CONNECTICUT v. TEAL, 457 U.S. 440 (1982) 102 S.Ct. 2525
CONNECTICUT ET AL. v. TEAL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 80-2147.
Argued March 29, 1982
Decided June 21, 1982
Respondent black employees of a Connecticut state agency were promoted
provisionally to supervisors. To attain permanent status as supervisors,
they had to participate in a selection process that required, as a
first step, a passing score on a written examination. Subsequently, an
examination was given to 48 black and 259 white candidates. Fifty-four
percent of the black candidates passed, this being approximately 68
percent of the passing rate for the white candidates. Respondent black
employees failed the examination and were thus excluded from further
consideration for permanent supervisory positions. They then brought
an action in Federal District Court against petitioners (the State of
Connecticut and certain state agencies and officials), alleging that
petitioners had violated Title VII of the Civil Rights Act of 1964 by
requiring, as an absolute condition for consideration for promotion, that
applicants pass a written test that disproportionately excluded blacks
and was not job related. In the meantime, before trial, petitioners made
promotions from the eligibility list, the overall result being that 22.9
percent of the black candidates were promoted but only 13.5 percent of
the white candidates. Petitioners urged that this "bottom-line" result,
more favorable to blacks than to whites, was a complete defense to the
suit. The District Court agreed and entered judgment for petitioners,
holding that the "bottom line" percentages precluded the finding of a
Title VII violation and that petitioners were not required to demonstrate
that the promotional examination was job related. The Court of Appeals
reversed, holding that the District Court erred in ruling that the
examination results alone were insufficient to support a prima facie case
of disparate impact in violation of Title VII.
Held: Petitioners' nondiscriminatory "bottom line" does not preclude
respondents from establishing a prima facie case nor does it provide
petitioners with a defense to such a case. Pp. 445-456.
(a) Despite petitioners' nondiscriminatory "bottom line," respondents'
claim of disparate impact from the examination, a pass-fail barrier to
employment opportunity, states a prima facie case of employment
discrimination under § 703(a)(2) of Title VII, which makes it an unlawful
employment practice for an employer to "limit, segregate, or classify his
employees" in any way which would deprive "any individual of employment
Page 441
opportunities" because of race, color, religion, sex, or national origin.
To measure disparate impact only at the "bottom line" ignores the
fact that Title VII guarantees these individual black respondents the
opportunity to compete equally with white workers on the basis
of job-related criteria. Respondents' rights under § 703(a)(2) have
been violated unless petitioners can demonstrate that the examination
in question was not an artificial, arbitrary, or unnecessary barrier
but measured skills related to effective performance as a supervisor.
Pp. 445-451.
(b) No special haven for discriminatory tests is offered by § 703(h) of
Title VII, which provides that it shall not be an unlawful employment
practice for an employer to act upon results of an ability test if such
test is "not designed, intended, or used to discriminate" because of
race, color, religion, sex, or national origin. A non-job-related test
that has a disparate impact and is used to "limit" or "classify"
employees is "used to discriminate" within the meaning of Title VII,
whether or not it was "designed or intended" to have this effect and
despite an employer's efforts to compensate for its discriminatory
effect. Pp. 451-452.
(c) The principal focus of § 703(a)(2) is the protection of the
individual employee, rather than the protection of the minority group as
a whole. To suggest that the "bottom line" may be a defense to a claim
of discrimination against an individual employee confuses unlawful
discrimination with discriminatory intent. Resolution of the factual
question of intent is not what is at issue in this case, but rather
petitioners seek to justify discrimination against the black respondents
on the basis of petitioners' favorable treatment of other members of
these respondents' racial group. Congress never intended to give an
employer license to discriminate against some employees on the basis of
race or sex merely because he favorably treats other members of the
employees' group. Pp. 452-456.
645 F.2d 133, affirmed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting
opinion, in which BURGER, C.J., and REHNQUIST and O'CONNOR,
JJ., joined, post, p. 456.
Bernard F. McGovern, Jr., Assistant Attorney General of
Connecticut, argued the cause for petitioners. With him on
the briefs were Carl R. Ajello, Attorney General, Peter W.
Gillies, Deputy Attorney General, and Robert E. Walsh,
Sidney D. Giber, and Thomas P. Clifford III, Assistant
Attorneys General.
Page 442
Thomas W. Bucci argued the cause for respondents.
With him on the brief was Sidney L. Dworkin.[fn*]
[fn*] Page 442
Briefs of amici curiae urging reversal were filed by Solicitor General
Lee, Assistant Attorney General Reynolds, Deputy Solicitor General Wallace,
Harriet S. Shapiro, Brian K. Landsberg, David L. Rose, and Joan A.
Magagna for the United States; by Robert E. Williams and Douglas
S. McDowell for the Equal Employment Advisory Council et al.; and by
Leonard S. Janofsky and Paul Grossman for the National League of Cities
et al.
Briefs of amici curiae urging affirmance were filed by J. Albert Woll,
Robert M. Weinberg, Michael H. Gottesman, and Laurence Gold for
the American Federation of Labor and Congress of Industrial Organizations;
and by Richard C. Dinkelspiel, William L. Robinson, Norman J.
Chachkin, and Beatrice Rosenberg for the Lawyers' Committee for Civil
Rights Under Law.
JUSTICE BRENNAN delivered the opinion of the Court.
We consider here whether an employer sued for violation
of Title VII of the Civil Rights Act of 1964[fn1] may assert a
"bottom-line" theory of defense. Under that theory, as asserted
in this case, an employer's acts of racial discrimination
in promotions  effected by an examination having disparate
impact  would not render the employer liable for the racial
discrimination suffered by employees barred from promotion
if the "bottom-line" result of the promotional process was an
appropriate racial balance. We hold that the "bottom line"
does not preclude respondent employees from establishing a
prima facie case, nor does it provide petitioner employer with
a defense to such a case.
