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F. 2d

1002 (C.A. 9)." As we shall now show, no such spe-

cial circumstance justified the district court’s denial

of back pay in the present case. .

11 Under EEOC interpretive guidelines in effect from 1965

through August 1969, such state protective laws were con-

sidered consistent with Title VII. Compare 30 Fed. Reg. 14927

with 34 Fed. Reg. 138368. Reliance on a published EEOC

guideline is a defense to liability under Title VII (42 U.S.C.

2000e-12 (b) ).

B. Neither The Absence Of Bad Faith Non-Compliance

Nor The Tardiness Of Plaintiffs’ Back Pay Claim

Justifies Denying An Award Of Back Pay To The

Injured Victims Of The Discriminatory Employ-

ment Practices In This Case

Since the purpose of a back pay award is to com-

pensate the injured persons and not to punish the

employer, the absence of bad faith should not or-

dinarily justify denying back pay. As between the

innocent victim of an unlawful employment practice

and the employer or union that has violated the law,

the economic loss should normally fall on the wrong-

doer. Cf. National Labor Relations Board v. J. H.

Rutter-Rex Mfg. Co., supra, 396 U.S. at 264-265.

Accordingly, the courts of appeals have uniformly

ejected general claims of good faith as a reason to

deny back pay under Title VII.”

To make back pay awards dependent upon proof

of malice or deliberate recalcitrance would place an

unwarranted obstacle in the path of those seeking

compensation for economic injury resulting from un-

12 See, «.g., Pettway Vv. American Cast Iron Pipe Co., supra,

494 F. 2d at 253; Head v. Timken Roller Bearing Co., supra,

486 F. 2d at 877; Sprogis v. United Airlines, Inc., supra, 444

F. 2d at 1201; Waters v. Wisconsin Steel Works, 502 F. 2d

1309, 1821 (C.A. 7); Baxter v. Savannah Sugar Refining

Corp., 495 F. 2d 487, 442-443 (C.A. 5); Robinson v. Lorillard

Corp., supra, 444 F. 2d at 804; Rosen v. Public Service Electric

and Gas Co., supra, 477 F. 2d at 95-96; Carey v. Grey-

hound Bus Co., 500 F. 2d 1872, 1878-1879 (C.A. 5); Johnson

v. Goodyear Tire & Rubber Co., supra, 491 F. 2d at 1365-1367.

Compare United States v. St. Louis-San Francisco Ry. Co.,

464 F. 2d 301, 311 (C.A. 8), with the same court’s subsequent

decision in United States v. N.L. Industries, Inc., supra, 479

F. 2d at 378-379.

lawful employment discrimination. As in Newman

v. Piggie Park Enterprises, Inc., supra, where the

Court rejected a similar “bad faith” test for the

award of attorney’s fees, requiring a showing of bad

motive would not adequately effectuate the purpose of

the Act.

The subjective good faith of an employer or a labor

union does not diminish the economic harm suffered

by the victims of discrimination and should not

exempt the violator from the obligation to make those

victims whole. Moreover, good faith is an inherently

vague standard, the application of which would re-

duce the predictability of back pay awards and thus

weaken the incentive for voluntary compliance with

Title VII.

This Court stated in Griggs v. Duke Power Co.,

401 U.S. 424, 432, that “good intent or absence of

discriminatory intent does not redeem” an other-

wise unlawful employment practice. For similar rea-

sons, good intent should not, at least in the absence

of extraordinary circumstances not present here, im-

munize an employer or a labor union from the ob-

ligation to compensate the innocent victims of em-

ployment discrimination.

Nor should the plaintiffs’ initial disclaimer of an

intention to seek back pay on behalf of members of

the class not before the court justify denying an

award in this case. Since petitioners knew of the

back pay claim for all members of the class at least

as early as June 4, 1970 (A. 28-29), they were on full

notice of the claim more than a year prior to trial.

