Negro employees at respondent's generating plant brought this
action, pursuant to Title VII of the Civil Rights Act of 1964,
challenging respondent's requirement of a high school diploma or
passing of intelligence tests as a condition of employment in or
transfer to jobs at the plant. These requirements were not directed
at or intended to measure ability to learn to perform a particular
job or category of jobs. While § 703(a) of the Act makes it an
unlawful employment practice for an employer to limit, segregate,
or classify employees to deprive them of employment opportunities
or adversely to affect their status because of race, color,
religion, sex, or national origin, § 703(h) authorizes the use of
any professionally developed ability test, provided that it is not
designed, intended, or used to discriminate. The District Court
found that respondent's former policy of racial discrimination had
ended, and that Title VII, being prospective only, did not reach
the prior inequities. The Court of Appeals reversed in part,
rejecting the holding that residual discrimination arising from
prior practices was insulated from remedial action, but agreed with
the lower court that there was no showing of discriminatory purpose
in the adoption of the diploma and test requirements. It held that,
absent such discriminatory purpose, use of the requirements was
permitted, and rejected the claim that, because a disproportionate
number of Negroes was rendered ineligible for promotion, transfer,
or employment, the requirements were unlawful unless shown to be
job-related.
Held:
1. The Act requires the elimination of artificial, arbitrary,
and unnecessary barriers to employment that operate invidiously to
discriminate on the basis of race, and if, as here, an employment
practice that operates to exclude Negroes cannot be shown to be
related to job performance, it is prohibited, notwithstanding the
employer's lack of discriminatory intent. Pp.
401 U. S.
429-433.
2. The Act does not preclude the use of testing or measuring
procedures, but it does proscribe giving them controlling force
unless
Page 401 U. S. 425
they are demonstrably a reasonable measure of job performance.
Pp.
401 U. S.
433-436.
420 F.2d 1225, reversed in part.
BURGER, C.J., delivered the opinion of the Court, in which all
members joined except BRENNAN, J., who took no part in the
consideration or decision of the case.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted the writ in this case to resolve the question whether
an employer is prohibited by the Civil Rights Act of 1964, Title
VII, from requiring a high school education
Page 401 U. S. 426
or passing of a standardized general intelligence test as a
condition of employment in or transfer to jobs when (a) neither
standard is shown to be significantly related to successful job
performance, (b) both requirements operate to disqualify Negroes at
a substantially higher rate than white applicants, and (c) the jobs
in question formerly had been filled only by white employees as
part of a longstanding practice of giving preference to whites.
[
Footnote 1]
Congress provided, in Title VII of the Civil Rights Act of 1964,
for class actions for enforcement of provisions of the Act, and
this proceeding was brought by a group of incumbent Negro employees
against Duke Power Company. All the petitioners are employed at the
Company's Dan River Steam Station, a power generating facility
located at Draper, North Carolina. At the time this action was
instituted, the Company had 95 employees at the Dan River Station,
14 of whom were Negroes; 13 of these are petitioners here.
The District Court found that, prior to July 2, 1965, the
effective date of the Civil Rights Act of 1964, the
Page 401 U. S. 427
Company openly discriminated on the basis of race in the hiring
and assigning of employees at its Dan River plant. The plant was
organized into five operating departments: (1) Labor, (2) Coal
Handling, (3) Operations, (4) Maintenance, and (5) Laboratory and
Test. Negroes were employed only in the Labor Department, where the
highest paying jobs paid less than the lowest paying jobs in the
other four "operating" departments, in which only whites were
employed. [
Footnote 2]
Promotions were normally made within each department on the basis
of job seniority. Transferees into a department usually began in
the lowest position.
In 1955, the Company instituted a policy of requiring a high
school education for initial assignment to any department except
Labor, and for transfer from the Coal Handling to any "inside"
department (Operations, Maintenance, or Laboratory). When the
Company abandoned its policy of restricting Negroes to the Labor
Department in 1965, completion of high school also was made a
prerequisite to transfer from Labor to any other department. From
the time the high school requirement was instituted to the time of
trial, however, white employees hired before the time of the high
school education requirement continued to perform satisfactorily
and achieve promotions in the "operating" departments. Findings on
this score are not challenged.