I
Four of the respondents, Winnie Teal, Rose Walker, Edith
Latney, and Grace Clark, are black employees of the Department
of Income Maintenance of the State of Connecticut.[fn2]
Page 443
Each was promoted provisionally to the position of Welfare
Eligibility Supervisor and served in that capacity for almost
two years. To attain permanent status as supervisors, however,
respondents had to participate in a selection process
that required, as the first step, a passing score on a written
examination. This written test was administered on December
2, 1978, to 329 candidates. Of these candidates, 48 identified
themselves as black and 259 identified themselves as
white. The results of the examination were announced in
March 1979. With the passing score set at 65,[fn3] 54.17 percent
of the identified black candidates passed. This was approximately
68 percent of the passing rate for the identified white
candidates.[fn4] The four respondents were among the blacks
who failed the examination, and they were thus excluded
Page 444
from further consideration for permanent supervisory positions.
In April 1979, respondents instituted this action in
the United States District Court for the District of Connecticut
against petitioners, the State of Connecticut, two state
agencies, and two state officials. Respondents alleged, inter
alia, that petitioners violated Title VII by imposing, as an
absolute condition for consideration for promotion, that applicants
pass a written test that excluded blacks in disproportionate
numbers and that was not job related.
More than a year after this action was instituted, and
approximately one month before trial, petitioners made promotions
from the eligibility list generated by the written
examination. In choosing persons from that list, petitioners
considered past work performance, recommendations of the
candidates' supervisors and, to a lesser extent, seniority.
Petitioners then applied what the Court of Appeals characterized
as an affirmative-action program in order to ensure a
significant number of minority supervisors.[fn5] Forty-six persons
were promoted to permanent supervisory positions, 11
of whom were black and 35 of whom were white. The overall
result of the selection process was that, of the 48 identified
black candidates who participated in the selection process,
22.9 percent were promoted and of the 259 identified white
candidates, 13.5 percent were promoted.[fn6] It is this "bottom-line"
result, more favorable to blacks than to whites, that petitioners
urge should be adjudged to be a complete defense to
respondents' suit.
After trial, the District Court entered judgment for petitioners.
App. to Pet. for Cert. 18a. The court treated
respondents' claim as one of disparate impact under Griggs v.
Duke Power Co., 401 U.S. 424 (1971), Albemarle Paper Co.
Page 445
v. Moody, 422 U.S. 405 (1975), and Dothard v. Rawlinson,
433 U.S. 321 (1977). However, the court found that, although
the comparative passing rates for the examination indicated
a prima facie case of adverse impact upon minorities,
the result of the entire hiring process reflected no such adverse
impact. Holding that these "bottom-line" percentages
precluded the finding of a Title VII violation, the court held
that the employer was not required to demonstrate that the
promotional examination was job related. App. to Pet. for
Cert. 22a-24a, 26a. The United States Court of Appeals for
the Second Circuit reversed, holding that the District Court
erred in ruling that the result of the written examination
alone were insufficient to support a prima facie case of disparate
impact in violation of Title VII. 645 F.2d 133 (1981).
The Court of Appeals stated that where "an identifiable pass-fail
barrier denies an employment opportunity to a disproportionately
large number of minorities and prevents them from
proceeding to the next step in the selection process," that
barrier must be shown to be job related. Id., at 138. We
granted certiorari, 454 U.S. 813 (1981), and now affirm.
II
A
We must first decide whether an examination that bars a
disparate number of black employees from consideration for
promotion, and that has not been shown to be job related,
presents a claim cognizable under Title VII. Section
703(a)(2) of Title VII provides in pertinent part:
"It shall be an unlawful employment practice for an
employer â€â€
. . . . .
"(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive
or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as
Page 446
an employee, because of such individual's race, color, religion,
sex, or national origin." 78 Stat. 255, as amended,
42 U.S.C. § 2000e-2(a)(2).
Respondents base their claim on our construction of this
provision in Griggs v. Duke Power Co., supra. Prior to the
enactment of Title VII, the Duke Power Co. restricted its
black employees to the labor department. Beginning in
1965, the company required all employees who desired a
transfer out of the labor department to have either a high
school diploma or to achieve a passing grade on two professionally
prepared aptitude tests. New employees seeking
positions in any department other than labor had to possess
both a high school diploma and a passing grade on these two
examinations. Although these requirements applied equally
to white and black employees and applicants, they barred
employment opportunities to a disproportionate number of
blacks. While there was no showing that the employer had a
racial purpose or invidious intent in adopting these requirements,
this Court held that they were invalid because they
had a disparate impact and were not shown to be related to
job performance:
"[Title VII] proscribes not only overt discrimination but
also practices that are fair in form, but discriminatory in
operation. The touchstone is business necessity. If an
employment practice which operates to exclude Negroes
cannot be shown to be related to job performance, the
practice is prohibited." 401 U.S., at 431.
Griggs and its progeny have established a three-part analysis
of disparate-impact claims. To establish a prima facie
case of discrimination, a plaintiff must show that the facially
neutral employment practice had a significantly discriminatory
impact. If that showing is made, the employer must
then demonstrate that "any given requirement [has] a manifest
relationship to the employment in question," in order to
Page 447
avoid a finding of discrimination. Griggs, supra, at 432.
