The United States brought this action against petitioners, the
Hazelwood, Mo., School District, located in St. Louis County, and
various officials, alleging that they were engaged in a "pattern or
practice" of teacher employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, which became
applicable to petitioners as public employers on March 24, 1972.
The District Court, following trial, ruled that the Government had
failed to establish a pattern or practice of discrimination. The
Court of Appeals reversed, in part on the ground that the trial
court's analysis of statistical data rested on an irrelevant
comparison of Negro teachers to Negro pupils in Hazelwood, instead
of a comparison of Negro teachers in Hazelwood to Negro teachers in
the relevant labor market area, which it found to consist of St.
Louis County and the city of St. Louis, where 15.4% of the teachers
are Negro. In the 1972-1973 and 1973-1974 school years, only 1.4%
and 1.8%, respectively, of Hazelwood's teachers were Negroes, and
this statistical disparity, particularly when viewed against the
background of Hazelwood's teacher hiring procedures, was held to
constitute a prima facie
case of a pattern or practice of
racial discrimination. Petitioners contend that the statistical
data on which the Court of Appeals relied cannot sustain a finding
of a violation of Title VII.
The Court of Appeals erred in disregarding the
statistical data in the record dealing with Hazelwood's hiring
after it became subject to Title VII, and the court should have
remanded the case to the District Court for further findings as to
the relevant labor market area and for an ultimate determination
whether Hazelwood has engaged in a pattern or practice of
employment discrimination since March 24, 1972. Though the Court of
Appeals was correct in the view that a proper comparison was
between the racial composition of Hazelwood's teaching staff and
the racial composition of the qualified public school teacher
population in the relevant labor market, it erred in disregarding
the possibility that the prima facie
statistical proof in
the record might, at the trial court level, be rebutted by
statistics dealing with Hazelwood's post-Act hiring practices such
as with respect to the number of Negroes hired compared
Page 433 U. S. 300
to the total number of Negro applicants. For, once a prima
case has been established by statistical work-force
disparities, the employer must be given an opportunity to show that
"the claimed discriminatory pattern is a product of pre-Act hiring,
rather than unlawful post-Act discrimination," Teamsters v.
United States, 431 U. S. 324
431 U. S. 360
The record showed, but the Court of Appeals, in its conclusions,
ignored, that, for the two-year period 1972-1974, 3.7% of the new
teachers hired in Hazelwood were Negroes. The court accepted the
Government's argument that the relevant labor market was St. Louis
County and the city of St. Louis without considering petitioners'
contention that St. Louis County alone (where the figure was 5.7%)
was the proper area because the city of St. Louis attempts to
maintain a 50% Negro teaching staff. The difference between the
figures may well be significant, since the disparity between 3.7%
and 5.7% may be sufficiently small to weaken the Government's other
proof, while the disparity between 3.7% and 15.4% may be
sufficiently large to reinforce it. In determining what figures
provide the most accurate basis for comparison to the hiring
figures at Hazelwood, numerous other factors, moreover, must also
be evaluated by the trial court. Pp. 433 U. S.
534 F.2d 805, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN WHITE, MARSHALL, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. BRENNAN, J., post,
p. 433 U. S. 313
and WHITE, J., post,
p. 433 U. S. 347
filed concurring opinions. STEVENS, J., filed a dissenting opinion,
p. 433 U. S.
Page 433 U. S. 301
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner Hazelwood School District covers 78 square miles
in the northern part of St. Louis County, Mo. In 1973, the Attorney
General brought this lawsuit against Hazelwood and various of its
officials, alleging that they were engaged in a "pattern or
practice" of employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §
2000e et seq.
(1970 ed. and Supp. V). [Footnote 1
] The complaint asked for an injunction
requiring Hazelwood to cease its discriminatory practices, to take
affirmative steps to obtain qualified Negro faculty members, and to
offer employment and give backpay to victims of past illegal
Hazelwood was formed from 13 rural school districts between 1949
and 1951 by a process of annexation. By the 1967-1968 school year,
17,550 students were enrolled in the district, of whom only 59 were
Negro; the number of Negro pupils increased to 576 of 25,166 in
1972-1973, a total of just over 2%.
From the beginning, Hazelwood followed relatively unstructured
procedures in hiring its teachers. Every person requesting an
application for a teaching position was sent one, and completed
applications were submitted to a central personnel
Page 433 U. S. 302
office, where they were kept on file. [Footnote 2
] During the early 1960's, the personnel
office notified all applicants whenever a teaching position became
available, but, as the number of applications on file increased in
the late 1960's and early 1970's, this practice was no longer
considered feasible. The personnel office thus began the practice
of selecting anywhere from 3 to 10 applicants for interviews at the
school where the vacancy existed. The personnel office did not
substantively screen the applicants in determining which of them to
send for interviews, other than to ascertain that each applicant,
if selected, would be eligible for state certification by the time
he began the job. Generally, those who had most recently submitted
applications were most likely to be chosen for interviews.