The Company added a further requirement for new employees on
July 2, 1965, the date on which Title VII became effective. To
qualify for placement in any but the Labor Department, it became
necessary to register satisfactory scores on two professionally
prepared aptitude
Page 401 U. S. 428
tests, as well as to have a high school education. Completion of
high school alone continued to render employees eligible for
transfer to the four desirable departments from which Negroes had
been excluded if the incumbent had been employed prior to the time
of the new requirement. In September, 1965, the Company began to
permit incumbent employees who lacked a high school education to
qualify for transfer from Labor or Coal Handling to an "inside" job
by passing two tests -- the Wonderlic Personnel Test, which
purports to measure general intelligence, and the Bennett
Mechanical Comprehension Test. Neither was directed or intended to
measure the ability to learn to perform a particular job or
category of jobs. The requisite scores used for both initial hiring
and transfer approximated the national median for high school
graduates. [
Footnote 3]
The District Court had found that, while the Company previously
followed a policy of overt racial discrimination in a period prior
to the Act, such conduct had ceased. The District Court also
concluded that Title VII was intended to be prospective only, and,
consequently, the impact of prior inequities was beyond the reach
of corrective action authorized by the Act.
The Court of Appeals was confronted with a question of first
impression, as are we, concerning the meaning of Title VII. After
careful analysis, a majority of that court concluded that a
subjective test of the employer's intent should govern,
particularly in a close case, and that, in this case, there was no
showing of a discriminatory purpose in the adoption of the diploma
and test requirements. On this basis, the Court of Appeals
concluded there was no violation of the Act.
Page 401 U. S. 429
The Court of Appeals reversed the District Court in part,
rejecting the holding that residual discrimination arising from
prior employment practices was insulated from remedial action.
[
Footnote 4] The Court of
Appeals noted, however, that the District Court was correct in its
conclusion that there was no showing of a racial purpose or
invidious intent in the adoption of the high school diploma
requirement or general intelligence test, and that these standards
had been applied fairly to whites and Negroes alike. It held that,
in the absence of a discriminatory purpose, use of such
requirements was permitted by the Act. In so doing, the Court of
Appeals rejected the claim that, because these two requirements
operated to render ineligible a markedly disproportionate number of
Negroes, they were unlawful under Title VII unless shown to be
job-related. [
Footnote 5] We
granted the writ on these claims. 399 U.S. 926.
The objective of Congress in the enactment of Title VII is plain
from the language of the statute. It was to achieve equality of
employment opportunities and remove
Page 401 U. S. 430
barriers that have operated in the past to favor an identifiable
group of white employees over other employees. Under the Act,
practices, procedures, or tests neutral on their face, and even
neutral in terms of intent, cannot be maintained if they operate to
"freeze" the
status quo of prior discriminatory employment
practices.
The Court of Appeals' opinion, and the partial dissent, agreed
that, on the record in the present case, "whites register far
better on the Company's alternative requirements" than Negroes.
[
Footnote 6] 420 F.2d 1225,
1239 n. 6. This consequence would appear to be directly traceable
to race. Basic intelligence must have the means of articulation to
manifest itself fairly in a testing process. Because they are
Negroes, petitioners have long received inferior education in
segregated schools, and this Court expressly recognized these
differences in
Gaston County v. United States,
395 U. S. 285
(1969). There, because of the inferior education received by
Negroes in North Carolina, this Court barred the institution of a
literacy test for voter registration on the ground that the test
would abridge the right to vote indirectly on account of race.
Congress did not intend by Title VII, however, to guarantee a job
to every person regardless of qualifications. In short, the Act
does not command that any
Page 401 U. S. 431
person be hired simply because he was formerly the subject of
discrimination, or because he is a member of a minority group.
Discriminatory preference for any group, minority or majority, is
precisely and only what Congress has proscribed. What is required
by Congress is the removal of artificial, arbitrary, and
unnecessary barriers to employment when the barriers operate
invidiously to discriminate on the basis of racial or other
impermissible classification.