Even in such a case, however, the plaintiff may prevail, if he
shows that the employer was using the practice as a mere pretext
for discrimination. See Albemarle Paper Co., supra,
at 425; Dothard, supra, at 329.[fn7]
Griggs recognized that in enacting Title VII, Congress
required "the removal of artificial, arbitrary, and unnecessary
barriers to employment" and professional development
that had historically been encountered by women and blacks
as well as other minorities. 401 U.S., at 431. See also
Dothard v. Rawlinson, supra.[fn8] McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), explained that
"Griggs was rightly concerned that childhood deficiencies
in the education and background of minority citizens,
resulting from forces beyond their control, not be
allowed to work a cumulative and invidious burden on
such citizens for the remainder of their lives." Id., at
806.
Page 448
Petitioners' examination, which barred promotion and had
a discriminatory impact on black employees, clearly falls
within the literal language of § 703(a)(2), as interpreted by
Griggs. The statute speaks, not in terms of jobs and promotions,
but in terms of limitations and classifications that
would deprive any individual of employment opportunities.[fn9]
A disparate-impact claim reflects the language of § 703(a)(2)
and Congress' basic objectives in enacting that statute: "to
achieve equality of employment opportunities and remove
barriers that have operated in the past to favor an identifiable
group of white employees over other employees."
401 U.S., at 429-430 (emphasis added). When an employer
uses a non-job-related barrier in order to deny a minority or
woman applicant employment or promotion, and that barrier
has a significant adverse effect on minorities or women, then
the applicant has been deprived of an employment opportunity
"because of . . . race, color, religion, sex, or national origin."
In other words, § 703(a)(2) prohibits discriminatory
"artificial, arbitrary, and unnecessary barriers to employment,"
401 U.S., at 431, that "limit . . . or classify . . . applicants
for employment . . . in any way which would deprive or
tend to deprive any individual of employment opportunities."
(Emphasis added.)
Relying on § 703(a)(2), Griggs explicitly focused on employment
"practices, procedures, or tests," 401 U.S., at 430,
that deny equal employment "opportunity," id., at 431. We
concluded that Title VII prohibits "procedures or testing
mechanisms that operate as `built-in headwinds' for minority
Page 449
groups." Id., at 432. We found that Congress' primary
purpose was the prophylactic one of achieving equality of employment
"opportunities" and removing "barriers" to such
equality. Id., at 429-430. See Albemarle Paper Co. v.
Moody, 422 U.S., at 417. The examination given to respondents
in this case surely constituted such a practice and
created such a barrier.
Our conclusion that § 703(a)(2) encompasses respondents'
claim is reinforced by the terms of Congress' 1972 extension
of the protections of Title VII to state and municipal employees.
See n. 8, supra. Although Congress did not explicitly
consider the viability of the defense offered by the state employer
in this case, the 1972 amendments to Title VII do reflect
Congress' intent to provide state and municipal employees
with the protection that Title VII, as interpreted by
Griggs, had provided to employees in the private sector:
equality of opportunity and the elimination of discriminatory
barriers to professional development. The Committee Reports
and the floor debates stressed the need for equality of
opportunity for minority applicants seeking to obtain governmental
positions. E. g., S. Rep. No. 92-415, p. 10 (1971);
118 Cong. Rec. 1815 (1972) (remarks of Sen. Williams).
Congress voiced its concern about the widespread use by
state and local governmental agencies of "invalid selection
techniques" that had a discriminatory impact. S. Rep. No.
92-415, supra, at 10; H.R. Rep. No. 92-238, p. 17 (1971); 117
Cong. Rec. 31961 (1971) (remarks of Rep. Perkins).[fn10]
Page 450
The decisions of this Court following Griggs also support
respondents' claim. In considering claims of disparate impact
under § 703(a)(2) this Court has consistently focused on
employment and promotion requirements that create a discriminatory
bar to opportunities. This Court has never read
§ 703(a)(2) as requiring the focus to be placed instead on the
overall number of minority or female applicants actually
hired or promoted. Thus Dothard v. Rawlinson, 433 U.S. 321
(1977), found that minimum statutory height and weight
requirements for correctional counselors were the sort of arbitrary
barrier to equal employment opportunity for women
forbidden by Title VII. Although we noted in passing that
women constituted 36.89 percent of the labor force and only
12.9 percent of correctional counselor positions, our focus was
not on this "bottom line." We focused instead on the disparate
effect that the minimum height and weight standards had
on applicants: classifying far more women than men as ineligible
for employment. Id., at 329-330, and n. 12. Similarly,
in Albemarle Paper Co. v. Moody, supra, the action
was remanded to allow the employer to attempt to show that
the tests that he had given to his employees for promotion
were job related. We did not suggest that by promoting a
sufficient number of the black employees who passed the
examination, the employer could avoid this burden. See
422 U.S., at 436. See also New York Transit Authority v.
Beazer, 440 U.S. 568, 584 (1979) ("A prima facie violation of
the Act may be established by statistical evidence showing
that an employment practice has the effect of denying members
of one race equal access to employment opportunities")
(emphasis added).
Page 451
In short, the District Court's dismissal of respondents'
claim cannot be supported on the basis that respondents
failed to establish a prima facie case of employment discrimination
under the terms of § 703(a)(2). The suggestion
that disparate impact should be measured only at the bottom
line ignores the fact that Title VII guarantees these individual
respondents the opportunity to compete equally with
white workers on the basis of job-related criteria. Title VII
strives to achieve equality of opportunity by rooting out
"artificial, arbitrary, and unnecessary" employer-created barriers
to professional development that have a discriminatory
impact upon individuals. Therefore, respondents' rights
under § 703(a)(2) have been violated, unless petitioners can
demonstrate that the examination given was not an artificial,
arbitrary, or unnecessary barrier, because it measured skills
related to effective performance in the role of Welfare Eligibility
Supervisor.