The district court itself stated in an opinion filed 10

months prior to trial that “[t]he possibility of an

award of money damages upon a determination of

liability is still with us” despite the plaintiffs’ earlier

disclaimer (A. 38). The court reiterated several

.weeks before trial that the claim for back pay would

be considered on its merits and that “damages may be

recovered in this action if the plaintiffs prevail” (A.

51). This advance notice gave petitioners ample op-

portunity to address the matter completely in the

district court.

Moreover, as the court of appeals correctly held,

the defenses available to petitioners with respect to

the back pay issue were identical to their defenses

with respect to injunctive relief. Petitioners were thus

no less able to defend against the back pay claim

than they would have been had it been asserted at

the time the complaint was filed. The district court’s

speculation that petitioners “might have chosen to ex-

ercise unusual zeal” in expediting the trial if they |

had known that back pay was in issue (A. 498) is

contradicted by the absence of any indication that

they exercised any such “unusual zeal” after learning

that the plaintiffs were seeking back pay. Albemarle

makes no representation in its brief that it would

have sought an earlier trial.

Albemarle contends that “[d]Jiscovery relating to

individual claims was clearly rendered much more

difficult, if not impossible, by the passage of time”

(Br. 58). But the record reflects that the district

court ordered the plaintiffs to answer Albemarle’s

interrogatories concerning individual back pay claims

ancl to submit “a statement as to each such. member

of the class as to how he was personally and specifi-

cally discriminated against; and the amount of dam-

ages being claimed” (A. 46). Albemarle does not

indicate why those discovery procedures were inade-

quate.”

In the absence of substantial prejudice to pe-

titioners, the delay in claiming back pay should not

alter the district court’s duty “to fashion the most

complete relief possible” (Section-by-Section Analysis

of 1972 Act, supra, 118 Cong. Rec. 7168, 7565).

Rule 54(c) of the Federal Rules of Civil Procedure

provides that the district court “shall grant the relief

to which the party in whose favor it is rendered is

entitled, even if the party has not demanded such

relief in his pleadings.” Accordingly, other courts of

appeals have correctly held that Title VII back pay

claims asserted even after trial are entitled to full

adjudication in the absence of prejudice. See Rosen

v. Public Service Electric and Gas Co., 409 F. 2d 775,

780, n. 20 (C.A. 3); Robinson v. Lorillard Corp.,

supra, 444 F. 2d 802-803; United States v. Hayes

International Corp., 456 F. 2d 112, 121 (C.A. 5).

18 Nor should back pay be foreclosed because Albemarle’s

assets were sold by Ethyl Corporation to Hoerner Waldorf

Corporation in 1968. If Hoerner Waldorf truly acted “in

the belief that in this suit plaintiffs were not seeking dam-

ages” (Albemarle Br. 58), that consideration goes only to

the his silacition of liability as among the various defendants.

C. Back Pay Claims Should Be Determined For All

Class Members Who Have Sustained Economic Loss,

Whether Or Not They Filed Individual Charges

With The Equal Employment Opportunity Com-

mission

Albemarle concedes (Br. 62) that membership in a

Title VII class action for injunctive relief need not

be limited to persons who have filed charges with the

Equal Employment Opportunity Commission. Miller

v. International Paper Co., 408 F. 2d 283, 284-285

(C.A. 5); Oatis v. Crown Zellerbach Corp., 398 F. 2d

496, 499 (C.A. 5). It contends, however,’ that back

pay should be denied to those members of the class

who did not individually file charges with EEOC.

The purpose of the provision of Title VII (Sec-

tion 706, 42 U.S.C. 2000e-5) requiring the filing of

charges with EEOC is to provide notice to the charged

party of the alleged violation of the Act and to bring

, to bear the voluntary conciliatory functions of EEOC.

The filing of a single charge alleging unlawful em-

ployment practices gives the employer notice of the

complaint and an opportunity to correct the unlaw-

ful practices. It would serve no useful purpose to

require scores of substantially identical claims to be

processed through EEOC when a single charge is

sufficient to satisfy the requirements of Title VII.

