Respondents, a certified class of present and former Negro
employees, brought this action against petitioners, their employer,
Albemarle Paper Co., and the employees' union, seeking injunctive
relief against "any policy, practice, custom or usage" at the plant
violative of Title VII of the Civil Rights Act of 1964, as amended
by the Equal Employment Opportunity Act of 1972, and, after several
years of discovery, moved to add a class backpay demand. At the
trial, the major issues were the plant's seniority system, its
program of employment testing, and backpay. The District Court
found that, following a reorganization under a new collective
bargaining agreement, the Negro employees had been "
locked' in
the lower paying job classifications," and ordered petitioners to
implement a system of plantwide seniority. The court refused,
however, to order backpay for losses sustained by the plaintiff
class under the discriminatory system, on the grounds that (1)
Albemarle's breach of Title VII was found not to have been in "bad
faith," and (2) respondents, who had initially disclaimed interest
in backpay, had delayed making their backpay claim until five years
after the complaint was filed, thereby prejudicing petitioners. The
court also refused to enjoin or limit Albemarle's testing program,
which respondents had contended had a disproportionate adverse
impact on blacks and was not shown to be related to job
performance, the court concluding that "personnel tests
administered at the plant have undergone validation studies and
have been proven to be job-related." Respondents appealed on the
backpay and pre-employment tests issues. The Court of Appeals
reversed the District Court's judgment.
Held:
1. Given a finding of unlawful discrimination, backpay should be
denied only for reasons that, if applied generally, would not
frustrate the central statutory purposes manifested by Congress in
enacting Title VII of eradicating discrimination throughout the
Page 422 U. S. 406
economy and making persons whole for injuries suffered through
past discrimination. Pp.
422 U. S.
413-422.
2. The absence of bad faith is not a sufficient reason for
denying backpay, Title VII not being concerned with the employer's
"good intent or absence of discriminatory intent," for "Congress
directed the thrust of the Act to the consequences of employment
practices, not simply the motivation,"
Griggs v. Duke Power
Co., 401 U. S. 424,
401 U. S. 432.
Pp.
422 U. S.
422-423.
3. Whether respondents' tardiness and inconsistency in making
their backpay demand were excusable and whether they actually
prejudiced petitioners are matters that will be open to review by
the Court of Appeals if the District Court, on remand, decides
again to decline a backpay award. Pp.
422 U. S.
423-425.
4. As is clear from
Griggs, supra, and the Equal
Employment Opportunity Commission's Guidelines for employers
seeking to determine through professional validation studies
whether employment tests are job-related, such tests are
impermissible unless shown, by professionally acceptable methods,
to be
"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."
Measured against that standard, Albemarle's validation study is
materially defective in that (1) it would not, because of the odd
patchwork of results from its application, have "validated" the two
general ability tests used by Albemarle for all the skilled lines
of progression for which the two tests are, apparently, now
required; (2) it compared test scores with subjective supervisorial
rankings, affording no means of knowing what job performance
criteria the supervisors were considering; (3) it focused mostly on
job groups near the top of various lines of progression, but the
fact that the best of those employees working near the top of a
line of progression score well on a test does not necessarily mean
that the test permissibly measures the qualifications of new
workers entering lower level jobs; and (4) it dealt only with
job-experienced, white workers, but the tests themselves are given
to new job applicants, who are younger, largely inexperienced, and
in many instances nonwhite. Pp.
422 U. S.
425-435.
5. In view of the facts that, during the appellate stages of
this litigation, Albemarle has apparently been amending its
departmental organization and the use made of its tests; that
issues of standards of proof for job-relatedness and of evidentiary
procedures involving validation tests have not until now, been
clarified;
Page 422 U. S. 407
and that provisional use of tests pending new validation effort
may be authorized, the District Court, on remand, should initially
fashion the necessary relief. P.
422 U. S.
436.
474 F.2d 134, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, WHITE, MARSHALL, and REHNQUIST, JJ., joined.
MARSHALL, J.,
post, p.
422 U. S. 440,
and REHNQUIST, J.,
post, p.
422 U. S. 441,
filed concurring opinions. BLACKMUN, J., filed an opinion
concurring in the judgment,
post, p.
422 U. S. 447.
BURGER, C.J., filed an opinion concurring in part and dissenting in
part,
post, p.
422 U. S. 449.
POWELL, J., took no part in the consideration or decision of the
cases.
Page 422 U. S. 408
MR JUSTICE STEWART delivered the opinion of the Court.
These consolidated cases raise two important questions under
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended
by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42
U.S.C. § 2000e
et seq. (1970 ed. and Supp. III): First:
when employees or applicants for employment have lost the
opportunity to earn wages because an employer has engaged in an
unlawful discriminatory employment practice, what standards should
a federal district court follow in deciding whether to award or
deny backpay? Second: what must an employer show to establish that
pre-employment tests racially discriminatory in effect, though not
in intent, are sufficiently "job-related" to survive challenge
under Title VII?
I
The respondents -- plaintiffs in the District Court -- are a
certified class of present and former Negro employees at a paper
mill in Roanoke Rapids, N.C.; the petitioners -- defendants in the
District Court -- are the plant's owner, the Albemarle Paper Co.,
and the plant employees' labor union, Halifax Local No. 425.
[
Footnote 1] In August, 1966,
after filing a complaint with the Equal Employment Opportunity
Commission (EEOC), and receiving notice of their right to sue,
[
Footnote 2] the
Page 422 U. S. 409
respondents brought a class action in the United States District
Court for the Eastern District of North Carolina, asking permanent
injunctive relief against "any policy, practice, custom or usage"
at the plant that violated Title VII. The respondents assured the
court that the suit involved no claim for any monetary awards on a
class basis, but, in June, 1970, after several years of discovery,
the respondents moved to add a class demand for backpay. The court
ruled that this issue would be considered at trial.
At the trial, in July and August, 1971, the major issues were
the plant's seniority system, its program of employment testing,
and the question of backpay. In its opinion of November 9, 1971,
the court found that the petitioners had "strictly segregated" the
plant's departmental "lines of progression" prior to January 1,
1964, reserving the higher paying and more skilled lines for
whites. The "racial identifiability" of whole lines of progression
persisted until 1968, when the lines were reorganized under a new
collective bargaining agreement. The court found, however, that
this reorganization left Negro employees "
locked' in the lower
paying job classifications." The formerly "Negro" lines of
progression had been merely tacked on to the bottom of the formerly
"white" lines, and promotions, demotions, and layoffs continued to
be governed -- where skills were "relatively equal" -- by a system
of "job seniority." Because of the plant's previous history of
overt segregation, only whites had seniority in the higher job
categories. Accordingly, the court ordered the petitioners to
implement a system of "plantwide" seniority.
Page 422 U. S.
410
The court refused, however, to award backpay to the plaintiff
class for losses suffered under the "job seniority" program.
[
Footnote 3] The court
explained:
"In the instant case, there was no evidence of bad faith
noncompliance with the Act. It appears that the company, as early
as 1964, began active recruitment of blacks for its Maintenance
Apprentice Program. Certain lines of progression were merged on its
own initiative, and as judicial decisions expanded the then
existing interpretations of the Act, the defendants took steps to
correct the abuses without delay. . . ."
"In addition, an award of back pay is an equitable remedy. . . .
The plaintiffs' claim for back pay was filed nearly five years
after the institution of this action. It was not prayed for in the
pleadings. Although neither party can be charged with deliberate
dilatory tactics in bringing this cause to trial, it is apparent
that the defendants would be substantially prejudiced by the
granting of such affirmative relief. The defendants might have
chosen to exercise unusual zeal in having this court determine
their rights at an earlier date had they known that back pay would
be at issue."
The court also refused to enjoin or limit Albemarle's testing
program. Albemarle had required applicants for employment in the
skilled lines of progression to have a high school diploma and to
pass two tests, the Revised Beta Examination, allegedly a measure
of nonverbal intelligence,
Page 422 U. S. 411
and the Wonderlic Personnel Test (available in alternative Forms
A and B), allegedly a measure of verbal facility. After this
Court's decision in
Griggs v. Duke Power Co., 401 U.
S. 424 (1971), and on the eve of trial, Albemarle
engaged an industrial psychologist to study the "job-relatedness"
of its testing program. His study compared the test scores of
current employees with supervisorial judgments of their competence
in ten job groupings selected from the middle or top of the plant's
skilled lines of progression. The study showed a statistically
significant correlation with supervisorial ratings in three job
groupings for the Beta Test, in seven job groupings for either Form
A or Form B of the Wonderlic Test, and in two job groupings for the
required battery of both the Beta and the Wonderlic Tests.
[
Footnote 4] The respondents'
experts challenged the reliability of these studies, but the court
concluded:
"The personnel tests administered at the plant have undergone
validation studies and have been proven to be job-related. The
defendants have carried the burden of proof in proving that these
tests are 'necessary for the safe and efficient operation of the
business,' and are, therefore, permitted by the Act. However, the
high school education requirement used in conjunction with the
testing requirements is unlawful in that the personnel tests alone
are adequate to measure the mental ability and reading skills
required for the job classifications."