B
The United States, in its brief as amicus curiae, apparently
recognizes that respondents' claim in this case falls
within the affirmative commands of Title VII. But it seeks
to support the District Court's judgment in this case by relying
on the defenses provided to the employer in § 703(h).[fn11]
Section 703(h) provides in pertinent part:
"Notwithstanding any other provision of this subchapter,
it shall not be an unlawful employment practice for
an employer . . . to give and to act upon the results of
any professionally developed ability test provided that
such test, its administration or action upon the results
is not designed, intended or used to discriminate because
Page 452
of race, color, religion, sex or national origin."
78 Stat. 257, as amended, 42 U.S.C. § 2000e-2(h).
The Government argues that the test administered by the
petitioners was not "used to discriminate" because it did not
actually deprive disproportionate numbers of blacks of promotions.
But the Government's reliance on § 703(h) as offering
the employer some special haven for discriminatory tests
is misplaced. We considered the relevance of this provision
in Griggs. After examining the legislative history of
§ 703(h), we concluded that Congress, in adding § 703(h), intended
only to make clear that tests that were job related
would be permissible despite their disparate impact.
401 U.S., at 433-436. As the Court recently confirmed, §
703(h), which was introduced as an amendment to Title VII on
the Senate floor, "did not alter the meaning of Title VII, but
`merely clarifie[d] its present intent and effect.'" American
Tobacco Co. v. Patterson, 456 U.S. 63, 73, n. 11 (1982),
quoting 110 Cong. Rec. 12723 (1964) (remarks of Sen. Humphrey).
A non-job-related test that has a disparate racial
impact, and is used to "limit" or "classify" employees, is
"used to discriminate" within the meaning of Title VII,
whether or not it was "designed or intended" to have this effect
and despite an employer's efforts to compensate for its
discriminatory effect. See Griggs, 401 U.S., at 433.
In sum, respondents' claim of disparate impact from the
examination, a pass-fail barrier to employment opportunity,
states a prima facie case of employment discrimination under
§ 703(a)(2), despite their employer's nondiscriminatory "bottom
line," and that "bottom line" is no defense to this prima
facie case under § 703(h).
III
Having determined that respondents' claim comes within
the terms of Title VII, we must address the suggestion of petitioners
and some amici curiae that we recognize an exception,
either in the nature of an additional burden on plaintiffs
Page 453
seeking to establish a prima facie case or in the nature of an
affirmative defense, for cases in which an employer has compensated
for a discriminatory pass-fail barrier by hiring or
promoting a sufficient number of black employees to reach a
nondiscriminatory "bottom line." We reject this suggestion,
which is in essence nothing more than a request that we redefine
the protections guaranteed by Title VII.[fn12]
Section 703(a)(2) prohibits practices that would deprive or
tend to deprive "any individual of employment opportunities."
The principal focus of the statute is the protection of
the individual employee, rather than the protection of the minority
Page 454
group as a whole. Indeed, the entire statute and its
legislative history are replete with references to protection
for the individual employee. See, e. g., §§ 703(a)(1), (b), (c),
704(a), 78 Stat. 255-257, as amended, 42 U.S.C. § 2000e-2(a)(1),
(b), (c), 2000e-3(a); 110 Cong. Rec. 7213 (1964) (interpretive
memorandum of Sens. Clark and Case) ("discrimination
is prohibited as to any individual"); id., at 8921 (remarks
of Sen. Williams) ("Every man must be judged according to
his ability. In that respect, all men are to have an equal
opportunity to be considered for a particular job").
In suggesting that the "bottom line" may be a defense to a
claim of discrimination against an individual employee, petitioners
and amici appear to confuse unlawful discrimination
with discriminatory intent. The Court has stated that a non-discriminatory
"bottom line" and an employer's good-faith
efforts to achieve a nondiscriminatory work force, might
in some cases assist an employer in rebutting the inference
that particular action had been intentionally discriminatory:
"Proof that [a] work force was racially balanced or that it contained
a disproportionately high percentage of minority employees
is not wholly irrelevant on the issue of intent when
that issue is yet to be decided." Furnco Construction Corp.
v. Waters, 438 U.S. 567, 580 (1978). See also Teamsters v.
United States, 431 U.S. 324, 340, n. 20 (1977). But resolution
of the factual question of intent is not what is at issue
in this case. Rather, petitioners seek simply to justify
discrimination against respondents on the basis of their
favorable treatment of other members of respondents' racial
group. Under Title VII, "[a] racially balanced work force
cannot immunize an employer from liability for specific acts
of discrimination." Furnco Construction Corp. v. Waters,
438 U.S., at 579.
"It is clear beyond cavil that the obligation imposed by
Title VII is to provide an equal opportunity for each
applicant regardless of race, without regard to whether
Page 455
members of the applicant's race are already proportionately
represented in the work force. See Griggs v.
Duke Power Co., 401 U.S., at 430; McDonald v. Santa
Fe Trail Transportation Co., 427 U.S. 273, 279 (1976)."
Ibid. (emphasis in original).
It is clear that Congress never intended to give an employer
license to discriminate against some employees on the
basis of race or sex merely because he favorably treats other
members of the employees' group. We recognized in Los
Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702
(1978), that fairness to the class of women employees as a
whole could not justify unfairness to the individual female
employee because the "statute's focus on the individual is unambiguous."
Id., at 708. Similarly, in Phillips v. Martin
Marietta Corp., 400 U.S. 542 (1971) (per curiam), we recognized
that a rule barring employment of all married women
with preschool children, if not a bona fide occupational qualification
under § 703(e), violated Title VII, even though
female applicants without preschool children were hired in
sufficient numbers that they constituted 75 to 80 percent
of the persons employed in the position plaintiff sought.