Bowe v. Colgate-Palmolive Co., supra, 416 F. 2d at

720; Miller v. International Paper Co., supra, 408

F. 2d at 285; see also Franks v. Bowman Transporta-

tion Co., 495 F. 2d 398, 421-422 (C.A. 5), certiorari

granted on other issues, March 24, 1975, No. 74-728;

Head v. Timken. Roller Bearing Co., supra, 486 F. 2d

at 876. al

—

Just as with injunctive relief, once it has been de-

termined that the defendant has engaged in unlawful

employment practices that have caused the class mem-

bers financial loss, the defendant’s liability for back

pay arises from conduct applicable to all affected

members of the class. That the particular way in

which that common conduct has affected individual

class members may differ in degree, so that the

amount of back pay owing to each affected class

member may vary, does not change the essential class

characteristics of the discriminatory practices.

“Once class-wide discrimination has been demon-

strated to result in disproportional earnings, a class-

wide decision that back pay is appropriate can be

discerned without deciding which members of the

class ‘are entitled ‘to what amounts” (Pettway v.

American Cast Iron Pipe Co., supra, 494 F. 2d at

257). Thereafter, the district court * can proceed

to determine how much back pay is owed to which

class members.**

As respondents’ brief demdpstrates (pp. 37-41),

the legislative history of the Equal Employment Op-

14 In appropriate cases, the court may refer the matter to a

special master. See Fed. R. Civ. P. 53. The district court in

the present case stated in a pretrial order that “if [back pay]

claims become too numerous or complicated, this phase of the

case may be referred to a special master” (A. 51). The record

reflects that approximately 80 persons filed claims for back

pay in the district court (A. 70-85, 116-117).

%* For a comprehensive discussion of methods for deter-

mining back pay awards, see Pettway Vv. American Cast Iron

Pipe Co., supra, 494 F. 2d at 251-263, and Johnson v. Goodyear

Tire & Rubber Co., supra, 491 F. 2d at 1374-1375, 1379-1380.

portunity Act of 1972 shows that Congress considered

and rejected a provision, originally included in the

bill that passed the House, that would have fore-

closed an award of back pay to any member of a

class who had not filed an individual charge with

EEOC. The report accompanying the Senate bill,

which omitted the provision contained in the House

bill, stated that “any restriction on [class] actions

would greatly undermine the effectiveness of title

VII” (S. Rep. No. 415, 92d Cong., 1st Sess., p. 27).

The Section-by-Section Analysis of the bill that

emerged from the Conference Committee and that

was passed by both houses stated: “[T]he leading

cases in this area to date have recognized that many

Title VII claims are necessarily class complaints and

that, accordingly, it is not necessary that each indi-

vidual entitled to relief be named in the original

charge or in the claim for relief. A provision limit-

ing class actions was contained in the House bill and

specifically rejected by the Conference Committee”

(118 Cong. Rec. 7168, 7565).

Congress thus explicitly rejected the precise limi-

tation on class action relief that Albemarle now asks

this Court to accept.

ALBEMARLE’S TESTING PROGRAM IS UNLAW-

FUL BECAUSE ITS TESTS OPERATE TO EX-

CLUDE BLACKS AND HAVE NOT BEEN SHOWN

TO BEAR A DEMONSTRABLE RELATIONSHIP TO

SUCCESSFUL PERFORMANCE OF THE JOBS FOR

WHICH THEY ARE USED

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

Court held that Title VII prohibits the use of tests

or other employee selection procedures that operate

to exclude members of minority groups, unless the

employer demonstrates that the procedures are sub-

stantially related to job performance—i.e., that they

' reliably measure capability for, or accurately predict

successful performance of, the jobs for which they are

used. The district court in the present case ruled

that Albemarle carried its burden of demonstrating

that its tests are job-related. The court of appeals,

however, relying on the principles established by this

—Court’s decision in Griggs and looking to EEOC’s

Guidelines on Employee Selection Procedures (29

C.F.R. Part 1607) for guidance in determining the

‘adequacy of Albemarle’s proof, held that the com-

pany’s test validation study was methodologically de-

ficient and did not, in any event, demonstrate that the

tests provide a reasonable measure of the applicant’s

ability to perform successfully the jobs for which the

tests are used. That holding is correct.