Interviews were conducted by a department chairman, program
coordinator, or the principal at the school where the teaching
vacancy existed. Although those conducting the interviews did fill
out forms rating the applicants in a number of respects, it is
undisputed that each school principal possessed virtually unlimited
discretion in hiring teachers for his school. The only general
guidance given to the principals was to hire the "most competent"
person available, and such intangibles as "personality,
disposition, appearance, poise, voice, articulation, and ability to
deal with people" counted heavily. The principal's choice was
routinely honored by Hazelwood's Superintendent and the Board of
In the early 1960's Hazelwood found it necessary to recruit new
teachers, and, for that purpose, members of its staff visited a
number of colleges and universities in Missouri and bordering
States. All the institutions visited were predominantly white, and
Hazelwood did not seriously recruit at either of the
Page 433 U. S. 303
two predominantly Negro four-year colleges in Missouri.
] As a buyer's
market began to develop for public school teachers, Hazelwood
curtailed its recruiting efforts. For the 1971-1972 school year,
3,127 persons applied for only 234 teaching vacancies; for the
1972-1973 school year, there were 2,373 applications for 282
vacancies. A number of the applicants who were not hired were
Negroes. [Footnote 5
Hazelwood hired its first Negro teacher in 1969. The number of
Negro faculty members gradually increased in successive years: 6 of
957 in the 1970 school year; 16 of 1,107 by the end of the 1972
school year; 22 of 1,231 in the 1973 school year. By comparison,
according to 1970 census figures, of more than 19,000 teachers
employed in that year in the St. Louis area, 15.4% were Negro. That
percentage figure included the St. Louis City School District,
which in recent years has followed a policy of attempting to
maintain a 50% Negro teaching staff. Apart from that school
district, 5.7% of the teachers in the county were Negro in
Drawing upon these historic facts, the Government mounted its
"pattern or practice" attack in the District Court upon four
different fronts. It adduced evidence of (1) a history of alleged
racially discriminatory practices, (2) statistical disparities in
hiring, (3) the standardless and largely subjective hiring
procedures, and (4) specific instances of alleged discrimination
against 55 unsuccessful Negro applicants for teaching jobs.
Hazelwood offered virtually no additional evidence in response,
relying instead on evidence introduced by the Government, perceived
deficiencies in the Government's case, and its own officially
promulgated policy "to hire all
Page 433 U. S. 304
teachers on the basis of training, preparation and
recommendations, regardless of race, color or creed." [Footnote 6
The District Court ruled that the Government had failed to
establish a pattern or practice of discrimination. The court was
unpersuaded by the alleged history of discrimination, noting that
no dual school system had ever existed in Hazelwood. The statistics
showing that relatively small numbers of Negroes were employed as
teachers were found nonprobative, on the ground that the percentage
of Negro pupils in Hazelwood was similarly small. The court found
nothing illegal or suspect in the teacher hiring procedures that
Hazelwood had followed. Finally, the court reviewed the evidence in
the 55 cases of alleged individual discrimination, and after
stating that the burden of proving intentional discrimination was
on the Government, it found that this burden had not been sustained
in a single instance. Hence, the court entered judgment for the
defendants. 392 F.
The Court of Appeals for the Eighth Circuit reversed. 534 F.2d
805. After suggesting that the District Court had assigned
inadequate weight to evidence of discriminatory conduct on the part
of Hazelwood before the effective date of Title VII, [Footnote 7
] the Court of Appeals rejected the
Page 433 U. S. 305
analysis of the statistical data as resting on an irrelevant
comparison of Negro teachers to Negro pupils in Hazelwood. The
proper comparison, in the appellate court's view, was one between
Negro teachers in Hazelwood and Negro teachers in the relevant
labor market area. Selecting St. Louis County and St. Louis City as
the relevant area, [Footnote 8
the Court of Appeals compared the 1970 census figures, showing that
15.4% of teachers in that area were Negro, to the racial
composition of Hazelwood's teaching staff. In the 1972-1973 and
1973-1974 school years, only 1.4% and 1.8%, respectively, of
Hazelwood's teachers were Negroes. This statistical disparity,
particularly when viewed against the background of the teacher
hiring procedures that Hazelwood had followed, was held to
constitute a prima facie
case of a pattern or practice of
In addition, the Court of Appeals reasoned that the trial court
had erred in failing to measure the 55 instances in which Negro
applicants were denied jobs against the four-part standard for
establishing a prima facie
case of individual
discrimination set out in this Court's opinion in McDonnell
Douglas Corp. v. Green, 411 U. S. 792
411 U. S. 802
] Applying that
Page 433 U. S. 306
standard, the appellate court found 16 cases of individual
] which "buttressed" the statistical proof. Because Hazelwood
had not rebutted the Government's prima facie
case of a
pattern or practice of racial discrimination, the Court of Appeals
directed judgment for the Government and prescribed the remedial
order to be entered. [Footnote
We granted certiorari, 429 U.S. 1037, to consider a substantial
question affecting the enforcement of a pervasive federal law.