The petitioners did not seek review of the court's judgment, but
the respondents appealed the denial of a backpay award and the
refusal to enjoin or limit Albemarle's use of pre-employment tests.
A divided Court of Appeals for the Fourth Circuit reversed the
judgment of
Page 422 U. S. 412
the District Court, ruling that backpay should have been awarded
and that use of the tests should have been enjoined, 474 F.2d 134
(1973). As for backpay, the Court of Appeals held that an award
could properly be requested after the complaint was filed, and that
an award could not be denied merely because the employer had not
acted in "bad faith,"
id. at 142:
"Because of the compensatory nature of a back pay award and the
strong congressional policy embodied in Title VII, a district court
must exercise its discretion as to back pay in the same manner it
must exercise discretion as to attorney fees under Title II of the
Civil Rights Act. . . . Thus, a plaintiff or a complaining class
who is successful in obtaining an injunction under Title VII of the
Act should ordinarily be awarded back pay unless special
circumstances would render such an award unjust.
Newman v.
Piggie Park Enterprises, 390 U. S. 400 . . . (1968)."
(Footnote omitted.) As for the pre-employment tests, the Court
of Appeals held,
id. at 138, that it was error
"to approve a validation study done without job analysis, to
allow Albemarle to require tests for 6 lines of progression where
there has been no validation study at all, and to allow Albemarle
to require a person to pass two tests for entrance into 7 lines of
progression when only one of those tests was validated for that
line of progression."
In so holding, the Court of Appeals "gave great deference" to
the "Guidelines on Employee Selection Procedures," 29 CFR pt. 1607,
which the EEOC has issued
"as a workable set of standards for employers, unions and
employment agencies in determining whether their selection
Page 422 U. S. 413
procedures conform with the obligations contained in title VII.
. . ."
29 CFR § 1607.1(c).
We granted certiorari [
Footnote
5] because of an evident Circuit conflict as to the standards
governing awards of backpay [
Footnote 6] and as to the showing required to establish
the "job-relatedness" of pre-employment tests. [
Footnote 7]
II
Whether a particular member of the plaintiff class should have
been awarded any backpay and, if so, how much, are questions not
involved in this review. The equities of individual cases were
never reached. Though at least some of the members of the plaintiff
class obviously suffered a loss of wage opportunities on account of
Albemarle's unlawfully discriminatory system of job seniority, the
District Court decided that no backpay should be awarded to anyone
in the class. The court declined to make such an award on two
stated grounds: the lack of "evidence of bad faith noncompliance
with the Act," and the fact that "the defendants would be
substantially prejudiced" by an award of backpay that was demanded
contrary to an earlier representation and late in the progress of
the litigation. Relying directly
Page 422 U. S. 414
on
Newman v. Pigge Park Enterprises, 390 U.
S. 400 (1968), the Court of Appeals reversed, holding
that backpay could be denied only in "special circumstances." The
petitioners argue that the Court of Appeals was in error -- that a
district court has virtually unfettered discretion to award or deny
backpay, and that there was no abuse of that discretion here.
[
Footnote 8]
Page 422 U. S. 415
Piggie Park Enterprises, supra, is not directly in
point. The Court held there that attorneys' fees should
"ordinarily" be awarded --
i.e., in all but "special
circumstances" -- to plaintiffs successful in obtaining injunctions
against discrimination in public accommodations, under Title II of
the Civil Rights Act of 1964. While the Act appears to leave Title
II fee awards to the district court's discretion, 42 U.S.C. §
2000a-3(b), the court determined that the great public interest in
having injunctive actions brought could be vindicated only if
successful plaintiffs, acting as "private attorneys general," were
awarded attorneys' fees in all but very unusual circumstances.
There is, of course, an equally strong public interest in having
injunctive actions brought under Title VII, to eradicate
discriminatory employment practices. But this interest can be
vindicated by applying the
Piggie Park standard to the
attorneys' fees provision of Title VII, 42 U.S.C. § 2000e 5(k),
see Northcross v. Memphis Board of Education, 412 U.
S. 427,
412 U. S. 428
(1973). For guidance as to the granting and denial of backpay, one
must, therefore, look elsewhere.
The petitioners contend that the statutory scheme provides no
guidance, beyond indicating that backpay awards are within the
District Court's discretion. We disagree. It is true that backpay
is not an automatic or mandatory remedy; like all other remedies
under the Act, it is one which the courts "may" invoke. [
Footnote 9] The
Page 422 U. S. 416
scheme implicitly recognizes that there may be cases calling for
one remedy but not another, and -- owing to the structure of the
federal judiciary -- these choices are, of course, left in the
first instance to the district courts. However, such discretionary
choices are not left to a court's "inclination, but to its
judgment, and its judgment is to be guided by sound legal
principles."
United States v. Burr, 25 F. Cas. 30, 35 (No.
14,692d) (CC Va. 1807) (Marshall, C.J.). The power to award backpay
was bestowed by Congress, as part of a complex legislative design
directed at a historic evil of national proportions. A court must
exercise this power "in light of the large objectives of the Act,"
Hecht Co. v. Bowles, 321 U. S. 321,
321 U. S. 331
(1944). That the court's discretion is equitable in nature,
see
Curtis v. Loether, 415 U. S. 189,
415 U. S. 197
(1974), hardly means that it is unfettered by meaningful standards
or shielded from thorough appellate review. In
Mitchell v.
DeMario Jewelry, 361 U. S. 288,
361 U. S. 292
(1960), this Court held, in the face of a silent statute, that
district courts enjoyed the "historic power of equity" to award
lost wages to workmen unlawfully discriminated
Page 422 U. S. 417
against under § 17 of the Fair Labor Standards Act of 1938, 52
Stat. 1069, as amended, 29 U.S.C. § 217 (1958 ed.). The Court
simultaneously noted that "the statutory purposes [leave] little
room for the exercise of discretion not to order reimbursement."
361 U.S. at
361 U. S.
296.
It is true that "[e]quity eschews mechanical rules . . . [and]
depends on flexibility."
Holmberg v. Armbrecht,
327 U. S. 392,
327 U. S. 396
(1946). But when Congress invokes the Chancellor's conscience to
further transcendent legislative purposes, what is required is the
principled application of standards consistent with those purposes
and not "equity [which] varies like the Chancellor's foot."
[
Footnote 10] Important
national goals would be frustrated by a regime of discretion that
"produce[d] different results for breaches of duty in situations
that cannot be differentiated in policy."
Moragne v. States
Marine Lines, 398 U. S. 375,
398 U. S. 405
(1970).
The District Court's decision must therefore be measured against
the purposes which inform Title VII. As the Court observed in
Griggs v. Duke Power Co., 401 U.S. at
401 U. S.
429-430, the primary objective was a prophylactic
one:
"It was 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."
Backpay has an obvious connection with this purpose. If
employers faced only the prospect of an injunctive order, they
would have little incentive to shun practices of dubious legality.
It is the reasonably certain prospect of a backpay award that
"provide[s] the spur or catalyst
Page 422 U. S. 418
which causes employers and unions to self-examine and to
self-evaluate their employment practices and to endeavor to
eliminate, so far as possible, the last vestiges of an unfortunate
and ignominious page in this country's history."
United States v. N. L. Industries, Inc., 479 F.2d 354,
379 (CA8 1973).
It is also the purpose of Title VII to make persons whole for
injuries suffered on account of unlawful employment discrimination.
This is shown by the very fact that Congress took care to arm the
courts with full equitable powers. For it is the historic purpose
of equity to "secur[e] complete justice,"
Brown v.
Swann, 10 Pet. 497,
35 U. S. 503
(1836);
see also Porter v. Warner Holding Co.,
328 U. S. 395,
328 U. S.
397-398 (1946).
"[W]here federally protected rights have been invaded, it has
been the rule from the beginning that courts will be alert to
adjust their remedies so as to grant the necessary relief."
Bell v. Hood, 327 U. S. 678,
327 U. S. 684
(1946). Title VII deals with legal injuries of an economic
character occasioned by racial or other anti-minority
discrimination. The terms "complete justice" and "necessary relief"
have acquired a clear meaning in such circumstances. Where racial
discrimination is concerned,
"the [district] court has not merely the power but the duty to
render a decree which will, so far as possible, eliminate the
discriminatory effects of the past as well as bar like
discrimination in the future."
Louisiana v. United States, 380 U.
S. 145,
380 U. S. 154
(1965). And where a legal injury is of an economic character,
"[t]he general rule is that, when a wrong has been done and the
law gives a remedy, the compensation shall be equal to the injury.
The latter is the standard by which the former is to be measured.
The injured party is to be placed, as near as may be, in
Page 422 U. S. 419
the situation he would have occupied if the wrong had not been
committed."
Wicker v.
Hoppock, 6 Wall. 94,
73 U. S. 99
(1867).
The "make whole" purpose of Title VII is made evident by the
legislative history. The backpay provision was expressly modeled on
the backpay provision of the National Labor Relations Act.