A. Albemarle’s Tests Have A Disproportionate Adverse

Impact On Blacks

Under Title VII, as construed by this Court in

Griggs, the plaintiffs bear the threshold burden of

showing that a challenged testing procedure disquali-

fies from employment opportunities a disproportion-

ately high percentage of minority group candidates.

If that showing is made, the burden shifts to the de-

fendant to demonstrate that the tests are job-related.

. Although the district court did not specifically state

that Albemarle’s tests disproportionately exclude

blacks, it did find that the higher paying lines of pro-

gression “remain essentially segregated because of

the inability of black employees to meet the educa-

tional and testing requirements” (A. 496). More-

over, the adverse racial impact. of the tests was an

implicit premise of the court’s lengthy discussion con-

cerning the job-relatedness of those tests, in which

it concluded that “[t]he defendants have carried the

burden of proof” by demonstrating that the tests are

job-related (A. 497). The court of appeals was more

explicit. It stated that “[t]he plaintiffs made a suffi-

cient showing below that Albemarle’s testing proce-

dures have a racial impact” (A. 515).

Albemarle argues (Br. 28-31) that the plaintiffs’

showing was noi sufficient and that the company

therefore was not required to prove that the tests are

job-related. That issue, however, was neither pre-

sented in Albemarle’s petition for a writ of certiorari

nor fairly comprehended within any issue that was

presented. It is, therefore, not properly before this

. 36

Court. Lawn v. United States, 355 U.S. 339, 362-363,

n. 16.

In any event, we believe, substantially for the rea-

sons stated by respondents (Br. 19-21), that the court

of appeals was justified in concluding that the plain-

tiffs carried their threshold burden of showing a dis-

proportionate racial impact.

B. The Company’s Testing Program Was Not Shown

To Be Job-Related

Albemarle attempted to meet its burden of showing

that its tests are related-to the jobs for which they

are used by submitting the results of a test validation

study conducted in 1971 by Dr. Joseph Tiffin (A.

431-438). The court of appeals correctly concluded

that the study failed to demonstrate that Albemarle’s

tests “have a manifest relationship to the employ-

ment in question” (Griggs v. Duke Power Co., supra,

401 U.S. at 432).

In reaching that conclusion, the court of appeals

drew upon the testing expertise reflected in several

sections of EEOC’s Guidelines on Employee Selection

Procedures, 29 C.F.R. Part 1607. One of those sec-

tions emphasizes the importance of a careful job

analysis to identify “[t]he work behaviors or other

criteria of employee adequacy which the test is in-

tended to predict” (29 C.F.R. 1607.5(b)(3)). An-

other highlights the danger of relying upon the “sub-

jective evaluations” of supervisors in measuring the

job performance of the subjects of a‘validation study,

because of “the possibility of bias inherent in” such

evaluations (29 C.F.R. 1607.5(b) (4)). A third sec-

tion states that the validity of a test with respect to

a particular job may be demonstrated by evidence

of validity with respect to a related job, if “no sig-

nificant/ differences exist’? between the jobs (29

C.F.R. 1607.4(c) (2)).

The court of appeals held that Albemarle’s valida-

tion procedure was deficient because the expert who

conducted the study performed no job analysis but

relied exclusively upon the “possibly subjective. rat-

ing of supervisors who were given a vague standard

by which to judge job performance” (A. 517). Re

ferring to the Guidelines, the court stated: “We

agree that some form of job analysis resulting in

specific and objective criteria for supervisory rat-

ings is cmpcial to a proper concurrent validation

study” (A. 518).

The court also held that, “[e]ven if the validation

procedure had been proper, it was error to approve

the testing procedures for lines of progression where

there had been no validation study” (ibid.). The

court recognized that “a test need not always be vali-

dated for each job for which it is required” (ibid.),

but it held that the absence of any job analysis for

the lines of progression involved in the study and those

for which the tests are required “prevents concluding

that no significant differences exist in the jobs in

question” (A. 519).