The petitioners primarily attack the judgment of the Court of
Appeals for its reliance on "undifferentiated workforce statistics
to find an unrebutted prima facie
case of employment
] The question they raise, in short, is
Page 433 U. S. 307
whether a basic component in the Court of Appeals' finding of a
pattern or practice of discrimination -- the comparatively small
percentage of Negro employees on Hazelwood's teaching staff -- was
lacking in probative force.
This Court's recent consideration in Teamsters v. United
States, 431 U. S. 324
the role of statistics in "pattern or practice" suits under Title
VII provides substantial guidance in evaluating the arguments
advanced by the petitioners. In that case, we stated that it is the
Government's burden to
"establish by a preponderance of the evidence that racial
discrimination was the [employer's] standard operating procedure --
the regular, rather than the unusual, practice."
at 431 U. S. 336
We also noted that statistics can be an important source of proof
in employment discrimination cases, since,
"absent explanation, it is ordinarily to be expected that
nondiscriminatory hiring practices will, in time, result in a
workforce more or less representative of the racial and ethnic
composition of the population in the community from which employees
are hired. Evidence of long-lasting and gross disparity between the
composition of a workforce and that of the general population thus
may be significant even though § 703(j) makes clear that Title VII
imposes no requirement that a workforce mirror the general
at 431 U. S. 340
n. 20. See also Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252
429 U. S. 266
Washington v. Davis, 426 U. S. 229
426 U. S.
-242. Where gross statistical disparities can be
shown, they alone may, in a proper case, constitute prima
Page 433 U. S. 308
of a pattern or practice of discrimination. Teamsters,
at 431 U. S.
There can be no doubt, in light of the Teamsters
that the District Court's comparison of Hazelwood's teacher
workforce to its student population fundamentally misconceived the
role of statistics in employment discrimination cases. The Court of
Appeals was correct in the view that a proper comparison was
between the racial composition of Hazelwood's teaching staff and
the racial composition of the qualified public school teacher
population in the relevant labor market. [Footnote 13
] See Teamsters, supra
431 U. S.
-338, and n. 17. The percentage of Negroes on
Hazelwood's teaching staff in 1972-1973 was 1.4%, and in 1973-1974
it was 1.8%. By contrast, the percentage of qualified Negro
teachers in the area was, according to the 1970 census, at least
5.7%. [Footnote 14
Page 433 U. S. 309
were, on their face, substantial, the Court of Appeals erred in
substituting its judgment for that of the District Court and
holding that the Government had conclusively proved its "pattern or
The Court of Appeals totally disregarded the possibility that
this prima facie
statistical proof in the record might at
the trial court level be rebutted by statistics dealing with
Hazelwood's hiring after it became subject to Title VII. Racial
discrimination by public employers was not made illegal under Title
VII until March 24, 1972. A public employer who from that date
forward made all its employment decisions in a wholly
nondiscriminatory way would not violate Title VII even if it had
formerly maintained an all-white workforce by purposefully
excluding Negroes. [Footnote
] For this reason,
Page 433 U. S. 310
the Court cautioned in the Teamsters
opinion that, once
a prima facie
case has been established by statistical
workforce disparities, the employer must be given an opportunity to
show that "the claimed discriminatory pattern is a product of
pre-Act hiring, rather than unlawful post-Act discrimination." 431
U.S. at 431 U. S.
The record in this case showed that, for the 1972-1973 school
year, Hazelwood hired 282 new teachers, 10 of whom (3.5%) were
Negroes; for the following school year, it hired 123 new teachers,
5 of whom (4.1%) were Negroes. Over the two-year period, Negroes
constituted a total of 15 of the 405 new teachers hired (3.7%).
Although the Court of Appeals briefly mentioned these data in
reciting the facts, it wholly ignored them in discussing whether
the Government had shown a pattern or practice of discrimination.
And it gave no consideration at all to the possibility that
post-Act data as to the number of Negroes hired compared to the
total number of Negro applicants might tell a totally different
story. [Footnote 16
What the hiring figures prove obviously depends upon the figures
to which they are compared. The Court of Appeals accepted the
Government's argument that the relevant comparison was to the labor
market area of St. Louis County and the city of St. Louis, in
which, according to the 1970 census, 15.4% of all teachers were
Negro. The propriety of that comparison was vigorously disputed by
the petitioners, who urged that, because the city of St. Louis has
made special attempts to maintain a 50% Negro teaching staff,
Page 433 U. S. 311
that school district in the relevant market area distorts the
comparison. Were that argument accepted, the percentage of Negro
teachers in the relevant labor market area (St. Louis County alone)
as shown in the 1970 census would be 5.7%, rather than 15.4%.
The difference between these figures may well be important; the
disparity between 3.7% (the percentage of Negro teachers hired by
Hazelwood in 1972-1973 and 1973-1974) and 5.7% may be sufficiently
small to weaken the Government's other proof, while the disparity
between 3.7% and 15.4% may be sufficiently large to reinforce it.