[
Footnote 11] Under that
Act,
"[m]aking the workers whole for loses suffered on account of an
unfair labor practice is part of the vindication of the public
policy which the Board enforces."
Phelps Dodge Corp. v. NLRB, 313 U.
S. 177,
313 U. S. 197
(1941).
See also Nathanson v. NLRB, 344 U. S.
25,
344 U. S. 27
(1952);
NLRB v. Rutter-Rex Mfg. Co., 396 U.
S. 258,
396 U. S. 263
(1969). We may assume that Congress was aware that the Board,
Page 422 U. S. 420
since its inception, has awarded backpay as a matter of course
-- not randomly or in the exercise of a standardless discretion,
and not merely where employer violations are peculiarly deliberate,
egregious, or inexcusable. [
Footnote 12] Furthermore, in passing the Equal Employment
Opportunity Act of 1972, Congress considered several bills to limit
the judicial power to award backpay. These limiting efforts were
rejected, and the backpay provision was reenacted substantially in
its original form. [
Footnote
13] A Section-by-Section Analysis introduced by Senator
Williams to accompany the Conference Committee Report on the 1972
Act
Page 422 U. S. 421
strongly reaffirmed the "make whole" purpose of Title VII:
"The provisions of this subsection are intended to give the
courts wide discretion exercising their equitable powers to fashion
the most complete relief possible. In dealing with the present
section 706(g), the courts have stressed that the scope of relief
under that section of the Act is intended to make the victims of
unlawful discrimination whole, and that the attainment of this
objective rests not only upon the elimination of the particular
unlawful employment practice complained of, but also requires that
persons aggrieved by the consequences and effects of the unlawful
employment practice be, so far as possible, restored to a position
where they would have been were it not for the unlawful
discrimination."
118 Cong.Rec. 7168 (1972). As this makes clear, Congress'
purpose in vesting a variety of "discretionary" powers in the
courts was not to limit appellate review of trial courts, or to
invite inconsistency and caprice, but rather to make possible the
"fashion[ing] [of] the most complete relief possible."
It follows that, given a finding of unlawful discrimination,
backpay should be denied only for reasons which, if applied
generally, would not frustrate the central statutory purposes of
eradicating discrimination throughout the economy and making
persons whole for injuries suffered through past discrimination.
[
Footnote 14] The courts of
appeals must maintain a consistent and principled application of
the backpay provision, consonant with the twin statutory
objectives, while at the same time recognizing that the trial court
will often have the keener appreciation
Page 422 U. S. 422
of those facts and circumstances peculiar to particular
cases.
The District Court's stated grounds for denying backpay in this
case must be tested against these standards. The first ground was
that Albemarle's breach of Title VII had not been in "bad faith."
[
Footnote 15] This is not a
sufficient reason for denying backpay. Where an employer has shown
bad faith -- by maintaining a practice which he knew to be illegal
or of highly questionable legality -- he can make no claims
whatsoever on the Chancellor's conscience. But, under Title VII,
the mere absence of bad faith simply opens the door to equity; it
does not depress the scales in the employer's favor. If backpay
were awardable only upon a showing of bad faith, the remedy would
become a punishment for moral turpitude, rather than a compensation
for workers' injuries. This would read the "make whole" purpose
right out of Title VII, for a worker's injury is no less real
simply because his employer did not inflict it in "bad faith."
[
Footnote 16] Title VII is
not concerned with the employer's "good intent or absence of
discriminatory intent," for "Congress directed the thrust of the
Act to the consequences of employment practices, not simply the
motivation."
Griggs v. Duke
Page 422 U. S. 423
Power Co., 401 U.S. at
401 U. S. 432.
See also Watson v. City of Memphis, 373 U.
S. 526,
373 U. S. 535
(1963);
Wright v. Council of City of Emporia, 407 U.
S. 451,
407 U. S.
461-462 (1972). [
Footnote 17] To condition the awarding of backpay on a
showing of "bad faith" would be to open an enormous chasm between
injunctive and backpay relief under Title VII. There is nothing on
the face of the statute or in its legislative history that
justifies the creation of drastic and categorical distinctions
between those two remedies. [
Footnote 18]
The District Court also grounded its denial of backpay on the
fact that the respondents initially disclaimed any interest in
backpay, first asserting their claim five years after the complaint
was filed. The court concluded that the petitioners had been
"prejudiced" by this conduct. The Court of Appeals reversed on the
ground
"that the broad aims of Title VII require that the issue of back
pay be fully developed and determined even though it was not raised
until the post-trial stage of litigation,"
474 F.2d at 141.
Page 422 U. S. 424
It is true that Title VII contains no legal bar to raising
backpay claims after the complaint for injunctive relief has been
filed, or indeed after a trial on that complaint has been had.
[
Footnote 19] Furthermore,
Fed.Rule Civ.Proc. 54(c) directs that
"every final judgment shall grant the relief to which the party
in whose favor it is rendered is entitled, even if the party has
not demanded such relief in his pleadings."
But a party may not be "entitled" to relief if its conduct of
the cause has improperly and substantially prejudiced the other
party. The respondents here were not merely tardy, but also
inconsistent, in demanding backpay. To deny backpay because a
particular cause has been prosecuted in an eccentric
fashion, prejudicial to the other party, does not offend the broad
purposes of Title VII. This is not to say, however, that the
District Court's ruling was necessarily correct. Whether the
petitioners were, in fact, prejudiced, and whether the respondents'
trial conduct was excusable, are questions that will be open to
review by the Court of Appeals if the District Court, on remand,
decides again to decline to make any award of backpay. [
Footnote 20] But the standard of
review will be the familiar one of whether the District Court was
"clearly erroneous" in its factual findings and whether it "abused"
its traditional discretion to locate "a just result" in light of
the circumstances peculiar to the case,
Page 422 U. S. 425
Langnes v. Green, 282 U. S. 531,
282 U. S. 541
(1931). On these issues of procedural regularity and prejudice, the
"broad aims of Title VII" provide no ready solution.
III
In
Griggs v. Duke Power Co., 401 U.
S. 424 (1971), this Court unanimously held that Title
VII forbids the use of employment tests that are discriminatory in
effect unless the employer meets "the burden of showing that any
given requirement [has] . . . a manifest relationship to the
employment in question."
Id. at
401 U. S. 432.
[
Footnote 21] This burden
arises, of course, only after the complaining party or class has
made out a
prima facie case of discrimination,
i.e., has shown that the tests in question select
applicants for hire or promotion in a racial pattern significantly
different from that of the pool of applicants.
See McDonnell
Douglas Corp. v. Green, 411 U. S. 792,
411 U. S. 802
(1973). If an employer does then meet the burden of proving that
its tests are "job-related," it remains open to the complaining
party to show that other tests or selection devices, without a
similarly undesirable racial effect, would also serve the
employer's legitimate interest in "efficient and trustworthy
workmanship."
Id. at
411 U. S. 801.
Such a showing would be evidence that the employer was using its
tests merely as a "pretext" for discrimination.
Id. at
411 U. S.
804-805. In the present case, however, we are concerned
only with the question whether Albemarle has shown its tests to be
job-related.
Page 422 U. S. 426
The concept of job-relatedness takes on meaning from the facts
of the
Griggs case. A power company in North Carolina had
reserved its skilled jobs for whites prior to 1965. Thereafter, the
company allowed Negro workers to transfer to skilled jobs, but all
transferees -- white and Negro -- were required to attain national
median scores on two tests:
"[T]he 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. . . ."
"
* * * *"
". . . 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."
401 U.S. at
401 U. S.
428-431. The Court took note of
"the inadequacy of broad and general testing devices as well as
the infirmity of using diplomas or degrees as fixed measures of
capability,"
id. at
401 U. S. 433,
and concluded:
"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. . .
. What Congress has commanded is that any tests used must measure
the person for the job and not the person in the abstract."
Id. at
401 U. S.
436.
Page 422 U. S. 427
Like the employer in
Griggs, Albemarle uses two general
ability tests, the Beta Examination, to test nonverbal
intelligence, and the Wonderlic Test (Forms A and B), the purported
measure of general verbal facility which was also involved in the
Griggs case. Applicants for hire into various skilled
lines of progression at the plant are required to score 100 on the
Beta Exam and 18 on one of the Wonderlic Test's two alternative
forms. [
Footnote 22]
The question of job-relatedness must be viewed in the context of
the plant's operation and the history of the testing program. The
plant, which now employs about 650 persons, converts raw wood into
paper products. It is organized into a number of functional
departments, each with one or more distinct lines of progression,
the theory being that workers can move up the line as they acquire
the necessary skills. The number and structure of the lines have
varied greatly over time. For many years, certain lines were
themselves more skilled and paid higher wages than others, and,
until 1964, these skilled lines were expressly reserved for white
workers. In 1968, many of the unskilled "Negro" lines were
"end-tailed" onto skilled "white" lines, but it apparently remains
true that at least the top jobs in certain lines require greater
skills than the top jobs in other lines. In this sense, at least,
it is still possible to speak of relatively skilled and relatively
unskilled lines.