Petitioners point out that Furnco, Manhart, and Phillips
involved facially discriminatory policies, while the claim in
the instant case is one of discrimination from a facially neutral
policy. The fact remains, however, that irrespective of
the form taken by the discriminatory practice, an employer's
treatment of other members of the plaintiffs' group can be "of
little comfort to the victims of . . . discrimination." Teamsters
v. United States, supra, at 342. Title VII does not permit
the victim of a facially discriminatory policy to be told
that he has not been wronged because other persons of his or
her race or sex were hired. That answer is no more satisfactory
when it is given to victims of a policy that is facially
neutral but practically discriminatory. Every individual
employee is protected against both discriminatory treatment
Page 456
and "practices that are fair in form, but discriminatory in operation."
Griggs v. Duke Power Co., 401 U.S., at 431. Requirements
and tests that have a discriminatory impact are
merely some of the more subtle, but also the more pervasive,
of the "practices and devices which have fostered racially
stratified job environments to the disadvantage of minority
citizens." McDonnell Douglas Corp. v. Green,
411 U.S., at 800.
IV
In sum, petitioners' nondiscriminatory "bottom line" is no
answer, under the terms of Title VII, to respondents' prima
facie claim of employment discrimination. Accordingly, the
judgment of the Court of Appeals for the Second Circuit is
affirmed, and this case is remanded to the District Court for
further proceedings consistent with this opinion.
It is so ordered.
[fn1] Page 442
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended,
42 U.S.C. § 2000e et seq. (1976 ed. and Supp. IV).
[fn2] Page 442
The black respondents were joined as plaintiffs by four white
employees on a pendent claim that the written test violated provisions of
state law that require promotional exams to be job related. That claim is
not before us. See 645 F.2d 133, 135, n. 3 (CA2 1981).
[fn3] Page 443
The mean score on the examination was 70.4 percent. However, because
the black candidates had a mean score 6.7 percentage points lower
than the white candidates, the passing score was set at 65, apparently in an
attempt to lessen the disparate impact of the examination. See id., at 135,
and n. 4.
[fn4] Page 443
The following table shows the passing rates of various candidate
groups:
Passing
Candidate No. Receiving Rate
Group Number Passing Score (%)
Black 48 26 54.17
Hispanic 4 3 75.00
Indian 3 2 66.67
White 259 206 79.54
Unidentified 15 9 60.00
___ ___ _____
Total 329 246 74.77
Petitioners do not contest the District Court's implicit finding that the
examination itself resulted in disparate impact under the "eighty percent
rule" of the Uniform Guidelines on Employee Selection Procedures adopted
by the Equal Employment Opportunity Commission. See App. to Pet. for
Cert. 18a, 23a, and n. 2. Those guidelines provide that a selection rate
that "is less than [80 percent] of the rate for the group with the highest
rate will generally be regarded . . . as evidence of adverse impact."
29 C.F.R. § 1607.4D (1981).
[fn5] Page 444
Petitioners contest this characterization of their selection
procedure. We have no need, however, to resolve this dispute in the context
of the present controversy.
[fn6] Page 444
The actual promotion rate of blacks was thus close to 170 percent that
of the actual promotion rate of whites.
[fn7] Page 447
Petitioners apparently argue both that the nondiscriminatory "bottom
line" precluded respondents from establishing a prima facie case and, in the
alternative, that it provided a defense.
[fn8] Page 447
The legislative history of the 1972 amendments to Title VII,
86 Stat. 103-113, is relevant to this case because those amendments extended the
protection of the Act to respondents here by deleting exemptions for state
and municipal employers. See 86 Stat. 103. That history demonstrates
that Congress recognized and endorsed the disparate-impact analysis employed
by the Court in Griggs. Both the House and Senate Reports cited
Griggs with approval, the Senate Report noting:
"Employment discrimination as viewed today is a . . . complex and
pervasive phenomenon. Experts familiar with the subject now generally
describe the problem in terms of `systems' and `effects' rather than simply
intentional wrongs." S. Rep. No. 92-415, p. 5 (1971).
See also H.R. Rep. No. 92-238, p. 8 (1971). In addition, the
section-by-section analyses of the 1972 amendments submitted to both Houses
explicitly stated that in any area not addressed by the amendments, present
case law  which as Congress had already recognized included our then
recent decision in Griggs  was intended to continue to
govern. 118 Cong. Rec. 7166, 7564 (1972).
[fn9] Page 448
In contrast, the language of § 703(a)(1),
42 U.S.C. § 2000e-2(a)(1), if it were the only protection given to
employees and applicants under Title VII, might support petitioners'
exclusive focus on the overall result. That subsection makes it an
unlawful employment practice
"to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions or privileges of employment, because of such individual's race,
color, religion, sex, or national origin."
[fn10] Page 449
The Committee Reports in both Houses, and Senator Williams, principal
sponsor of the Senate bill that was ultimately enacted in large part, relied
upon a report of the United States Commission on Civil Rights, which
Senator Williams placed in the Congressional Record. See H.R. Rep.
No. 92-238, p. 17 (1971); S. Rep. No. 92-415, p. 10 (1971); 118 Cong. Rec.
1815-1819 (1972). The Commission concluded that serious "[b]arriers to
equal opportunity" existed for state and local government employees.
Two of the three barriers cited were "recruitment and selection devices
which are arbitrary, unrelated to job performance, and result in unequal
Page 450
treatment of minorities," and promotions made on the basis of "criteria
unrelated to job performance and on discriminatory supervisory ratings."
U.S. Commission on Civil Rights, For All the People . . . By All the People
 A Report on Equal Opportunity in State and Local Government Employment
119 (1969), reprinted in 118 Cong. Rec. 1817 (1972).