Page 433 U. S. 312
which of the two figures -- or, very possibly, what intermediate
figure -- provides the most accurate basis for comparison to the
hiring figures at Hazelwood, it will be necessary to evaluate such
considerations as (i) whether the racially based hiring policies of
the St. Louis City School District were in effect as far back as
1970, the year in which the census figures were taken; [Footnote 18
] (ii) to what extent
those policies have changed the racial composition of that
district's teaching staff from what it would otherwise have been;
(iii) to what extent St. Louis' recruitment policies have diverted
to the city, teachers who might otherwise have applied to
Hazelwood; [Footnote 19
(iv) to what extent Negro teachers employed by the city would
prefer employment in other districts such as Hazelwood; and (v)
what the experience in other school districts in St. Louis County
indicates about the validity of excluding the City School District
from the relevant labor market.
It is thus clear that a determination of the appropriate
comparative figures in this case will depend upon further
evaluation by the trial court. As this Court admonished in
"[S]tatistics . . . come in infinite variety. .
. . [T]heir usefulness depends on all of the surrounding facts and
circumstances." 431 U.S. at 431 U. S. 340
Only the trial court is in a position to make the appropriate
determination after further findings. And only after such a
determination is made can a foundation be established for deciding
whether or not Hazelwood engaged in a pattern or practice of
Page 433 U. S. 313
discrimination in its employment practices in violation of the
law. [Footnote 20
We hold, therefore, that the Court of Appeals erred in
disregarding the post-Act hiring statistics in the record, and that
it should have remanded the case to the District Court for further
findings as to the relevant labor market area and for an ultimate
determination of whether Hazelwood engaged in a pattern or practice
of employment discrimination after March 24, 1972. [Footnote 21
] Accordingly, the judgment is
vacated, and the case is remanded to the District Court for further
proceedings consistent with this opinion.
It is so ordered.
[For concurring opinion of MR. JUSTICE WHITE, see post,
p 433 U. S.
Under 42 U.S.C. § 2000e-6(a), the Attorney General was
authorized to bring a civil action
"[w]henever [he] has reasonable cause to believe that any person
or group of persons is engaged in a pattern or practice of
resistance to the full enjoyment of any of the rights secured by
[Title VII], and that the pattern or practice is of such a nature
and is intended to deny the full exercise of [those rights]."
"The 1972 amendments to Title VII directed that this function be
transferred as of March 24, 1974, to the Equal Employment
Opportunity Commission, at least with respect to private employers.
§ 2000e-6(c) (1970 ed., Supp. V); see also
(1970 ed., Supp. V). The present lawsuit was instituted more than
seven months before that transfer."
Before 1954 Hazelwood's application forms required designation
of race, and those forms were in use as late as the 1962-1963
Applicants with student or substitute teaching experience at
Hazelwood were given preference if their performance had been
One of those two schools was never visited even though it was
located in nearby St. Louis. The second was briefly visited on one
occasion, but no potential applicant was interviewed.
The parties disagree whether it is possible to determine from
the present record exactly how many of the job applicants in each
of the school years were Negroes.
The defendants offered only one witness, who testified to the
total number of teachers who had applied and were hired for jobs in
the 1971-1972 and 1972-1973 school years. They introduced several
exhibits consisting of a policy manual, policy book, staff
handbook, and historical summary of Hazelwood's formation and
relatively brief existence.
As originally enacted, Title VII of the Civil Rights Act of 1984
applied only to private employers. The Act was expanded to include
state and local governmental employers by the Equal Employment
Opportunity Act of 1972, 86 Stat. 103, whose effective date was
March 24, 1972. See
42 U.S.C. §§ 2000e(a), (b), (f), (h)
(1970 ed., Supp. V).
The evidence of pre-Act discrimination relied upon by the Court
of Appeals included the failure to hire any Negro teachers until
1969, the failure to recruit at predominantly Negro colleges in
Missouri, and somewhat inconclusive evidence that Hazelwood was
responsible for a 1962 Mississippi newspaper advertisement for
teacher applicants that specified "white only."
The city of St. Louis is surrounded by, but not included in, St.
Louis County. Mo.Ann.Stat. § 46.145 (1966).
Under McDonnell Douglas,
a prima facie
illegal employment discrimination is established by showing
"(i) that [an individual] belongs to a racial minority; (ii)
that he applied and was qualified for a job for which the employer
was seeking applicants; (iii) that, despite his qualifications, he
was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from
persons of complainant's qualifications."
411 U.S. at 411 U. S. 802
Upon proof of these four elements, "[t]he burden then must shift to
the employer to articulate some legitimate, nondiscriminatory
reason for the employee's rejection." Ibid.
The Court of Appeals held that none of the 16 prima
cases of individual discrimination had been rebutted by
the petitioners. See
534 F.2d at 814.
The District Court was directed to order that the petitioners
cease from discriminating on the basis of race or color in the
hiring of teachers, promulgate accurate job descriptions and hiring
criteria, recruit Negro and white applicants on an equal basis,
give preference in filling vacancies to the 16 discriminatorily
rejected applicants, make appropriate backpay awards, and submit
periodic reports to the Government on its progress in hiring
qualified Negro teachers. Id.