In the 1950's, while the plant was being modernized with new and
more sophisticated equipment, the Company introduced a high school
diploma requirement for entry into the skilled lines. Though the
Company soon concluded that this requirement did not improve the
quality of the labor force, the requirement was continued
Page 422 U. S. 428
until the District Court enjoined its use. In the late 1950's,
the Company began using the Beta Examination and the Bennett
Mechanical Comprehension Test (also involved in the
Griggs
case) to screen applicants for entry into the skilled lines. The
Bennett Test was dropped several years later, but use of the Beta
Test continued. [
Footnote
23]
The Company added the Wonderlic Tests in 1963, for the skilled
lines, on the theory that a certain verbal intelligence was called
for by the increasing sophistication of the plant's operations. The
Company made no attempt to validate the test for job-relatedness,
[
Footnote 24] and simply
adopted the national "norm" score of 18 as a cut-off point for new
job applicants. After 1964, when it discontinued overt segregation
in the lines of progression,
Page 422 U. S. 429
the Company allowed Negro workers to transfer to the skilled
lines if they could pass the Beta and Wonderlic Tests, but few
succeeded in doing so. Incumbents in the skilled lines, some of
whom had been hired before adoption of the tests, were not required
to pass them to retain their jobs or their promotion rights. The
record shows that a number of white incumbents in high-ranking job
groups could not pass the tests. [
Footnote 25]
Because departmental reorganization continued up to the point of
trial, and has indeed continued since that point, the details of
the testing program are less than clear from the record. The
District Court found that, since 1963, the Beta and Wonderlic Tests
have been used in 13 lines of progression, within eight
departments. Albemarle contends that, at present, the tests are
used in only eight lines of progression, within four
departments.
Four months before this case went to trial, Albemarle engaged an
expert in industrial psychology to "validate" the job-relatedness
of its testing program. He spent a half day at the plant and
devised a "concurrent validation" study, which was conducted by
plant officials, without his supervision. The expert then subjected
the results to statistical analysis. The study dealt with 10 job
groupings, selected from near the top of nine of the
Page 422 U. S. 430
lines of progression. [
Footnote 26] Jobs were grouped together solely by their
proximity in the line of progression; no attempt was made to
analyze jobs in terms of the particular skills they might require.
All, or nearly all, employees in the selected groups participated
in the study -- 105 employees in all, but only four Negroes. Within
each job grouping, the study compared the test scores of each
employee with an independent "ranking" of the employee, relative to
each of his coworkers, made by two of the employee's supervisors.
The supervisors, who did not know the test scores, were asked
to
"determine which ones they felt irrespective of the job that
they were actually doing, but in their respective jobs, did a
better job than the person they were rating against. . . .
[
Footnote 27]"
For each job grouping, the expert computed the "Phi coefficient"
of statistical correlation between the test scores and an average
of the two supervisorial rankings. Consonant with professional
conventions, the expert regarded as "statistically significant" any
correlation that could have occurred by chance only five times, or
fewer, in 100 trials. [
Footnote
28] On the basis of these results, the District Court found
that "[t]he personnel tests administered at the plant have
undergone validation studies and have been proven to be
job-related." Like the Court of Appeals, we are constrained to
disagree.
The EEOC has issued "Guidelines" for employers seeking to
determine, through professional validation studies,
Page 422 U. S. 431
whether their employment tests are job-related. 29 CFR pt. 1607.
These Guidelines draw upon and make reference to professional
standards of test validation established by the American
Psychological Association. [
Footnote 29] The EEOC Guidelines are not administrative
"regulations" promulgated pursuant to formal procedures established
by the Congress. But, as this Court has heretofore noted, they do
constitute "[t]he administrative interpretation of the Act by the
enforcing agency," and consequently they are "entitled to great
deference."
Griggs v. Duke Power Co., 401 U.S. at
401 U. S.
433-434.
See also Espinoza v. Farah Mfg. Co.,
414 U. S. 86,
414 U. S. 94
(1973).
The message of these Guidelines is the same as that of the
Griggs case -- that discriminatory tests are impermissible
unless shown, by professionally acceptable methods, to be
"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."
29 CFR § 1607.4(c).
Measured against the Guidelines, Albemarle's validation study is
materially defective in several respects:
(1) Even if it had been otherwise adequate, the study would not
have "validated" the Beta and Wonderlic test battery for all of the
skilled lines of progression for which the two tests are,
apparently, now required. The study showed significant correlations
for the Beta Exam in only three of the eight lines. Though the
Wonderlic Test's Form A and Form B are in theory identical and
Page 422 U. S. 432
interchangeable measures of verbal facility, significant
correlations for one form but not for the other were obtained in
four job groupings. In two job groupings, neither form showed a
significant correlation. Within some of the lines of progression,
one form was found acceptable for some job groupings but not for
others. Even if the study were otherwise reliable, this odd
patchwork of results would not entitle Albemarle to impose its
testing program under the Guidelines. A test may be used in jobs
other than those for which it has been professionally validated
only if there are "no significant differences" between the studied
and unstudied jobs. 29 CFR § 1607.4(c)(2). The study in this case
involved no analysis of the attributes of, or the particular skills
needed in, the studied job groups. There is accordingly no basis
for concluding that "no significant differences" exist among the
lines of progression, or among distinct job groupings within the
studied lines of progression. Indeed, the study's checkered results
appear to compel the opposite conclusion.
(2) The study compared test scores with subjective supervisorial
rankings. While they allow the use of supervisorial rankings in
test validation, the Guidelines quite plainly contemplate that the
rankings will be elicited with far more care than was demonstrated
here. [
Footnote 30]
Page 422 U. S. 433
Albemarle's supervisors were asked to rank employees by a
"standard" that was extremely vague and fatally open to divergent
interpretations. As previously noted, each "job grouping" contained
a number of different jobs, and the supervisors were asked, in each
grouping, to
"determine which ones [employees] they felt, irrespective of the
job that they were actually doing, but in their respective jobs,
did a better job than the person they were rating against. . . .
[
Footnote 31]"
There is no way of knowing precisely what criteria of job
performance the supervisors were considering, whether each of the
supervisors was considering the same criteria or whether, indeed,
any of the supervisors actually applied a focused and stable body
of criteria of any kind. [
Footnote 32] There is, in short, simply no way to
determine whether the criteria actually considered were
sufficiently related to the Company's legitimate interest in
job-specific ability to justify a testing system with a racially
discriminatory impact.
(3) The Company's study focused, in most cases, on job groups
near the top of the various lines of progression. In
Griggs v.
Duke Power Co., supra, the Court
Page 422 U. S. 434
left open
"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."
401 U.S. at
401 U. S. 432.
The Guidelines take a sensible approach to this issue, and we now
endorse it:
"If job progression structures and seniority provisions are so
established that new employees will probably, within a reasonable
period of time and in a great majority of cases, progress to a
higher level, it may be considered that candidates are being
evaluated for jobs at that higher level. However, where job
progression is not so nearly automatic, or the time span is such
that higher level jobs or employees' potential may be expected to
change in significant ways, it shall be considered that candidates
are being evaluated for a job at or near the entry level."
29 CFR § 1607.4(c)(1). The fact that the best of those employees
working near the top of a line of progression score well on a test
does not necessarily mean that that test, or some particular cutoff
score on the test, is a permissible measure of the minimal
qualifications of new workers entering lower level jobs. In drawing
any such conclusion, detailed consideration must be given to the
normal speed of promotion, to the efficacy of on-the-job training
in the scheme of promotion, and to the possible use of testing as a
promotion device, rather than as a screen for entry into low-level
jobs. The District Court made no findings on these issues. The
issues take on special importance in a case, such as this one,
where incumbent employees are permitted to work at even high-level
jobs without passing the company's test battery.
See 29
CFR § 1607.11.
Page 422 U. S. 435
(4) Albemarle's validation study dealt only with
job-experienced, white workers; but the tests themselves are given
to new job applicants, who are younger, largely inexperienced, and
in many instances nonwhite. The APA Standards state that it is
"essential" that
"[t]he validity of a test should be determined on subjects who
are at the age or in the same educational or vocational situation
as the persons for whom the test is recommended in practice."
� C 5.4. The EEOC Guidelines likewise provide that "[d]ata must
be generated and results separately reported for minority and
nonminority groups wherever technically feasible." 29 CFR §
1607.5(b)(5). In the present case, such "differential validation"
as to racial groups was very likely not "feasible," because years
of discrimination at the plant have insured that nearly all of the
upper level employees are white. But there has been no clear
showing that differential validation was not feasible for lower
level jobs. More importantly, the Guidelines provide:
"If it is not technically feasible to include minority employees
in validation studies conducted on the present workforce, the
conduct of a validation study without minority candidates does not
relieve any person of his subsequent obligation for validation when
inclusion of minority candidates becomes technically feasible."
29 CFR § 1607.5(b)(1).
". . . [E]vidence of satisfactory validity based on other groups
will be regarded as only provisional compliance with these
guidelines pending separate validation of the test for the minority
group in question."