[fn11] Page 451
The Government's brief is submitted by the Department of Justice,
which shares responsibility for federal enforcement of Title VII with the
Equal Employment Opportunity Commission (EEOC). The EEOC declined
to join this brief. See Brief for United States as Amicus Curiae 1,
and n.
[fn12] Page 453
Petitioners suggest that we should defer to the EEOC Guidelines in
this regard. But there is nothing in the Guidelines to which we might
defer that would aid petitioners in this case. The most support petitioners
could conceivably muster from the Uniform Guidelines on Employee Selection
Procedures, 29 C.F.R. pt. 1607 (1981) (now issued jointly by the EEOC,
the Office of Personnel Management, the Department of Labor, and the
Department of Justice, see 29 C.F.R. § 1607.1A (1981)), is neutrality on the
question whether a discriminatory barrier that does not result in a
discriminatory overall result constitutes a violation of Title VII. Section
1607.4C of the Guidelines, relied upon by petitioners, states that as a
matter of "administrative and prosecutorial discretion, in usual
circumstances," the agencies will not take enforcement action based upon
the disparate impact of any component of a selection process if the total
selection process results in no adverse impact. (Emphasis added.) The
agencies made clear that the "guidelines do not address the underlying
question of law," and that an individual "who is denied the job because of
a particular component in a procedure which otherwise meets the `bottom
line' standard . . . retains the right to proceed through the appropriate
agencies, and into Federal court." 43 Fed. Reg. 38291 (1978). See
29 C.F.R. § 1607.161 (1981). In addition, in a publication
entitled Adoption of Questions and Answers to Clarify and Provide a
Common Interpretation of the Uniform Guidelines on Employee Selection
Procedures, the agencies stated:
"Since the [bottom-line] concept is not a rule of law, it does not affect
the discharge by the EEOC of its statutory responsibilities to investigate
charges of discrimination, render an administrative finding on its
investigation, and engage in voluntary conciliation efforts. Similarly, with
respect to the other issuing agencies, the bottom line concept applies not
to the processing of individual charges, but to the initiation of
enforcement action." 44 Fed. Reg. 12000 (1979).
JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE
REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
In past decisions, this Court has been sensitive to the critical
difference between cases proving discrimination under
Title VII, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp. IV),
by a showing of disparate treatment or discriminatory intent
and those proving such discrimination by a showing of disparate
impact. Because today's decision blurs that distinction
and results in a holding inconsistent with the very nature of
disparate-impact claims, I dissent.
I
Section 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2),
provides that it is an unlawful employment practice for an
employer to
"limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend
to deprive any individual of employment opportunities or
Page 457
otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or
national origin."
Although this language suggests that discrimination occurs
only on an individual basis, in Griggs v. Duke Power Co.,
401 U.S. 424, 432 (1971), the Court held that discriminatory
intent on the part of the employer against an individual
need not be shown when "employment procedures or testing
mechanisms . . . operate as `built-in headwinds' for minority
groups and are unrelated to measuring job capability."
Thus, the Court held that the "disparate impact" of an employer's
practices on a racial group can violate § 703(a)(2) of
Title VII. In Griggs and each subsequent disparate-impact
case, however, the Court has considered, not whether the
claimant as an individual had been classified in a manner impermissible
under § 703(a)(2), but whether an employer's procedures
have had an adverse impact on the protected group
to which the individual belongs.
Thus, while disparate-treatment cases focus on the way in
which an individual has been treated, disparate-impact cases
are concerned with the protected group. This key distinction
was explained in Furnco Construction Corp. v. Waters,
438 U.S. 567, 581-582 (1978) (MARSHALL, J., concurring in
part):
"It is well established under Title VII that claims of
employment discrimination because of race may arise in
two different ways. Teamsters v. United States,
431 U.S. 324, 335-336, n. 15 (1977). An individual may allege
that he has been subjected to `disparate treatment'
because of his race, or that he has been the victim of a
facially neutral practice having a `disparate impact' on
his racial group."[fn1]
Page 458
In keeping with this distinction, our disparate-impact cases
consistently have considered whether the result of an employer's
total selection process had an adverse impact upon
the protected group.[fn2] If this case were decided by reference
to the total process  as our cases suggest that it should be â€â€
the result would be clear. Here 22.9% of the blacks who
entered the selection process were ultimately promoted,
compared with only 13.5% of the whites. To say that this selection
process had an unfavorable "disparate impact" on
blacks is to ignore reality.
The Court, disregarding the distinction drawn by our
cases, repeatedly asserts that Title VII was designed to protect
individual, not group, rights. It emphasizes that some
individual blacks were eliminated by the disparate impact of
the preliminary test. But this argument confuses the aim of
Title VII with the legal theories through which its aims were
intended to be vindicated. It is true that the aim of Title
VII is to protect individuals, not groups. But in advancing
this commendable objective, Title VII jurisprudence has recognized
two distinct methods of proof. In one set of cases â€â€
those involving direct proof of discriminatory intent  the
plaintiff seeks to establish direct, intentional discrimination
against him. In that type of case, the individual is at the
forefront throughout the entire presentation of evidence. In
disparate-impact cases, by contrast, the plaintiff seeks to
carry his burden of proof by way of inference  by showing
that an employer's selection process results in the rejection of
a disproportionate number of members of a protected group
Page 459
to which he belongs. From such a showing a fair inference
then may be drawn that the rejected applicant, as a member
of that disproportionately excluded group, was himself a victim
of that process' "`built-in headwinds.'" Griggs, supra,
at 432. But this method of proof  which actually defines
disparate-impact theory under Title VII  invites the plaintiff
to prove discrimination by reference to the group rather than
to the allegedly affected individual.[fn3] There can be no violation
of Title VII on the basis of disparate impact in the
absence of disparate impact on a group.[fn4]
In this case respondent black employees seek to benefit
from a conflation of "discriminatory treatment" and "disparate
impact" theories. But they cannot have it both ways.