In their petition for certiorari and brief on the merits, the
petitioners have phrased the question as follows:
"Whether a court may disregard evidence that an employer has
treated actual job applicants in a nondiscriminatory manner and
rely on undifferentiated workforce statistics to find an unrebutted
case of employment discrimination in violation
of Title VII of the Civil Rights Act of 1964."
Their petition for certiorari and brief on the merits did raise
a second question:
"Whether Congress has authority under Section 5 of the
Fourteenth Amendment to prohibit by Title VII of the Civil Rights
Act of 1964 employment practices of an agency of a state government
in the absence of proof that the agency purposefully discriminated
against applicants on the basis of race."
That issue, however, is not presented by the facts in this case.
The Government's opening statement in the trial court explained
that its evidence was designed to show that the scarcity of Negro
teachers at Hazelwood "is the result of purpose" and is
attributable to "deliberately continued employment policies." Thus
here, as in Teamsters v. United States, 431 U.
"[t]he Government's theory of discrimination was simply that the
[employer], in violation of § 703(a) of Title VII, regularly and
purposefully treated Negroes . . . less favorably than white
at 431 U. S. 335
the comparison between the percentage of
Negroes on the employer's workforce and the percentage in the
general area-wide population was highly probative, because the job
skill there involved -- the ability to drive a truck -- is one that
many persons possess or can fairly readily acquire. When special
qualifications are required to fill particular jobs, comparisons to
the general population (rather than to the smaller group of
individuals who possess the necessary qualifications) may have
little probative value. The comparative statistics introduced by
the Government in the District Court, however, were properly
limited to public school teachers, and therefore this is not a case
like Mayor v. Educational Equality League, 415 U.
, in which the racial composition comparisons
failed to take into account special qualifications for the position
in question. Id.
at 415 U. S.
Although the petitioners concede as a general matter the
probative force of the comparative workforce statistics, they
object to the Court of Appeals' heavy reliance on these data on the
ground that applicant-flow data, showing the actual percentage of
white and Negro applicants for teaching positions at Hazelwood,
would be firmer proof. As we have noted, see n
there was no clear
evidence of such statistics. We leave it to the District Court on
remand to determine whether competent proof of those data can be
adduced. If so, it would, of course, be very relevant. Cf.
Dothard v. Rawlinson, post
at 433 U. S.
As is discussed below, the Government contends that a
comparative figure of 15.4%, rather than 5.7%, is the appropriate
one. See infra
433 U. S. 310
-312. But even assuming, arguendo,
that the 5.7% figure urged by the petitioners is correct, the
disparity between that figure and the percentage of Negroes on
Hazelwood's teaching staff would be more than four-fold for the
1972-1973 school year, and three-fold for the 1973-1974 school
year. A precise method of measuring the significance of such
statistical disparities was explained in Castaneda v.
Partida, 430 U. S. 482
430 U. S.
-497, n. 17. It involves calculation of the "standard
deviation" as a measure of predicted fluctuations from the expected
value of a sample. Using the 5.7% figure as the basis for
calculating the expected value, the expected number of Negroes on
the Hazelwood teaching staff would be roughly 63 in 1972-1973 and
70 in 1973-1974. The observed number in those years was 16 and 22,
respectively. The difference between the observed and expected
values was more than six standard deviations in 1972-1973 and more
than five standard deviations in 1973-1974. The Court in
noted that, "[a]s a general rule for such large
samples, if the difference between the expected value and the
observed number is greater than two or three standard deviations,"
then the hypothesis that teachers were hired without regard to race
would be suspect. 430 U.S. at 430 U. S. 497
This is not to say that evidence of pre-Act discrimination can
never have any probative force. Proof that an employer engaged in
racial discrimination prior to the effective date of Title VII
might, in some circumstances, support the inference that such
discrimination continued, particularly where relevant aspects of
the decisionmaking process had undergone little change.
Fed.Rule Evid. 406; Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.
, 429 U. S. 267
1 J. Wigmore, Evidence § 92 (3d ed.1940); 2 id.
302-305, 371, 375. And, of course, a public employer even before
the extension of Title VII in 1972 was subject to the command of
the Fourteenth Amendment not to engage in purposeful racial
infra. But cf. Teamsters,
431 U.S. at
431 U. S.
Indeed; under the statistical methodology explained in
Castaneda v. Partida, supra
at 430 U. S.