Congress has now provided that tests or criteria for employment
or promotion may not provide equality of opportunity merely in the
sense of the fabled offer of milk to the stork and the fox. On the
contrary, Congress has now required that the posture and condition
of the job seeker be taken into account. It has -- to resort again
to the fable -- provided that the vessel in which the milk is
proffered be one all seekers can use. The Act 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.
On the record before us, neither the high school completion
requirement nor the general intelligence test is shown to bear a
demonstrable relationship to successful performance of the jobs for
which it was used. Both were adopted, as the Court of Appeals
noted, without meaningful study of their relationship to job
performance ability. Rather, a vice-president of the Company
testified, the requirements were instituted on the Company's
judgment that they generally would improve the overall quality of
the workforce.
The evidence, however, shows that employees who have not
completed high school or taken the tests have continued to perform
satisfactorily, and make progress in departments for which the high
school and test criteria
Page 401 U. S. 432
are now used. [
Footnote 7]
The promotion record of present employees who would not be able to
meet the new criteria thus suggests the possibility that the
requirements may not be needed even for the limited purpose of
preserving the avowed policy of advancement within the Company. In
the context of this case, it is unnecessary to reach the question
whether testing requirements that take into account capability for
the next succeeding position or related future promotion might be
utilized upon a showing that such long-range requirements fulfill a
genuine business need. In the present case, the Company has made no
such showing.
The Court of Appeals held that the Company had adopted the
diploma and test requirements without any "intention to
discriminate against Negro employees." 420 F.2d at 1232. We do not
suggest that either the District Court or the Court of Appeals
erred in examining the employer's intent; but good intent or
absence of discriminatory intent does not redeem employment
procedures or testing mechanisms that operate as "built-in
headwinds" for minority groups and are unrelated to measuring job
capability.
The Company's lack of discriminatory intent is suggested by
special efforts to help the undereducated employees through Company
financing of two-thirds the cost of tuition for high school
training. But Congress directed the thrust of the Act to the
consequences of employment practices, not simply the motivation.
More than that, Congress has placed on the employer the burden of
showing that any given requirement must have a manifest
relationship to the employment in question.
Page 401 U. S. 433
The facts of this case demonstrate the inadequacy of broad and
general testing devices, as well as the infirmity of using diplomas
or degrees as fixed measures of capability. History is filled with
examples of men and women who rendered highly effective performance
without the conventional badges of accomplishment in terms of
certificates, diplomas, or degrees. Diplomas and tests are useful
servants, but Congress has mandated the common sense proposition
that they are not to become masters of reality.
The Company contends that its general intelligence tests are
specifically permitted by § 703(h) of the Act. [
Footnote 8] That section authorizes the use of
"any professionally developed ability test" that is not "designed,
intended
or used to discriminate because of race. . . ."
(Emphasis added.)
The Equal Employment Opportunity Commission, having enforcement
responsibility, has issued guidelines interpreting § 703(h) to
permit only the use of job-related tests. [
Footnote 9] The administrative interpretation of
the
Page 401 U. S. 434
Act by the enforcing agency is entitled to great deference.
See, e.g., United States v. City of Chicago, 400 U. S.
8 (1970);
Udall v. Tallman, 380 U. S.
1 (1965);
Power Reactor Co. v. Electricians,
367 U. S. 396
(1961). Since the Act and its legislative history support the
Commission's construction, this affords good reason to treat the
guidelines as expressing the will of Congress.
Section 703(h) was not contained in the House version of the
Civil Rights Act, but was added in the Senate during extended
debate. For a period, debate revolved around claims that the bill,
as proposed, would prohibit all testing and force employers to hire
unqualified persons simply because they were part of a group
formerly subject to job discrimination. [
Footnote 10] Proponents of Title VII sought throughout
the debate to assure the critics that the Act would have no effect
on job-related tests. Senators Case of New Jersey and Clark of
Pennsylvania, comanagers of the bill on the Senate floor, issued a
memorandum explaining that the proposed Title VII
"expressly protects the employer's right to insist that any
prospective applicant, Negro or white,
must meet the applicable
job qualifications. Indeed, the very purpose of title VII is
to promote hiring on the basis of job qualifications, rather than
on the basis of race or color."