Finally, the court held that “it was also error to

approve requiring applicants to pass two tests for

positions where only one test was validated” (ibid.).

Although Albemarle argued that the requirement is

appropriate because the company hires employees in-

to a pool from which they may move into any one

of several lines of progression, the court stated that

“Albemarle has not shown that hiring all employees

into a pool is necessary to the safe and efficient oper-

ation of its business, nor has it shown that hiring em-

ployees for specific lines of progression is not an ac-

ceptable alternative” (A. 519-520).

In our view, each of these holdings is correct. Al-

bemarle’s validation study was not conducted in ac-

cordance with professionally accepted standards, and

it failed, in any event, to show that the tests are

substantially related to performance of the jobs for

which they are used.

1. The court of appeals correctly looked to the

EEOC Guidelines for guidance in assessing the

adequacy of Albemarle’s validation study

Albemarle’s threshold contention is that the court of

appeals erroneously “equat[ed] EEOC suggested tech-

nical methodology with acceptable standards of judi-

cial proof of job relatedness” (Br. 34). That is not

the way we read the court of appeals’ opinion.

The court did not state or imply that the Guidelines

have the force of law or that the adequacy of a vali-

dation study depends upon rigid compliance with each

provision of the Guidelines. It merely looked to the

Guidelines as a source of professionally accepted

standards for the validation of employee, selection

procédures, giving them the “deference” to which they

are entitled as an “interpretation of the Act * * *

by the enforcing agency” (A. 516). See Griggs v.

Duke Power Co., supra, 401 U.S. at 483-434.

The determination whether a testing device has

been adequately validated as a reasonable measure

of job performance is complex and technical. Since

most district judges are not experts in industrial psy-

chology or psychometrics and are not professionally

equipped to evaluate the adequacy of a test valida-

tion study, it is appropriate for them to defer to the

experts in those fields for guidance.

There are several accessible sources of such exper-

tise in the field of employee test validation. The

American Psychological Association’s Standards for

Educational and Psychological Tests and Manuals

(hereinafter APA Standards) are generally regarded

as stating in a comprehensive fashion the accepted

standards of the psychological profession.** The gov-

ernment agencies with responsibilities in the area of

equal employment opportunities—including EEOS,

the Department of Labor, and the Civil Service Com-

** The 1966 edition of the APA Standards is part of the

record in this case and is set forth at A. 415-426. The Stand-

ards were revised in 1974, but the revisions do not substan-

tially affect the provisions relating to the matters at issue

here. Albemarle’s expert, Dr. Tiffin, testified that the Stand-

ards are “a classic” in the psychological profession, that he

generally agrees with the principles for validating tests that

are contained in the Standards, and that he attempted in his

study to follow those principles “[{a] hundred percent” (A.

172, 209).

mission—publish guidelines or regulations dealing in

a more concise fashion with test validation."

These standards, guidelines, and regulations areynot

in every respect identical, but each can provide use-

ful guidance to a court in evaluating an employer’s

test validation study. In a case such as the present

one, involving a private employer subject to the provi-

sions of Title VII and within the scope of EEOC’s

enforcement responsibilities, it is particularly appro-

priate for the court to look to the EEOC Guidelines

for “a helpful summary of professional testing stand-

ards” (Vulcan Society v. Civil Service Commission,

490 F. 2d 387, 394, n. 8 (C.A. 2)), since “these

guidelines undeniably provide a valid framework for

determining whether a validation study manifests

that a particular test predicts reasonable job suita-

bility” (United States v. Georgia Power Co., 474 F.

2d 906, 913 (C.A. 5)).

If there are substantial, legitimate differences with-

in the profession, the court should of course apply

the Guidelines with appropriate caution in light of

those differences. But where, as here, the Guidelines

accurately reflect the standards and expertise of the

psychological profession and no showing is made that

17 The former Labor Department order governing the vali-

dation of employment tests by contractors and subcontractors

subject to the provisions of Executive Order 11246 appears

at A. 321-328. The current version, which is substantially

the same as the EEOC Guidelines, appears at 41 C.F.R. Part

60-3. The Civil Service Commission’s regulations governing

test validation appear at 37 Fed. Reg. 21557-21559.