Having undertaken to prove discrimination by reference to
one set of group figures (used at a preliminary point in the
selection process), these respondents then claim that nondiscrimination
cannot be proved by viewing the impact of the
entire process on the group as a whole. The fallacy of this
reasoning  accepted by the Court  is transparent. It is to
Page 460
confuse the individualistic aim of Title VII with the methods
of proof by which Title VII rights may be vindicated. The
respondents, as individuals, are entitled to the full personal
protection of Title VII. But, having undertaken to prove
a violation of their rights by reference to group figures,
respondents cannot deny petitioners the opportunity to
rebut their evidence by introducing figures of the same kind.
Having pleaded a disparate-impact case, the plaintiff cannot
deny the defendant the opportunity to show that there was
no disparate impact. As the Court of Appeals for the Third
Circuit noted in EEOC v. Greyhound Lines, Inc., 635 F.2d 188,
192 (1980):
"[N]o violation of Title VII can be grounded on the disparate
impact theory without proof that the questioned
policy or practice has had a disproportionate impact on
the employer's workforce. This conclusion should be as
obvious as it is tautological: there can be no disparate impact
unless there is [an ultimate] disparate impact."
Where, under a facially neutral employment process, there
has been no adverse effect on the group  and certainly there
has been none here  Title VII has not been infringed.
II
The Court's position is no stronger in case authority than
it is in logic. None of the cases relied upon by the Court
controls the outcome of this case.[fn5] Indeed, the disparate-impact
Page 461
cases do not even support the propositions for which
they are cited. For example, the Court cites Dothard v.
Rawlinson, 433 U.S. 321 (1977) (holding impermissible minimum
statutory height and weight requirements for correctional
counselors), and observes that "[a]lthough we noted in
passing that women constituted 36.89 percent of the labor
force and only 12.9 percent of correctional counselor positions,
our focus was not on this `bottom line.' We focused
instead on the disparate effect that the minimum height and
weight standards had on applicants: classifying far more
women than men as ineligible for employment." Ante, at
450. In Dothard, however, the Court was not considering a
case in which there was any difference between the discriminatory
effect of the employment standard and the number of
minority members actually hired. The Dothard Court itself
stated:
"[T]o establish a prima facie case of discrimination, a
plaintiff need only show that the facially neutral standards
in question select applicants for hire in a discriminatory
pattern. Once it is shown that the employment
standards are discriminatory in effect, the employer
must meet `the burden of showing that any given requirement
[has] . . . a manifest relationship to the employment
in question.'" 433 U.S., at 329 (emphasis
added).
The Dothard Court did not decide today's case. It addressed
only a case in which the challenged standards had a
discriminatory impact at the bottom line  the hiring decision.
And the Dothard Court's "focus," referred to by the
Court, is of no help in deciding the instant case.[fn6]
Page 462
The Court concedes that the other major cases on which it
relies, Furnco, Los Angeles Dept. of Water & Power v.
Manhart, 435 U.S. 702 (1978), and Phillips v. Martin Marietta
Corp., 400 U.S. 542 (1971) (per curiam) "involved
facially discriminatory policies, while the claim in the instant
case is one of discrimination from a facially neutral policy."
Ante, at 455. The Court nevertheless applies the principles
derived from those cases to the case at bar. It does so by
reiterating the view that Title VII protects individuals, not
groups, and therefore that the manner in which an employer
has treated other members of a group cannot defeat the claim
of an individual who has suffered as a result of even a facially
neutral policy. As appealing as this sounds, it confuses the
distinction  uniformly recognized until today  between disparate
impact and disparate treatment. See supra, at 457-458.
Our cases, cited above, have made clear that discriminatory-impact
claims cannot be based on how an individual is
treated in isolation from the treatment of other members of
the group. Such claims necessarily are based on whether
the group fares less well than other groups under a policy,
practice, or test. Indeed, if only one minority member has
Page 463
taken a test, a disparate-impact claim cannot be made, regardless
of whether the test is an initial step in the selection
process or one of several factors considered by the employer
in making an employment decision.[fn7]
III
Today's decision takes a long and unhappy step in the direction
of confusion. Title VII does not require that employers
adopt merit hiring or the procedures most likely to permit
the greatest number of minority members to be considered
for or to qualify for jobs and promotions. See Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 258-259
(1981); Furnco, 438 U.S., at 578. Employers need not develop
tests that accurately reflect the skills of every individual
candidate; there are few if any tests that do so. Yet the
Court seems unaware of this practical reality, and perhaps
oblivious to the likely consequences of its decision. By its
holding today, the Court may force employers either to eliminate
tests or rely on expensive, job-related, testing procedures,
the validity of which may or may not be sustained if
challenged. For state and local governmental employers
with limited funds, the practical effect of today's decision
may well be the adoption of simple quota hiring.[fn8] This arbitrary
Page 464
method of employment is itself unfair to individual
applicants, whether or not they are members of minority
groups. And it is not likely to produce a competent work
force. Moreover, the Court's decision actually may result in
employers employing fewer minority members. As Judge
Newman noted in Brown v. New Haven Civil Service Board,
474 F. Supp. 1256, 1263 (Conn. 1979):
"[A]s private parties are permitted under Title VII itself
to adopt voluntary affirmative action plans, . . . Title
VII should not be construed to prohibit a municipality's
using a hiring process that results in a percentage of
minority policemen approximating their percentage of
the local population, instead of relying on the expectation
that a validated job-related testing procedure will
produce an equivalent result, yet with the risk that it
might lead to substantially less minority hiring."