110 Cong.Rec. 7247. [
Footnote
11] (Emphasis added.) Despite
Page 401 U. S. 435
these assurances, Senator Tower of Texas introduced an amendment
authorizing "professionally developed ability tests." Proponents of
Title VII opposed the amendment because, as written, it would
permit an employer to give any test
"whether it was a good test or not, so long as it was
professionally designed. Discrimination could actually exist under
the guise of compliance with the statute."
110 Cong.Rec. 13504 (remarks of Sen. Case).
The amendment was defeated, and, two days later, Senator Tower
offered a substitute amendment which was adopted verbatim, and is
now the testing provision of § 703(h). Speaking for the supporters
of Title VII, Senator Humphrey, who had vigorously opposed the
first amendment, endorsed the substitute amendment, stating:
"Senators on both sides of the aisle who were deeply interested
in title VII have examined the text of this
Page 401 U. S. 436
amendment, and have found it to be in accord with the intent and
purpose of that title."
110 Cong.Rec. 13724. The amendment was then adopted. [
Footnote 12] From the sum of the
legislative history relevant in this case, the conclusion is
inescapable that the EEOC's construction of § 703(h) to require
that employment tests be job-related comports with congressional
intent.
Nothing in the Act precludes the use of testing or measuring
procedures; obviously they are useful. What Congress has forbidden
is giving these devices and mechanisms controlling force unless
they are demonstrably a reasonable measure of job performance.
Congress has not commanded that the less qualified be preferred
over the better qualified simply because of minority origins. Far
from disparaging job qualifications as such, Congress has made such
qualifications the controlling factor, so that race, religion,
nationality, and sex become irrelevant. What Congress has commanded
is that any tests used must measure the person for the job, and not
the person in the abstract.
The judgment of the Court of Appeals is, as to that portion of
the judgment appealed from, reversed.
MR. JUSTICE BRENNAN took no part in the consideration or
decision of this case.
[
Footnote 1]
The Act provides:
"Sec. 703. (a) It shall be an unlawful employment practice for
an employer -- "
"
* * * *"
"(2) to limit, segregate, or classify his employees in any way
which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee because of such individual's race, color, religion, sex,
or national origin."
"
* * * *"
"(h) Notwithstanding any other provision of this title, 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 of race, color, religion, sex or national origin. . .
."
78 Stat. 255, 42 U.S.C. § 2000e-2.
[
Footnote 2]
A Negro was first assigned to a job in an operating department
in August, 1966, five months after charges had been filed with the
Equal Employment Opportunity Commission. The employee, a high
school graduate who had begun in the Labor Department in 1953, was
promoted to a job in the Coal Handling Department.
[
Footnote 3]
The test standards are thus more stringent than the high school
requirement, since they would screen out approximately half of all
high school graduates.
[
Footnote 4]
The Court of Appeals ruled that Negroes employed in the Labor
Department at a time when there was no high school or test
requirement for entrance into the higher paying departments could
not now be made subject to those requirements, since whites hired
contemporaneously into those departments were never subject to
them. The Court of Appeals also required that the seniority rights
of those Negroes be measured on a plant-wide, rather than a
departmental, basis. However, the Court of Appeals denied relief to
the Negro employees without a high school education or its
equivalent who were hired into the Labor Department after
institution of the educational requirement.
[
Footnote 5]
One member of that court disagreed with this aspect of the
decision, maintaining, as do the petitioners in this Court, that
Title VII prohibits the use of employment criteria that operate in
a racially exclusionary fashion and do not measure skills or
abilities necessary to performance of the jobs for which those
criteria are used.
[
Footnote 6]
In North Carolina, 1960 census statistics show that, while 34%
of white males had completed high school, only 12% of Negro males
had done so. U.S. Bureau of the Census, U.S. Census of Population:
1960, Vol. 1, Characteristics of the Population, pt. 35, Table
47.
Similarly, with respect to standardized tests, the EEOC in one
case found that use of a battery of tests, including the Wonderlic
and Bennett tests used by the Company in the instant case, resulted
in 58% of whites passing the tests, as compared with only 6% of the
blacks. Decision of EEOC, CCH Empl.Prac. Guide, � 17,304.53 (Dec.