29 CFR § 1607.5(b)(5).
For all these reasons, we agree with the Court of Appeals that
the District Court erred in concluding that
Page 422 U. S. 436
Albemarle had proved the job-relatedness of its testing program
and that the respondents were consequently not entitled to
equitable relief. The outright reversal by the Court of Appeals
implied that an injunction should immediately issue against all use
of testing at the plant. Because of the particular circumstances
here, however, it appears that the more prudent course is to leave
to the District Court the precise fashioning of the necessary
relief in the first instance. During the appellate stages of this
litigation, the plant has apparently been amending its departmental
organization and the use made of its tests. The appropriate
standard of proof for job-relatedness has not been clarified until
today. Similarly, the respondents have not until today been
specifically apprised of their opportunity to present evidence that
even validated tests might be a "pretext" for discrimination in
light of alternative selection procedures available to the Company.
We also note that the Guidelines authorize provisional use of
tests, pending new validation efforts, in certain very limited
circumstances. 29 CFR § 1607.9. Whether such circumstances now
obtain is a matter best decided, in the first instance, by the
District Court. That court will be free to take such new evidence,
and to exercise such control of the Company's use and validation of
employee selection procedures, as are warranted by the
circumstances and by the controlling law.
Accordingly, the judgment is vacated, and these cases are
remanded to the District Court for proceedings consistent with this
opinion.
It is so ordered.
MR. JUSTICE POWELL took no part in the consideration or decision
of these cases.
Page 422 U. S. 437
|
422
U.S. 405charta|
APPENDIX TO OPINION OF THE COURT
CHART A
Results of Validation Study
bwm:
Test
Job Group N Beta W-A W-B
1. Caustic Operator, Lime Kiln
Operator. . . . . . . . . . . . 8 .25 1.00** .47
2. C. E. Recovery Operator,
C. E. Recovery 1st Helpers
& Evaporator Operators. . . . . .12 .64** .32 .17
3. Wood Yard: Long Log Op-
erators, Log Stackers, Small
Equipment Operators & Oilers. . .14 .00 1.00** .72*
4. Technical Services: B Mill
Shift Testmen, Additive
men, General Lab. Test-
men, General Lab. asst., A
Mill Testmen, Samplemen. .50* .75** .64*
5. B Paper Mill: Machine Tend-
ers and Back Tenders. . . . . . .16 .00 .50** .34
6. B Paper Mill: Stock Room
Operator, Stock Room 1st
Helper. . . . . . . . . . . . . 8 -.50 .00 .00
7. B Paper Mill: 3rd Hands,
4th Hands & 5th Hands . . . . . 21 .43 .81** .60**
8. Wood Yard: Chipper Un-
loader, Chipper Operator,
No. 2 Chain Operator. . . . . . 6 .76* -.25 1.00**
9. Pulp Mill: Stock Room Op-
erator, Stock Room 1st
Helpers . . . . . . . . . . . . 8 .50 .80* .76*
10. Power Plant: Power Plant
Operator, Power Plant 1st
Helper, Power Plant 2nd
Helper. . . . . . . . . . . . . 12 .34 .75** .66*
ewm:
NOTE
The job groups are identified in
422
U.S. 405chartb|>Chart B. N indicates the number of employees
tested. A single (double) asterisk indicates the "Phi" coefficient
of correlation, shown on the chart, is statistically significant at
a 95% (99%) level of confidence. The other coefficients are not
statistically significant.
Page 422 U. S. 438
|
422
U.S. 405chartb|
CHART B
Albemarle's Skilled Lines of Progression
NOTE: The numbered job groups are those examined in the
validation study summarized in
422
U.S. 405charta|>Chart A. Testing is no longer required for
entry into the Woodyard Department.
image:a
Page 422 U. S. 439
image:b
Page 422 U. S. 440
* Together with No. 74-428,
Halifax Local No. 5, United
Papermakers & Paperworkers, AFL-CIO v. Moody et al., also
on certiorari to the same court.
[
Footnote 1]
The paper mill has changed hands during this litigation, but
these changes are irrelevant to the issues considered in this
opinion, and the employer interest will be referred to throughout
as Albemarle or the Company. The labor union is involved in only
the backpay aspect of this litigation.
[
Footnote 2]
The relevant procedures may be found at 42 U.S.C. §
2000e-5(f)(1) (1970 ed., Supp. III).
See McDonnell Douglas
Corp. v. Green, 411 U. S. 792,
411 U. S. 798
(1973);
Alexander v. Gardner-Denver Co., 415 U. S.
36,
415 U. S. 445
(1974).
See also n 8,
infra.
[
Footnote 3]
Under Title VII, backpay liability exists only for practices
occurring after the effective date of the Act, July 2, 1965, and
accrues only from a date two years prior to the filing of a charge
with the EEOC.
See 42 U.S.C. § 2000e 5(g) (1970 ed., Supp.
III). Thus, no award was possible with regard to the plant's
pre-1964 policy of "strict segregation."
[
Footnote 4]
See infra at
422 U. S.
429-430.
[
Footnote 5]
419 U.S. 1068 (1974). The Fourth Circuit initially granted a
petition to rehear this case en banc. But that petition was
ultimately denied after this Court ruled, on a certified question,
that
"senior circuit judges who are members of the originally
assigned division hearing a case are not authorized by Congress to
participate in the determination whether to rehear that case in
banc."
417 U.S.
622,
417 U. S. 624
(1974).
[
Footnote 6]
For example,
compare Kober v. Westinghouse Electric
Corp., 480 F.2d 240 (CA3 1973),
with Pettway v. American
Cast Iron Pipe Co., 494 F.2d 211 (CA5 1974), and
Head v.
Timken Roller Bearing Co., 486 F.2d 870 (CA6 1973).
[
Footnote 7]
For example,
compare Pettway v. American Cast Iron Pipe Co.,
supra, with Castro v. Beecher, 459 F.2d 725 (CA1 1972).
[
Footnote 8]
The petitioners also contend that no backpay can be awarded to
those unnamed parties in the plaintiff class who have not
themselves filed charges with the EEOC. We reject this contention.
The Courts of Appeals that have confronted the issue are unanimous
in recognizing that backpay may be awarded on a class basis under
Title VII without exhaustion of administrative procedures by the
unnamed class members.
See, e.g., Rosen v. Public Service
Electric & Gas Co., 409 F.2d 775, 780 (CA3 1969), and 477
F.2d 90, 95-96 (CA3 1973);
Robinson v. Lorillard Corp.,
444 F.2d 791, 802 (CA4 1971);
United States v. Georgia Power
Co., 474 F.2d 906, 919-921 (CA5 1973);
Head v. Timken
Roller Bearing Co., supra at 876;
Bowe v.
Colgate-Palmolive Co., 416 F.2d 711, 719-721 (CA7 1969);
United States v. N. L. Industries, Inc., 479 F.2d 354,
378-379 (CA8 1973). The Congress plainly ratified this construction
of the Act in the course of enacting the Equal Employment
Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103. The House of
Representatives passed a bill, H.R. 1746, 92d Cong., 1st Sess.,
that would have barred, in § 3(e), an award of backpay to any
individual who "neither filed a charge [with the EEOC] nor was
named in a charge or amendment thereto." But the Senate Committee
on Labor and Public Welfare recommended, instead, the reenactment
of the backpay provision without such a limitation, and cited with
approval several cases holding that backpay was awardable to class
members who had not personally filed, nor been named in, charges to
the EEOC. S.Rep. No. 92-415, p. 27 (1971).
See also 118
Cong.Rec. 4942 (1972). The Senate passed a bill without the House's
limitation,
id. at 4944, and the Conference Committee
adopted the Senate position. A Section-by-Section Analysis of the
Conference Committee's resolution notes that " [a] provision
limiting class actions was contained in the House bill and
specifically rejected by the Conference Committee,"
id. at
7168, 7565. The Conference Committee bill was accepted by both
Chambers.
Id. at 7170, 7573.
[
Footnote 9]
Title 42 U.S.C. § 2000e-5(g) (1970 ed., Supp. III) provides:
"If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the
respondent from engaging in such unlawful employment practice, and
order such affirmative action as may be appropriate, which may
include, but is not limited to, reinstatement or hiring of
employees, with or without back pay (payable by the employer,
employment agency, or labor organization, as the case may be,
responsible for the unlawful employment practice), or any other
equitable relief as the court deems appropriate. Back pay liability
shall not accrue from a date more than two years prior to the
filing of a charge with the Commission. Interim earnings or amounts
earnable with reasonable diligence by the person or persons
discriminated against shall operate to reduce the back pay
otherwise allowable. No order of the court shall require the
admission or reinstatement of an individual as a member of a union,
or the hiring, reinstatement, or promotion of an individual as an
employee, or the payment to him of any back pay, if such individual
was refused admission, suspended, or expelled, or was refused
employment or advancement or was suspended or discharged for any
reason other than discrimination on account of race, color,
religion, sex, or national origin or in violation of section
2000e-3(a) of this title."