TI Ah te manne

SAW ek ARP Od Tess

there are significant differences of professional opin-

ion with respect to the relevant portions of the Guide-

lines, an employer whose validation study departs

from those provisions should bear the heavy burden of

showing that the departure was warranted and that

the validation study was nevertheless adequate to de-

monstrate that the tests are job-related. In these

circumstances, the Guidelines “should be followed ab-

sent a showing that some cogent reason exists for non-

compliance” (United States v. Georgia Power Co.,

supra, 474 F. 2d at 913). |

The court of appeals in the present case. did not

rigidly an@uncritically apply the Guidelines to Al-

bemarle’s study. It looked to the Guidelines for as-

sistance in evaluating that study and found that the

pertinent provisions were helpful in identifying the

study’s inadequacies. Albemarle made no claim that

those provisions were the subject of professional dis-

agreement, nor did it show that the study was ade-

quate notwithstanding its apparent defects. In those

circumstances, the court’s limited reliance upon the

Guidelines was plainly appropriate.

2. Albemarle’s validation study was not conducted

in accordance with professionally accepted

standards

The tests used by Albemarle—the Revised Beta

Examination and the Wonderlic A and B—do not

purport to test the specific skills that are required

to perform the jobs in question. They measure only

general aptitude and intelligence. Consequently, Title

VII’s command that “any tests used must measure

the person for the job and not the person in the

abstract” (Griggs v. Duke Power Co., supra, 401

U.S. at 486) highlights the importance of a properly

conducted validation study in this case as a means of

ensuring that the general aptitude tests used by

Albemarle do not reflect the common “inadequacy of

broad and general testing devices” (id. at 433).™

Albemarle’s study, however, was not conducted in

accordance with professionally accepted validation

procedures. A job analysis—the breaking down of

a job into its basic elements—is, under generally

recognized professional standards, an essential first

step in a validation study (A. 205, 369-371). See

the EEOC Guidelines, 29 C.F.R. 1607.4(c), 1607.5

(b) (3) (A. 310, 312-313) ; APA Standards, { C4 (A.

419); Department of Labor Order, 41 C.F.R. 60-3.6

(a) (3) ; Civil Service Commission Regulations, J S3-

1(a)(3) (87 Fed. Reg. 21557). Albemarle’s expert

conducted no job analysis.

A job analysis identifies the skills needed to per-

form the duties and tasks of a particular job. It

might reveal,“fér example, that manual dexterity and

concentration are necessary for a particular job but

18 The Wonderlic tests used here and in Griggs (see 401 U.S.

at 430, n. 6) have been the subject of numerous challenges

under Title VII. See, e.g., Rogers v. International Paper Co.

9 [CCH] EPD {9865 (C.A. 8); Young v. Edgcomb Steel

Co., 499 F. 2d 97, 98, 100 (C.A. 4); Franks v. Bowman Trans-

portation Co., supra, 495 F. 2d at 412; Duhon v. Goodyear

Tire & Rubber Co., 494 F. 2d 817, 818-819 (C.A. 5); Johnson

v. Goodyear Tire & Rubber Co., supra, 491 F. 2d at 1372.

that speed is not. A job analysis therefore provides

a basis for an objective rating of an employee’s

ability to do a job. Since Dr. Tiffin conducted no

job analysis, he was obliged to rely on subjective

supervisory ratings—“just how well the guy can do

the job when he’s feeling right”—as the sole meas-

ure of job performance.