-497, n. 17, involving the calculation of the
standard deviation as a measure of predicted fluctuations, the
difference between using 15.4% and 5.7% as the area-wide figure
would be significant. If the 15.4% figure is taken as the basis for
comparison, the expected number of Negro teachers hired by
Hazelwood in 1972-1973 would be 43 (rather than the actual figure
of 10) of a total of 282, a difference of more than five standard
deviations; the expected number in 1973-1974 would be 19 (rather
than the actual figure 5) of a total of 123, a difference of more
than three standard deviations. For the two years combined, the
difference between the observed number of 15 Negro teachers hired
(of a total of 405) would vary from the expected number of 62 by
more than six standard deviations. Because a fluctuation of more
than two or three standard deviations would undercut the hypothesis
that decisions were being made randomly with respect to race, 430
U.S. at 430 U. S. 497
n. 17, each of these statistical comparisons would reinforce,
rather than rebut, the Government's other proof. If, however, the
5.7% area-wide figure is used, the expected number of Negro
teachers hired in 1972-1973 would be roughly 16, less than two
standard deviations from the observed number of 10; for 1973-1974,
the expected value would be roughly seven, less than one standard
deviation from the observed value of 5; and, for the two years
combined, the expected value of 23 would be less than two standard
deviations from the observed total of 15. A more precise method of
analyzing these statistics confirms the results of the standard
deviation analysis. See
F. Mosteller, R. Rourke, & G.
Thomas, Probability with Statistical Applications 494 (2d
These observations are not intended to suggest that precise
calculations of statistical significance are necessary in employing
statistical proof, but merely to highlight the importance of the
choice of the relevant labor market area.
In 1970, Negroes constituted only 42% of the faculty in St.
Louis city schools, which could indicate either that the city's
policy was not yet in effect or simply that its goal had not yet
The petitioners observe, for example, that Harris Teachers
College in St. Louis, whose 1973 graduating class was 60% Negro, is
operated by the city. It is the petitioners' contention that the
city's public elementary and secondary schools occupy an
advantageous position in the recruitment of Harris graduates.
Because the District Court focused on a comparison between the
percentage of Negro teachers and Negro pupils in Hazelwood, it did
not undertake an evaluation of the relevant labor market, and its
casual dictum that the inclusion of the city of St. Louis
"distorted" the labor market statistics was not based upon valid
criteria. 392 F.
, 1287 (ED Mo.).
It will also be open to the District Court on remand to
determine whether sufficiently reliable applicant-flow data are
available to permit consideration of the petitioners' argument that
those data may undercut a statistical analysis dependent upon
MR. JUSTICE BRENNAN, concurring.
I join the Court's opinion. Similarly to our decision in
Dayton Board of Education v. Brinkman, post,
433 U. S. 406
today's opinion revolves around the relative factfinding roles of
district courts and courts of appeals. It should be plain, however,
that the liberal substantive standards for establishing a Title VII
violation, including the usefulness of statistical proof, are
In the present case, the District Court had adopted a wholly
inappropriate legal standard of discrimination, and therefore
Page 433 U. S. 314
did not evaluate the factual record before it in a meaningful
way. This remand in effect orders it to do so. It is my
understanding, as apparently it is MR. JUSTICE STEVENS,
at 433 U. S. 318
n. 5, that the statistical inquiry mentioned by the Court,
at 433 U. S. 311
n. 17, and accompanying text, can be of no help to the Hazelwood
School Board in rebutting the Government's evidence of
discrimination. Indeed, even if the relative comparison market is
found to be 5.7%, rather than 15.4% black, the applicable
statistical analysis, at most, will not serve to bolster the
Government's case. This obviously is of no aid to Hazelwood in
meeting its burden of proof. Nonetheless, I think that the remand
directed by the Court is appropriate, and will allow the parties to
address these figures and calculations with greater care and
precision. I also agree that, given the misapplication of governing
legal principles by the District Court, Hazelwood reasonably should
be given the opportunity to come forward with more focused and
specific applicant-flow data in the hope of answering the
Government's prima facie
case. If, as presently seems
likely, reliable applicant data are found to be lacking, the
conclusion reached by my Brother STEVENS will inevitably be
MR. JUSTICE STEVENS, dissenting.
The basic framework in a pattern-or-practice suit brought by the
Government under Title VII of the Civil Rights Act of 1964 is the
same as that in any other lawsuit. The plaintiff has the burden of
proving a prima facie
case; if he does so, the burden of
rebutting that case shifts to the defendant. [Footnote 2/1
] In this
Page 433 U. S. 315
case, since neither party complains that any relevant evidence
was excluded, our task is to decide (1) whether the Government's
evidence established a prima facie
case; and (2), if so,
whether the remaining evidence is sufficient to carry Hazelwood's
burden of rebutting that prima facie
The first question is clearly answered by the Government's
statistical evidence, its historical evidence, and its evidence
relating to specific acts of discrimination.
One-third of the teachers hired by Hazelwood resided in the City
of St. Louis at the time of their initial employment. As Mr.