Finding today's decision unfortunate in both its analytical
approach and its likely consequences, I dissent.
[fn1] Page 457
See also Teamsters v. United States, 431 U.S. 324, 335-336, n. 15
(1977) (similar explanation).
[fn2] Page 458
See Dothard v. Rawlinson, 433 U.S. 321, 329 (1977) (statutory height
and weight requirements operated as a bar to employment of disproportionate
number of women); Albemarle Paper Co. v. Moody, 422 U.S. 405,
409-411 (1975) (seniority system allegedly locked blacks into lower paying
jobs; applicants to skilled lines of progression were required to pass two
tests); Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (tests were an
absolute bar to transfers or hiring; the Court observed that all Congress
requires is "the removal of artificial, arbitrary, and unnecessary barriers
to employment . . .") (emphasis added).
[fn3] Page 459
Initially, the plaintiff bears the burden of establishing a prima
facie case that Title VII has been infringed. See Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981).
In a disparate-impact case, this burden is met by showing that an employer's
selection process results in the rejection of a disproportionate number of
members of a protected group. See Teamsters v. United States,
supra, at 336-338. Regardless of whether the plaintiff's prima facie
case must itself focus on the defendant's overall selection process or
whether it is sufficient that the plaintiff establish that at least one
pass-fail barrier has resulted in disparate impact, the employer's
presentation of evidence showing that its overall selection procedure does
not operate in a discriminatory fashion certainly dispels any inference of
discrimination. In such instances, at the close of the evidence, the
plaintiff has failed to show disparate impact by a preponderance of the
evidence.
[fn4] Page 459
The Equal Employment Opportunity Commission and other federal
enforcement agencies have adopted the "bottom-line" principle  i. e., the
process viewed as a whole  in deciding when to bring an action against an
employer. See Uniform Guidelines on Employee Selection Procedures,
5 C.F.R. § 300.103(c) (1981).
[fn5] Page 460
The Court concentrates on cases of questionable relevance. Most of
the lower courts that have squarely considered the question have concluded
that there can be no violation of Title VII on a disparate-impact
basis when there is no disparate impact at the bottom line. See, e. g.,
EEOC v. Greyhound Lines, Inc., 635 F.2d 188 (CA3 1980); EEOC v. Navajo
Refining Co., 593 F.2d 988 (CA10 1979); Friend v. Leidinger,
588 F.2d 61, 66 (CA4 1978); Rule v. International Assn. of Ironworkers,
568 F.2d 558 (CA8 1977); Smith v. Troyan, 520 F.2d 492, 497-498 (CA6 1975),
cert. denied, 426 U.S. 934 (1976); Williams v. City & County of San
Francisco, 483 F. Supp. 335 (ND Cal. 1979); Brown v. New Haven Civil Service
Page 461
Board, 474 F. Supp. 1256 (Conn. 1979); Lee v. City of Richmond,
456 F. Supp. 756 (ED Va. 1978).
[fn6] Page 461
The Court cites language from two other disparate-impact cases. The
Court notes that in Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975),
the Court "remanded to allow the employer to attempt to show that the
tests . . . given . . . for promotion were job related." Ante, at 450. But
the fact that the Court did so without suggesting "that by promoting a
Page 462
sufficient number of black employees who passed the examination, the
employer could avoid this burden," ibid., can hardly be precedent
for the negative of that proposition when the issue was neither presented in
the facts of the case nor addressed by the Court.
Similarly, New York Transit Authority v. Beazer, 440 U.S. 568 (1979),
provides little support despite the language quoted by the Court. See
ante, at 450, quoting 440 U.S., at 584 ("`A prima facie violation of
the Act may be established by statistical evidence showing that an
employment practice has the effect of denying members of one race equal
access to employment opportunities'") (emphasis added by the Court).
In Beazer, the Court ruled that the statistical evidence actually
presented was insufficient to establish a prima facie case of
discrimination, and in doing so it indicated that it would have found
statistical evidence of the number of applicants and employees in a
methadone program quite probative. See id., at 585. Beazer
therefore does not justify the Court's speculation that the number of blacks
and Hispanics actually employed were irrelevant to whether a case of
disparate impact had been established under Title VII.
[fn7] Page 463
Courts have recognized that the probative value of statistical
evidence varies with sample size in disparate-impact cases. See, e. g.,
Teamsters v. United States, 431 U.S., at 340, n. 20 ("Considerations
such as small sample size may, of course, detract from the value of such
evidence . . ."); Mayor of Philadelphia v. Educational Equality League,
415 U.S. 605, 621 (1974) ("[T]he District Court's concern for the smallness
of the sample presented by the 13-member Panel was . . . well founded");
Rogillio v. Diamond Shamrock Chemical Co., 446 F. Supp. 423,
427-428 (SD Tex. 1978) (sample of 10 too small); Dendy v. Washington
Hospital Center, 431 F. Supp. 873, 876 (DC 1977) (sample must be "large
enough to mirror the reality of the employment situation"). A sample of only
one would have far too little probative value to establish a prima facie
case of disparate impact.
[fn8] Page 463
Another possibility is that employers may integrate consideration of
test results into one overall hiring decision based on that "factor" and
Page 464
additional factors. Such a process would not, even under the Court's
reasoning, result in a finding of discrimination on the basis of disparate
impact unless the actual hiring decisions had a disparate impact on the
minority group. But if employers integrate test results into a single-step
decision, they will be free to select only the number of minority
candidates proportional to their representation in the work force. If
petitioners had used this approach, they would have been able to hire
substantially fewer blacks without liability on the basis of disparate
impact. The Court hardly could have intended to encourage this.
Page 465