Not only do such subjective criteria provide “a

ready mechanism for discrimination” (Rowe v. Gen-

eral Motors Corp., 457 F. 2d 348, 359 (C.A. 5)),

but also they leave the raters free to interpret the

criterion according to their personal views. Thus,

while manual dexterity and concentration may in

fact be the skills necessary for the job, the super-

visor operating under a subjective standard might

be rating the employees on the basis of speed and

demeanor. If the tests actually measured the ability

to work quickly, but not the relevant criteria of

manual dexterity and concentration, there might be

a high correlation between test scores and supervisory

ratings, but the tests would not in fact measure the

ability to perform the job.

Thus, while Albemarle contends that a job analysis

is “superfluous” (Br. 37) because its tests correlated

in some respects with the supervisory ratings, the

absence of a job analysis makes it impossible to

determine whether the correlation is meaningful.

The abilities rated by the supervisors and measured

by Albemarle’s tests may not be the ones that are

necessary to perform the jobs at the mill.

The absence of a job analysis led to another defect.

The study was conducted not for individual jobs but

for groups of jobs adjacent to each other on a line

of progression (A. 166, 174). For example, Dr.

Tiffin’s first job group included the jobs of caustic

operator and lime kiln operator (A. 432). Since

there was no job analysis for either job, however,

there was no basis for determining whether the two

jobs involve similar tasks requiring similar skills,

and therefore no foundation for concluding that they

could properly be validated as a group (see A. 205).

This defect was compounded by the rating method.

Supervisors were instructed to rate the employees’

in each job group against one another—that is, to

rank them in order (A. 187). Thus, a supervisor

was required to determine whether a caustic operator

was superior to a lime kiln operator, though there

was no analysis indicating that the two jobs were

substantially the same. é¢

The study was deficient in other respects as well.

The EEOC Guidelines, 29 C.F.R. 1607.5(b) (2) (A.

312), like the APA Standards, [C4.5 (A. 421),

deem it essential that tests be administered under

controlled and standardized conditions and that

proper safeguards be taken to assure that test scores

do not contaminate the job performance ratings—

i.e., that raters are not made aware of the test

scores of the employees they are rating. Dr. Tiffin,

however, did not administer the tests himself and

did not know who did administer them (A. 176).

He did not take precautions to avoid contamination

and did not know whether the supervisors who rated

the employees were or were not aware of the test

scores (A. 177). Plaintiffs’ expert testified that it

was “extraordinarily bad practice” for the person

. conducting the validation study to leave security meas-

ures to those “who have an interest in the outcome”

(A. 206).

Moreover, the job groups used in the validation

study were selected from the middle and higher cate-

gories in the lines of progression studied (A. 167,

178), although successful applicants for employment

would be performing entry-level work in the lower

job categories for several years. Dr. Tiffin sought to

justify the use of the upper-level categories on the

ground that “those are the jobs to which these men

will go if they stay in the progression line long

enough” (A. 167).

But that standard—which would justify the test-

ing of beginning factory workers by examinations

that measure the ability to perform the job of senior

foreman—does not comport with the standards of the

profession. The EEOC Guidelines, 29 C.F.R. 1607.4

(c)(1) (A. 310), state that it is appropriate to

evaluate employees for higher job levels only if “new

employees will probably, within a reasonable period

of time and in a great majority of cases, progress

to a higher level * * *.” The Civil Service Commis-

sion’s regulations, J S3-5, 37 Fed. Reg. 21558, are

to the same effect. While the court of appeals de-

clined to decide whether this defect was significant

because it believed that there was “insufficient evi-

dence below as to the time in which it takes an em-

ployee to progress to higher level jobs” (A. 519, n.

4), we submit that the burden of presenting that

evidence should be borne by the person seeking to

prove the job-relatedness of the tests. In the ab-

sence of such evidence, it is not possible to determine

whether the tests have been properly validated for

the jobs for which they are required.

3. The study does not, in any event, demonstrate

that the tests are related to the jobs for which

they are used

Even if Dr. Tiffin had followed professionally ac-

cepted procedures in conducting the validation study,

the results of the study would not validate the tests

for the use to which they are put by Albemarle.

.The district court found (A. 487), on the basis of a

stipulation (A. 100), that the Beta and Wonderlic

tests are administered to applicants for 13 lines of

progression in éight departments.” Dr. Tiffin’s study,

however, covered only eight lines of progression in

five departments (A. 514).