Justice Clark explained in his opinion for the Court of Appeals, it
was therefore appropriate to treat the city, as well as the county,
as part of the relevant labor market. [Footnote 2/2
Page 433 U. S. 316
In that market, 15% of the teachers were black. In the Hazelwood
District at the time of trial, less than 2% of the teachers were
black. An even more telling statistic is that, after Title VII
became applicable to it, only 3.7% of the new teachers hired by
Hazelwood were black. Proof of these gross disparities was, in
itself, sufficient to make out a prima facie
discrimination. See Teamsters v. United States,
431 U. S. 324
431 U. S. 339
Castaneda v. Partida, 430 U. S. 482
430 U. S.
As a matter of history, Hazelwood employed no black teachers
until 1969. Both before and after the 1972 amendment making the
statute applicable to public school districts, Hazelwood used a
standardless and largely subjective hiring procedure. Since
"relevant aspects of the decisionmaking process had undergone
little change," it is proper to infer that the pre-Act policy of
preferring white teachers continued to influence Hazelwood's hiring
practices. [Footnote 2/3
The inference of discrimination was corroborated by post-Act
evidence that Hazelwood had refused to hire 16 qualified black
applicants for racial reasons. Taking the Government's evidence as
a whole, there can be no doubt about the sufficiency of its
Page 433 U. S. 317
Hazelwood "offered virtually no additional evidence in
at 433 U. S. 303
It challenges the Government's statistical analysis by claiming
that the city of St. Louis should be excluded from the relevant
market and pointing out that only 5.7% of the teachers in the
county (excluding the city) were black. It further argues that the
city's policy of trying to maintain a 50% black teaching staff
diverted teachers from the county to the city. There are two
separate reasons why these arguments are insufficient: they are not
supported by the evidence; even if true, they do not overcome the
The petitioners offered no evidence concerning wage
differentials, commuting problems, or the relative advantages of
teaching in an inner-city school as opposed to a suburban school.
Without any such evidence in the record, it is difficult to
understand why the simple fact that the city was the source of a
third of Hazelwood's faculty should not be sufficient to
demonstrate that it is a part of the relevant market. The city's
policy of attempting to maintain a 50/50 ratio clearly does not
undermine that conclusion, particularly when the record reveals no
shortage of qualified black applicants in either Hazelwood or other
suburban school districts. [Footnote
] Surely not all of the 2,000 black teachers employed by the
city were unavailable for employment in Hazelwood at the time of
their initial hire.
But even if it were proper to exclude the city of St. Louis from
the market, the statistical evidence would still tend to prove
discrimination. With the city excluded, 5.7% of the teachers in the
remaining market were black. On the basis of a random selection,
one would therefore expect 5.7% of
Page 433 U. S. 318
the 405 teachers hired by Hazelwood in the 1972-1973 and
1973-1974 school years to have been black. But instead of 23 black
teachers, Hazelwood hired only 15, less than two-thirds of the
expected number. Without the benefit of expert testimony, I would
hesitate to infer that the disparity between 23 and 15 is great
enough, in itself, to prove discrimination. [Footnote 2/5
] It is perfectly clear, however, that
whatever probative force this disparity has, it tends to prove
discrimination, and does absolutely nothing in the way of carrying
Hazelwood's burden of overcoming the Government's prima
Absolute precision in the analysis of market data is too much to
expect. We may fairly assume that a nondiscriminatory selection
process would have resulted in the hiring of somewhere between the
15% suggested by the Government and the 5.7% suggested by
petitioners, or perhaps 30 or 40 black teachers, instead of the 15
actually hired. [Footnote 2/6
that assumption, the Court of Appeals' determination that there
were 16 individual cases of discriminatory refusal to hire black
applicants in the post-1972 period seems remarkably accurate.
In sum, the Government is entitled to prevail on the present
record. It proved a prima facie
case, which Hazelwood
failed to rebut. Why, then, should we burden a busy federal court
with another trial? Hazelwood had an opportunity to offer evidence
to dispute the 16 examples of racially motivated refusals to hire;
but as the Court notes, the Court of Appeals has already
"held that none of the 16 prima facie
Page 433 U. S. 319
individual discrimination had been rebutted by the petitioners.
534 F.2d 805, 814 (CA8)."
at 433 U. S. 306
n. 10. Hazelwood also had an opportunity to offer any evidence it
could muster to show a change in hiring practices or to contradict
the fair inference to be drawn from the statistical evidence.
Instead, it "offered virtually no additional evidence in response,"
at 433 U. S.
Perhaps "a totally different story" might be told by other
statistical evidence that was never presented, ante
433 U. S. 310
No lawsuit has ever been tried in which the losing party could not
have pointed to a similar possibility. [Footnote 2/7
] It is always possible to imagine more
evidence which could have been offered, but, at some point,
litigation must come to an end. [Footnote 2/8
Page 433 U. S. 320
Rather than depart from well established rules of procedure, I
would affirm the judgment of the Court of Appeals.U [Footnote 2/9
] Since that judgment reflected
a correct appraisal of the record, I see no reason to prolong this
litigation with a remand neither side requested. [Footnote 2/10
"At the initial 'liability' stage of a pattern-or-practice suit,
the Government is not required to offer evidence that each person
for whom it will ultimately seek relief was a victim of the
employer's discriminatory policy. Its burden is to establish a
case that such a policy existed. The burden
then shifts to the employer to defeat the prima facie
showing of a pattern or practice by demonstrating that the
Government's proof is either inaccurate or insignificant. An
employer might show, for example, that the claimed discriminatory
pattern is a product of pre-Act hiring, rather than unlawful
post-Act discrimination, or that, during the period it is alleged
to have pursued a discriminatory policy, it made too few employment
decisions to justify the inference that it had engaged in a regular
practice of discrimination."
Teamsters v. United States, 431 U.
, 431 U. S.