2, 1966).
See also Decision of EEOC 70-552, CCH Empl.Prac.
Guide, � 6139 (Feb.19, 1970).
[
Footnote 7]
For example, between July 2, 1965, and November 14, 1966, the
percentage of white employees who were promoted but who were not
high school graduates was nearly identical to the percentage of
nongraduates in the entire white workforce.
[
Footnote 8]
Section 703(h) applies only to tests. It has no applicability to
the high school diploma requirement.
[
Footnote 9]
EEOC Guidelines on Employment Testing Procedures, issued August
24, 1966, provide:
"The Commission accordingly interprets 'professionally developed
ability test' to mean a test which fairly measures the knowledge or
skills required by the particular job or class of jobs which the
applicant seeks, or which fairly affords the employer a chance to
measure the applicant's ability to perform a particular job or
class of jobs. The fact that a test was prepared by an individual
or organization claiming expertise in test preparation does not,
without more, justify its use within the meaning of Title VII."
The EEOC position has been elaborated in the new Guidelines on
Employee Selection Procedures, 29 CFR § 1607, 35 Fed.Reg. 12333
(Aug. 1, 1970). These guidelines demand that employers using tests
have available
"data demonstrating that the test is predictive of or
significantly correlated with important elements of work behavior
which comprise or are relevant to the job or jobs for which
candidates are being evaluated."
Id. at § 1607.4(c).
[
Footnote 10]
The congressional discussion was prompted by the decision of a
hearing examiner for the Illinois Fair Employment Commission in
Myart v. Motorola Co. (The decision is reprinted at 110
Cong.Rec. 5662.) That case suggested that standardized tests on
which whites performed better than Negroes could never be used. The
decision was taken to mean that such tests could never be justified
even if the needs of the business required them. A number of
Senators feared that Title VII might produce a similar result.
See remarks of Senators Ervin, 110 Cong.Rec. 5614-5616;
Smathers,
id. at 5999-6000; Holland,
id. at
7012-7013; Hill,
id. at 8447; Tower,
id. at 9024;
Talmadge,
id. at 9025-9026; Fulbright,
id. at
9599-9600; and Ellender,
id. at 9600.
[
Footnote 11]
The Court of Appeals majority, in finding no requirement in
Title VII that employment tests be job-related, relied in part on a
quotation from an earlier Clark-Case interpretative memorandum
addressed to the question of the constitutionality of Title VII.
The Senators said in that memorandum:
"There is no requirement in title VII that employers abandon
bona fide qualification tests where, because of
differences in background and education, members of some groups are
able to perform better on these tests than members of other groups.
An employer may set his qualifications as high as he likes, he may
test to determine which applicants have these qualifications, and
he may hire, assign, and promote on the basis of test
performance."
110 Cong.Rec. 7213. However, nothing there stated conflicts with
the later memorandum dealing specifically with the debate over
employer testing, 110 Cong.Rec. 7247 (quoted from in the text
above), in which Senators Clark and Case explained that tests which
measure "applicable job qualifications" are permissible under Title
VII. In the earlier memorandum, Clark and Case assured the Senate
that employers were not to be prohibited from using tests that
determine qualifications. Certainly a reasonable interpretation of
what the Senators meant, in light of the subsequent memorandum
directed specifically at employer testing, was that nothing in the
Act prevents employers from requiring that applicants be fit for
the job.
[
Footnote 12]
Senator Tower's original amendment provided in part that a test
would be permissible
"if, . . . in the case of any individual who is seeking
employment with such employer, such test is designed to determine
or predict whether such individual is suitable or trainable with
respect to his employment in the particular business or enterprise
involved. . . ."
110 Cong.Rec. 13492. This language indicates that Senator
Tower's aim was simply to make certain that job-related tests would
be permitted. The opposition to the amendment was based on its
loose wording which the proponents of Title VII feared would be
susceptible of misinterpretation. The final amendment, which was
acceptable to all sides, could hardly have required less of a job
relation than the first.