Title VII requires that a testing program with a

racially disparate impact be shown to bear a demon-

strable relationship to successful performance of each

job for which it is used. Although a single validation

study covering selected jobs might suffice to prove

1° Albemarle now states. (Br. 18, 44) that the tests are in

fact administered to applicants for eight lines of progres-

sion in four departments. If so, that can be shown in the

district court on remand. We address our comments to the

facts currently of record.

ae Seem prance eins

the test’s validity as used for additional jobs that

are substantially similar (see 29 C.F.R. 1607.4(c) (2)

(A. 310-311)), the absence of a job analysis here

makes it impossible to determine whether the jobs

excluded from the study are similar to those that

were covered. The result, as the court of appeals

correctly held (A. 518-519), is that the study does

not support Albemarle’s use of the tests in lines of

progression not covered by the study.

Moreover, Albemarle administers all three of its

tests to job applicants and requires satisfactory

scores on both the Beta and either the Wonderlic A

or the Wonderlic B (A. 220; see Albemarle Br. 44,

n. 44). But Dr. Tiffin’s study found that the Beta

together with either Wonderlic A or Wonderlic B

correlated with job performance in only two of the

10 job groups studied (A. 432). As the court of

appeals correctly held, the study does not justify “re-

quiring applicants to pass two tests for positions

where only one test was validated” (A. 519).

Albemarle’s answer is that it is reasonable to re-

quire all applicants to qualify under both tests be-

cause it “cannot predict in which line of progression

an employee will be needed” (Br. 46). The practice

of hiring all employees into a pool “has the advan-

tage of flexibility in workforce” (Br. 47), and it

would be “unreasonable to disrupt the entire hiring

system” (Br. 46) in order to ensure that the tests

are used exclusively for the specific jobs to which

they are related.

48 F

But this Court held in Griggs that a test which

operates to exclude blacks must be “shown to bear a

demonstrable relationship to successful performance

of the jobs for which it [is] used” (401 U.S. at 431).

Qualifying all applicants for every line of progres-

sion may give Albemarle greater “flexibility.” But

“Congress has forbidden * * * giving these devices

and mechanisms controlling force unless they are

demonstrably a reasonable measure of job perform-

ance” (id. at 436). Business “flexibility” is not “busi-

ness necessity” (id. at 431). |

Although Albemarle asserts that its testing pro-

gram is necessary ‘“[t]o preserve the safe and effi-

cient operation of its pulp mill” (Br. 46), the court

of appeals correctly found that the record does not

support that assertion. “Albemarle has not shown

that hiring all employees into a pool is necessary to

the safe and efficient operation of its business, nor

has it shown that hiring employees for specific lines

_ of progression is not an acceptabic alternative” (A.

519-520). : ,

Finally, Albemarle states that, while “[t]hese ob-

_ jections may be grounds for modifying the District

Court’s order, * * * they are not grounds for enjoin-

ing the use of tests completely, as the Court of Ap-

‘ peals has done” (Br. 44). But that is not what the

court of appeals haa done. It held only that, Albe-

marle’s present use of the tests is unlawful. Albe-

marle is not precluded from demonstrating on re-

mand that some other use of its tests is justified

under the Griggs standard. ,

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

J. STANLEY POTTINGER,

Assistant Attorney General.

MARK L. EVANS,

Assistant to the Solicitor General.

”

JAMES P. TURNER,

BRIAN K. LANDSBERG,

DAVID L. ROSE,

JOHN C. HOYLE,

Attorneys.

* JULIA C. COOPER,

Acting General Counsel,

JOSEPH T. EDDINS,

Associate General Counsel,

BEATRICE ROSENBERG,

CHARLES L. REISCHEL,

MARIAN HALLEY,

MARY-HELEN MAUTNER,

; Attorneys,

Equal Employment Opportunity

Commission.

| ApRIL 1975.

| j % os. s. covennment printine orice; 1975 572748 136

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