[
Footnote 10]
Eldon, L.C., in
Gee v. Pritchard, 2 Swans. *403, *414,
36 Eng.Rep. 670, 674 (1818).
[
Footnote 11]
Section 10(c) of the NLRA, 49 Stat. 454, as amended, 29 U.S.C. §
160(c), provides that, when the Labor Board has found that a person
has committed an "unfair labor practice," the Board "shall issue"
an order
"requiring such person to cease and desist from such unfair
labor practice, and to take such affirmative action including
reinstatement of employees with or without back pay, as will
effectuate the policies of this subchapter."
The backpay provision of Title VII provides that, when the court
has found "an unlawful employment practice," it "may enjoin" the
practice
"and order such affirmative action as may be appropriate, which
may include, but is not limited to, reinstatement or hiring of
employees, with or without back pay. . . ."
42 U.S.C. § 2000e-5(g) (1970 ed., Supp. III). The framers of
Title VII stated that they were using the NLRA provision as a
model. 110 Cong.Rec. 6549 (1964) (remarks of Sen. Humphrey);
id. at 7214 (interpretative memorandum by Sens. Clark and
Case). In early versions of the Title VII provision on remedies, it
was stated that a court "may" issue injunctions, but "shall" order
appropriate affirmative action. This anomaly was removed by
Substitute Amendment No. 656, 110 Cong.Rec. 12814, 12819 (1964).
The framers regarded this as merely a "minor language change,"
id. at 12723-12724 (remarks of Sen. Humphrey). We can find
here no intent to back away from the NLRA model or to denigrate in
any way the status of backpay relief.
[
Footnote 12]
"The finding of an unfair labor practice and discriminatory
discharge is presumptive proof that some back pay is owed by the
employer,"
NLRB v. Mastro Plastics Corp., 354 F.2d 170,
178 (CA2 1965). While the backpay decision rests in the NLRB's
discretion, and not with the courts,
NLRB v. Rutter-Rex Mfg.
Co., 396 U. S. 258,
396 U. S. 263
(1969), the Board has, from its inception, pursued "a practically
uniform policy with respect to these orders requiring affirmative
action." NLRB, First Annual Report 124 (1936).
"[I]n all but a few cases involving discriminatory discharges,
discriminatory refusals to employ or reinstate, or discriminatory
demotions in violation of section 8(3), the Board has ordered the
employer to offer reinstatement to the employee discriminated
against and to make whole such employee for any loss of pay that he
has suffered by reason of the discrimination."
NLRB, Second Annual Report 148 (1937).
[
Footnote 13]
As to the unsuccessful effort to restrict class actions for
backpay,
see n 8,
supra. In addition, the Senate rejected an amendment which
would have required a jury trial in Title VII cases involving
backpay, 118 Cong.Rec. 4917, 4919-4920 (1972) (remarks of Sens.
Erving and Javits), and rejected a provision that would have
limited backpay liability to a date two years prior to filing a
complaint in court.
Compare H.R. 1746, which passed the
House,
with the successful Conference Committee bill,
analyzed at 118 Cong.Rec. 7168 (1972), which adopted a
substantially more liberal limitation,
i.e., a date two
years prior to filing a charge with the EEOC.
See 42
U.S.C. § 2000e-5(g) (1970 ed., Supp. III).
[
Footnote 14]
It is necessary, therefore, that, if a district court does
decline to award backpay, it carefully articulate its reasons.
[
Footnote 15]
The District Court thought that the breach of Title VII had not
been in "bad faith" because judicial decisions had only recently
focused directly on the discriminatory impact of seniority systems.
The court also noted that Albemarle had taken some steps to recruit
black workers into one of its departments and to eliminate strict
segregation through the 1968 departmental merger.
[
Footnote 16]
The backpay remedy of the NLRA on which the Title VII remedy was
modeled,
see n 11,
supra, is fully available even where the "unfair labor
practice" was committed in good faith.
See, e.g., NLRB v.
Rutter-Rex Mfg. Co., 396 U.S. at
396 U. S. 265;
American Machinery Corp. v. NLRB, 424 F.2d 1321, 1328-1330
(CA5 1970);
Laidlaw Corp. v. NLRB, 414 F.2d 99, 107 (CA7
1969).
[
Footnote 17]
Title VII itself recognizes a complete, but very narrow,
immunity for employer conduct shown to have been undertaken
"in good faith, in conformity with, and in reliance on any
written interpretation or opinion of the [Equal Employment
Opportunity] Commission."
42 U.S.C. § 2000e-12(b). It is not for the courts to upset this
legislative choice to recognize only a narrowly defined "good
faith" defense.
[
Footnote 18]
We note that some courts have denied backpay, and limited their
judgments to declaratory relief, in cases where the employer
discriminated on sexual grounds in reliance on state "female
protective" statutes that were inconsistent with Title VII.
See, e.g., Kober v. Westinghouse Electric Corp., 480 F.2d
240 (CA3 1973);
LeBlanc v. Southern Bell Telephone Telegraph
Co., 460 F.2d 1228 (CA5 1972);
Manning v. General Motors
Corp., 466 F.2d 812 (CA6 1972);
Rosenfeld v. Southern
Pacific Co., 444 F.2d 1219 (CA9 1971). There is no occasion in
this case to decide whether these decisions were correct. As to the
effect of Title VII on state statutes inconsistent with it,
see 42 U.S.C. § 2000e-7.
[
Footnote 19]
See Rosen v. Public Service Electric & Gas Co., 409
F.2d at 780 n. 20;
Robinson v. Lorillard Corp., 444 F.2d
at 802-803;
United States v. Hayes International Corp.,
456 F.2d 112, 116, 121 (CA5 1972).
[
Footnote 20]
The District Court's stated grounds for denying backpay were,
apparently, cumulative, rather than independent. The District Court
may, of course, reconsider its backpay determination in light of
our ruling on the "good faith" question.
[
Footnote 21]
In
Griggs, the Court was construing 42 U.S.C. §
2000e-2(h), which provides in pertinent part that 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."
[
Footnote 22]
Albemarle has informed us that it has now reduced the cut-off
score to 17 on the Wonderlic Test.
[
Footnote 23]
While the Company contends that the Bennett and Beta Tests were
"locally validated" when they were introduced, no record of this
validation was made. Plant officials could recall only the barest
outlines of the alleged validation. Job relatedness cannot be
proved through vague and unsubstantiated hearsay.
[
Footnote 24]
As explained by the responsible plant official, the Wonderlic
Test was chosen in rather casual fashion:
"I had had experience with using the Wonderlic before, which is
a short form Verbal Intelligence Test, and knew that it had, uh,
probably more validation studies behind it than any other short
form Verbal Intelligence Test. So, after consultation, we decided
to institute the Wonderlic, in addition to the Beta, in view of the
fact that the mill had changed quite a bit and it had become
exceedingly more complex in operation. . . . [W]e did not, uh,
validate it, uh, locally, primarily, because of the, the expense of
conducting such a validation, and there were some other
considerations, such as, uh, we didn't know whether we would get
the cooperation of the employees that we'd need to validate it
against in taking the test, and we certainly have to have that, so
we used National Norms and, on my suggestion, after study of the
Wonderlic and Norms had been established nationally for skilled
jobs, we developed a, uh, cut-off score of eighteen (18)."
[
Footnote 25]
In the course of a 1971 validation effort,
see supra at
422 U. S. 411
and
infra this page and
422 U. S. 430,
test scores were accumulated for 105 incumbent employees (101 of
whom were white) working in relatively high-ranking jobs. Some of
these employees apparently took the tests for the first time as
part of this study. The Company's expert testified that the test
cutoff scores originally used to screen these incumbents for
employment or promotion
"couldn't have been . . . very high scores because some of these
guys tested very low, as low as 8 in the Wonderlic test, and as low
as 95 in the Beta. They couldn't have been using very high cut-off
scores or they wouldn't have these low-testing employees."
[
Footnote 26]
See the
422
U.S. 405charta|>charts appended to this opinion. It should
be noted that testing is no longer required for some of the job
groups listed.
[
Footnote 27]
This "standard" for the ranking was described by the plant
official who oversaw the conduct of the study.
[
Footnote 28]
The results of the study are displayed on
422
U.S. 405charta|>Chart A in the Appendix to this opinion.
[
Footnote 29]
American Psychological Association, Standards for Educational
and Psychological Tests and Manuals (1966) (hereafter APA
Standards). A volume of the same title, containing modifications,
was issued in 1974. The EEOC Guidelines refer to the APA Standards
at 29 CFR § 1607.5(a). Very similar guidelines have been issued by
the Secretary of Labor for the use of federal contractors. 41 CFR §
60-3.1
et seq.
[
Footnote 30]
The Guidelines provide, at 29 CFR §§ 1607.5(b)(3) and (4):
"(3) The work behaviors or other criteria of employee adequacy
which the test is intended to predict or identify must be fully
described; and, additionally, in the case of rating techniques, the
appraisal form(s) and instructions to the rater(s) must be included
as a part of the validation evidence. Such criteria may include
measures other than actual work proficiency, such as training time,
supervisory ratings, regularity of attendance and tenure. Whatever
criteria are used they must represent major or critical work
behaviors as revealed by careful job analyses."