"We accept the Government's contention that St. Louis City and
County is the relevant labor market area for our consideration. The
relevant labor market area is that area from which the employer
draws its employees. United States v. Ironworkers Local
443 F.2d 544, 551 n.19 (9th Cir.1971). Of the 176 teachers
hired by Hazelwood between October, 1972, and September, 1973,
approximately 80 percent resided in St. Louis City and County at
the time of their initial employment. Approximately one-third of
the teachers hired during this period resided in the City of St.
Louis and 40 percent resided in areas of St. Louis County other
than the Hazelwood District."
534 F.2d 805, 811-812, n. 7 (1976).
It is noteworthy that, in the Court of Appeals, Chief Judge
Gibson, in dissent, though urging -- as Hazelwood had in the
District Court -- that the labor market was even broader than the
Government contended, id.
at 821, did not question the
propriety of including the city in the same market as the county,
Defendants' Brief and Memorandum in Support of Its
Proposed Findings of Fact and Conclusions of Law, filed on Aug. 21,
1974, in Civ.Act. No. 73-C-553(A) (ED Mo.), p. 24. In this Court,
petitioners had abandoned any argument similar to that made
Proof that an employer engaged in racial discrimination prior to
the effective date of the Act creates the inference that such
"particularly where relevant aspects of the decisionmaking
process [have] undergone little change. Cf.
406; Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U. S.
, 429 U. S. 267
; 1 J. Wigmore,
Evidence § 92 (3d ed.1940); 2 id.
§§ 302-305, 371, 375.
And, of course, a public employer even before the extension of
Title VII in 1972 was subject to the command of the Fourteenth
Amendment not to engage in purposeful racial discrimination."
at 433 U. S.
-310, n. 15.
Since Hazelwood's hiring before 1972 was so clearly
discriminatory, there is some irony in its claim that "Hazelwood
continued [after 1972] to select its teachers on the same careful
basis that it had relied on before in staffing its growing system."
Brief for Petitioners 29-30.
"Had there been evidence obtainable to contradict and disprove
the testimony offered by [the Government], it cannot be assumed
that the State would have refrained from introducing it."
Pierre v. Louisiana, 306 U. S. 354
306 U. S.
After I had drafted this opinion, one of my law clerks advised
me that, given the size of the two-year sample, there is only about
a 5% likelihood that a disparity this large would be produced by a
random selection from the labor pool. If his calculation (which was
made using the method described in H. Blalock, Social Statistics
151-173 (1972)) is correct, it is easy to understand why Hazelwood
offered no expert testimony.
Some of the other school districts in the county have a 10%
ratio of blacks on their faculties. See
Exhibit 54 in Civ.Act. No. 73-C553(A) (ED Mo.1975); Brief for
United States 30 n. 30.
Since Hazelwood failed to offer any "applicant-flow data" at the
trial, and since it does not now claim to have any newly discovered
evidence, I am puzzled by MR. JUSTICE BRENNAN's explanation of the
justification for a remand. Indeed, after the first trial was
concluded, Hazelwood emphasized the fact that no evidence of this
kind had been presented; it introduced no such evidence itself. It
"There is absolutely no evidence in this case that provides any
basis for making a comparison between black applicants and white
applicants and their treatment by the Hazelwood School District
relative to hiring or not being hired for a teaching position."
Defendants' Brief and Memorandum in Support of Its Proposed
Findings of Fact and Conclusions of Law, supra, 433
fn2/2|>n. 2, at 22.
My analysis of this case is somewhat similar to MR. JUSTICE
REHNQUIST's analysis in Dothard v. Rawlinson:
"If the defendants in a Title VII suit believe there to be any
reason to discredit plaintiffs' statistics that does not appear on
their face, the opportunity to challenge them is available to the
defendants just as in any other lawsuit. They may endeavor to
impeach the reliability of the statistical evidence, they may offer
rebutting evidence, they may disparage in arguments or in briefs
the probative weight which the plaintiffs' evidence should be
accorded. Since I agree with the Court that appellants made
virtually no such effort, . . . I also agree with it that the
District Court cannot be said to have erred as a matter of law in
finding that a prima facie
case had been made out in the
at 433 U. S.
-339 (concurring opinion).
It is interesting to compare the disposition in this case with
that in Castaneda v. Partida, 430 U.
. In Castaneda,
as in this case,
"[i]nexplicably, the State introduced practically no evidence,"
at 430 U. S. 498
But in Castaneda,
unlike the present case, the Court
affirmed the finding of discrimination, rather than giving the
State a second chance at trying its case. (It should be noted that
Court expressly stated that it was possible
that the statistical discrepancy could have been explained by the
at 430 U. S.
Hazelwood's brief asks only for a remand "for reconsideration of
the alleged individual cases of discrimination. . . ." Brief for
Petitioners 78. Hazelwood explains:
"[The question raised in its petition for certiorari is] a
question of law. It is a question of what sort of evidentiary
showing satisfies Title VII. . . . The question is whether, on the
evidence of record, an unrebutted prima facie
Reply Brief for Petitioners 2.