"(4) In view of the possibility of bias inherent in subjective
evaluations, supervisory rating techniques should be carefully
developed, and the ratings should be closely examined for evidence
of bias. In addition, minorities might obtain unfairly low
performance criterion scores for reasons other than supervisor's
prejudice, as when, as new employees, they have had less
opportunity to learn job skills. The general point is that all
criteria need to be examined to insure freedom from factors which
would unfairly depress the scores of minority groups."
[
Footnote 31]
See n 27,
supra.
[
Footnote 32]
It cannot escape notice that Albemarle's study was conducted by
plant officials, without neutral, on-the-scene oversight, at a time
when this litigation was about to come to trial. Studies so closely
controlled by an interested party in litigation must be examined
with great care.
MR. JUSTICE MARSHALL, concurring.
I agree with the opinion of the Court. I write today only to
make the following observations about the proceedings in the
District Court on remand relative to the backpay issue.
As the Court affirms, there is no legal bar to raising a claim
for backpay under Title VII at any time in the proceedings, even
"indeed after a trial on [the] complaint [for injunctive relief]
has been had."
Ante at
422 U. S. 424.
Furthermore, only the most unusual circumstances would constitute
an equitable barrier to the award of make-whole relief where
liability is otherwise established. The bar of laches, predicated
on the prejudice to a defendant's case from the tardy entry of a
prayer for compensation, should be particularly difficult to
establish.
Backpay in Title VII cases is generally computed, with respect
to each affected employee or group of employees, by determining the
amount of compensation lost as a direct result of the employer's
discriminatory decision not to hire or promote. In litigation such
as this, where the plaintiff class is limited to present and former
employees of petitioner company who were denied promotions into the
more lucrative positions because of their race, there is no need to
make additional findings and offsetting computations for wages
earned in alternative employment during the relevant period.
The information needed in order to compute backpay for
nonpromotion is contained in the personnel records and pay
schedules normally maintained by an employer, some under compulsion
of law. These data include the time at which an employee in the
favored group was promoted over an otherwise more senior member of
the disfavored class, and the wage differential that the promotion
entailed. Rarely, if ever, could an employer plausibly invoke the
doctrine of laches on the usual
Page 422 U. S. 441
ground that the passage of time has put beyond reach evidence or
testimony necessary to his case.
The prejudice on which the District Court relied here was,
indeed, of a different and more speculative variety. The court made
no findings of fact relevant to the subject, but found it
"apparent" that prejudice would accrue because
"[t]he defendants might have chosen to exercise unusual zeal in
having this court determine their rights at an earlier date had
they known that back pay would be at issue."
2 App. 498. This indulgent speculation is clearly not an
adequate basis on which to deny the successful Title VII
complainant compensatory backpay, and surely even less of a reason
for penalizing the members of the class that he represents.* In
posing as an issue on remand "[w]hether the petitioners were,
in fact, prejudiced,"
ante at
422 U. S. 424
(emphasis added), the Court recognizes as much.
Although, on the record now before us, I have no doubt that
respondents' tardiness in asserting their claim to backpay was
excusable in light of the uncertain state of the law during the
first years of this litigation, I agree that the District Court
should be the first to pass upon the issues as the Court has posed
them. Doubtful though I remain about their ability to do so,
petitioners are entitled at least to an opportunity to prove that
respondents' delay prejudiced their defense so substantially as to
make an award of compensatory relief oppressive.
* Even the District Court's formulation, if founded upon proof
that the defendants would have "chosen to exercise unusual zeal,"
would only justify a limitation on the award of backpay to reflect
the earlier date at which the court would have awarded it; in no
event would it support the denial of all backpay relief.
MR. JUSTICE REHNQUIST, concurring.
I join the opinion of the Court. The manner in which 42 U.S.C. §
2000e-5(g) (1970 ed., Supp. III) is construed
Page 422 U. S. 442
has important consequences not only as to the circumstances
under which backpay may be awarded, but also as to the method by
which any such award is to be determined.
To the extent that an award of backpay were to be analogized to
an award of damages, such an award, upon proper proof, would follow
virtually as a matter of course from a finding that an employer had
unlawfully discriminated contrary to the provisions of Title VII of
the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal
Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e
et seq. (1970 ed. and Supp. III). Plaintiffs would be
entitled to the benefit of the rule enunciated in
Bigelow v.
RKO Radio Pictures, 327 U. S. 251,
327 U. S. 265
(1946):
"'The constant tendency of the courts is to find some way in
which damages can be awarded where a wrong has been done.
Difficulty of ascertainment is no longer confused with right of
recovery' for a proven invasion of the plaintiff's rights.
Story
Parchment Co. v. Patterson Co., [
282 U.S.
555,]
282 U. S. 565."
But precisely to the extent that an award of backpay is thought
to flow as a matter of course from a finding of wrongdoing, and
thereby becomes virtually indistinguishable from an award for
damages, the question (not raised by any of the parties, and
therefore quite properly not discussed in the Court's opinion), of
whether either side may demand a jury trial under the Seventh
Amendment becomes critical. We said in
Curtis v. Loether,
415 U. S. 189,
415 U. S. 197
(1974), in explaining the difference between the provision for
damages under § 812 of the Civil Rights Act of 1968, 82 Stat. 88,
42 U.S.C.
Page 422 U. S. 443
§ 3612, and the authorization for the award of backpay which we
treat here:
"In Title VII cases, also, the courts have relied on the fact
that the decision whether to award backpay is committed to the
discretion of the trial judge. There is no comparable discretion
here: if a plaintiff proves unlawful discrimination and actual
damages, he is entitled to judgment for that amount. . . . Whatever
may be the merit of the 'equitable' characterization in Title VII
cases, there is surely no basis for characterizing the award of
compensatory and punitive damages here as equitable relief."
(Footnote omitted.)
In
Curtis, supra, the Court further quoted the
description of the Seventh Amendment in Mr. Justice Story's opinion
for this Court in
Parsons v.
Bedford, 3 Pet. 433,
28 U. S. 447
(1830), to the effect that:
"In a just sense, the amendment then may well be construed to
embrace all suits which are not of equity and admiralty
jurisdiction, whatever may be the peculiar form which they may
assume to settle legal rights."
To the extent, then, that the District Court retains substantial
discretion as to whether or not to award backpay notwithstanding a
finding of unlawful discrimination, the nature of the jurisdiction
which the court exercises is equitable, and under our cases neither
party may demand a jury trial. To the extent that discretion is
replaced by awards which follow as a matter of course from a
finding of wrongdoing, the action of the court in making such
awards could not be fairly characterized as equitable in character,
and would quite arguably be subject to the provisions of the
Seventh Amendment.
Thus, I believe that the broad latitude which the
Page 422 U. S. 444
Court's opinion reposes in the district courts in the decision
as to whether backpay shall be awarded is not only consistent with
the statute, but is supported by policy considerations which would
favor the more expeditious disposition which may be made of
numerous claims on behalf of frequently large classes by a court
sitting without a jury. As the Court states,
ante at
422 U. S. 419,
the backpay remedy provided by Title VII is modeled on the remedial
provisions of the NLRA. This Court spoke to the breadth of the
latter provision in
Phelps Dodge Corp. v. NLRB,
313 U. S. 177,
313 U. S. 198
(1941), when it said:
"[W]e must avoid the rigidities of an either-or rule. The remedy
of back pay, it must be remembered, is entrusted to the Board's
discretion; it is not mechanically compelled by the Act. And in
applying its authority over back pay orders, the Board has not used
stereotyped formulas, but has availed itself of the freedom given
it by Congress to attain just results in diverse, complicated
situations."
I agree, nonetheless, with the Court that the District Court
should not have denied backpay in this litigation simply on the
ground that Albemarle's breach of Title VII had not been in "bad
faith." Good faith is a necessary condition for obtaining equitable
consideration, but in view of the narrower "good faith" defense
created by statute, 42 U.S.C. § 2000e-12(b), it is not for this
Court to expand such a defense beyond those situations to which
Congress had made it applicable. I do not read the Court's opinion
to say, however, that the facts upon which the District Court based
its conclusion,
ante at
422 U. S. 422
n. 15, would not have supported a finding that the conduct of
Albemarle was reasonable under the circumstances as well as being
simply in good faith. Nor do I read the Court's opinion to say that
such a combination of factors might not, in appropriate
circumstances, be an
Page 422 U. S. 445
adequate basis for denial of backpay.
See Schaeffer v. San
Diego Yellow Cabs, Inc., 462 F.2d 1002, 1006 (CA9 1972);
United States v. Georgia Power Co., 474 F.2d 906, 922 (CA5
1973).
A cursory canvass of the decisions of the District Courts and
Courts of Appeals which confront these problems much more often
than we do suggests that the most frequently recurring problem in
this area is the difficulty of ascertaining a sufficient causal
connection between the employer's conduct properly found to have
been in violation of the statute and an ascertainable amount of
backpay lost by a particular claimant as a result of that conduct.
United States v. St. Louis-S. F. R. Co., 464 F.2d 301, 311
(CA8 1972),
cert. denied, 409 U.S. 1116 (1973). The Court
of Appeals for the Eighth Circuit aptly described the difficulty of
fashioning an award of backpay in the circumstances before it, and
upheld the District Court's refusal to award backpay, in
Norman
v. Missouri P. R. Co., 497 F.2d 594, 597 (1974),
cert.
denied, 420 U.S. 908 (1975):
"No standard could determine the right to back pay itself nor
the date from which to compute any right to back pay. Courts that
have found back pay awards to be appropriate remedies in Title VII
actions have generally recognized that such awards should be
limited to actual damages. . . ."
As the Court recognizes,
ante at
422 U. S.
424-425, another factor presented here which is relevant
to the District Court's exercise of discretion is the possible
detrimental reliance of petitioners on prior representations of
respondents that they were not seeking classwide backpay. In 1966,
respondents in replying to a motion for summary judgment expressly
represented to the District Court that they had no interest in
classwide backpay:
"It is important to understand the exact nature of
Page 422 U. S. 446
the class relief being sought by plaintiffs. No money damages
are sought for any member of the class not before the court. . .
."
"
* * * *"
". . . [T]he matter of specific individual relief for other
class members is not before this Court."
1 App. 13-14.
Five years later, respondents reversed their position and
asserted a claim for classwide backpay. Petitioners have argued
here and below that they reasonably relied to their detriment on
respondents' statement in numerous ways including an interim sale
of the mill at a price which did not take into account the ruinous
liability with which the new owners are now faced, failure to
investigate and prepare defenses to individual backpay claims which
are now nine years old, and failure to speed resolution of this
lawsuit. 474 F.2d 134, 146 n. 16 (CA4 1973). This conduct by the
respondents presents factual and legal questions to be resolved in
the first instance by the District Court, reviewable only on
whether its factual findings are "clearly erroneous" and whether
its ultimate conclusion is an "abuse of discretion" under all the
circumstances of this case.
Ante at
422 U. S.
424-425. In the same manner that the good faith of an
employer may not be viewed in isolation as precluding backpay under
any and all circumstances, the excusable nature of respondents'
conduct, if found excusable, will not necessarily preclude denial
of a backpay award if petitioners are found to have substantially
and justifiably relied on respondents' prior representations.
If the award of backpay is indeed governed by equitable
considerations, and not simply a thinly disguised form of damages,
factors such as these and others, which may argue in favor of or
against the equities of either plaintiff or defendants, must be
open for consideration
Page 422 U. S. 447
by the District Court. It, like the NLRB, must avail itself "of
the freedom given it by Congress to attain just results in diverse,
complicated situations."
Phelps Dodge Corp. v. NLRB, 313
U.S. at
313 U. S.
198.
MR JUSTICE BLACKMUN, concurring in the judgment.
I concur in the judgment of the Court, but I do not agree with
all that is said in the Court's opinion.
The statutory authority for making awards of backpay in Title
VII cases is cast in language that emphasizes flexibility and
discretion in fashioning an appropriate remedy:
"If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the
respondent from engaging in such unlawful employment practice, and
order such affirmative action
as may be appropriate, which
may include, but is not limited to, reinstatement or hiring of
employees,
with or without back pay . . . or any other
equitable relief as the court deems appropriate."
78 Stat. 261, as amended, 86 Stat. 107, 42 U.S.C. § 2000e-5(g)
(1970 ed., Supp. III) (emphasis added). Despite this statutory
emphasis on discretion, the Court of Appeals in this case reasoned
by analogy to
Newman v. Piggie Park Enterprises,
390 U. S. 400
(1968), that, once a violation of Title VII had been established,
"[backpay] should ordinarily be awarded . . . unless special
circumstances would render such an award unjust." 474 F.2d 134, 142
(CA4 1973). Today the Court rejects the "special circumstances"
test adopted by the Court of Appeals, and holds that the power to
award backpay is a discretionary power, the exercise of which must
be measured against "the purposes which
Page 422 U. S. 448
inform Title VII."
Ante at
422 U. S.
415-417. With this much of the Court's opinion I agree.
The Court goes on to suggest, however, that an employer's good
faith is never a sufficient reason for refusing to award backpay.
Ante at
422 U. S.
422-423. With this suggestion I do not agree. Instead, I
believe that the employer's good faith may be a very relevant
factor for a court to consider in exercising its discretionary
power to fashion an appropriate affirmative action order. Thus, to
take a not uncommon example, an employer charged with sex
discrimination may defend on the ground that the challenged conduct
was required by a State's "female protective" labor statute.
See, e.g., Kober v. Westinghouse Electric Corp., 480 F.2d
240 (CA3 1973);
Manning v. General Motors Corp., 466 F.2d
812 (CA6 1972),
cert. denied, 410 U.S. 946 (1973);
Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002
(CA9 1972);
LeBlanc v. Southern Bell Telephone & Telegraph
Co., 460 F.2d 1228 (CA5),
cert. denied, 409 U.S. 990
(1972). In such a case, the employer may be thrust onto the horns
of a dilemma: either he must violate Title VII or he must violate a
presumptively valid state law. Even though good faith reliance on
the state statute may not exonerate an employer from a finding that
he has intentionally violated Title VII,
see, e.g., Kober v.
Westinghouse Electric Corp., supra; cf., ante at
422 U. S. 423
nn. 17-18, surely the employer's good faith effort to comply with
Title VII to the extent possible under state law is a relevant
consideration in considering whether to award backpay. Although
backpay in such a case would serve the statutory purpose of making
the discriminatee whole, it would do so at the expense of an
employer who had no alternative under state law and who derived no
economic benefit from the challenged conduct.
I also agree with the decision of the Court
Page 422 U. S. 449
to vacate the judgment of the Court of Appeals insofar as it
appeared to require an injunction against all testing by Albemarle.
I cannot join, however, in the Court's apparent view that absolute
compliance with the EEOC Guidelines is a
sine qua non of
pre-employment test validation. The Guidelines, of course, deserve
that deference normally due agency statements based on agency
experience and expertise. Nevertheless, the Guidelines in question
have never been subjected to the test of adversary comment. Nor are
the theories on which the Guidelines are based beyond dispute. The
simple truth is that pre-employment tests, like most attempts to
predict the future, will never be completely accurate. We should
bear in mind that pre-employment testing, so long as it is fairly
related to the job skills or work characteristics desired,
possesses the potential of being an effective weapon in protecting
equal employment opportunity because it has a unique capacity to
measure all applicants objectively on a standardized basis. I fear
that a too-rigid application of the EEOC Guidelines will leave the
employer little choice, save an impossibly expensive and complex
validation study, but to engage in a subjective quota system of
employment selection. This, of course, is far from the intent of
Title VII.
MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in
part.
I agree with the Court's opinion insofar as it holds that the
availability of backpay is a matter which Title VII commits to the
sound equitable discretion of the trial court. I cannot agree with
the Court's application of that principle in this case, or with its
method of reviewing the District Court's findings regarding
Albemarle's testing policy.
Page 422 U. S. 450
With respect to the backpay issue, it must be emphasized that
Albemarle was not held liable for practicing overt racial
discrimination. It is undisputed that it voluntarily discontinued
such practices prior to the effective date of Title VII, and that
the statute does not -- and could not -- apply to acts occurring
before its passage. The basis of Albemarle's liability was that its
seniority system perpetuated the effects of past discrimination
and, as the District Court pointed out, the law regarding an
employer's obligation to cure such effects was unclear for a
considerable period of time. Moreover, the District Court's finding
that Albemarle did not act in bad faith was not simply a
determination that it thought its seniority system was legal but,
rather, a finding that, both prior to and after the filing of this
lawsuit, it took steps to integrate minorities into its labor force
and to promptly fulfill its obligations under the law as it
developed. [
Footnote 2/1]
In light of this background, the Court's suggestion that the
District Court "conditioned" awards of backpay upon a showing of
bad faith,
ante at
422 U. S. 423,
is incorrect. Moreover, the District Court's findings on this point
cannot be disregarded as irrelevant. As the Court's opinion notes,
one of Congress' major purposes in giving district courts
discretion to award backpay in Title VII
Page 422 U. S. 451
actions was to encourage employers and unions
"'to self-examine and to self-evaluate their employment
practices and to endeavor to eliminate, so far as possible, the
last vestiges of an unfortunate and ignominious page in this
country's history.'"
Ante at
422 U. S. 418.
By the same token, if employers are to be assessed backpay even
where they have attempted in good faith to conform to the law, they
will have little incentive to eliminate marginal practices until
bound by a court judgment. Plainly, then, the District Court's
findings relate to "reasons which, if applied generally, would not
frustrate the central statutory purposes. . . ."
Ante at
422 U. S. 421.
Because respondents waited five years before changing their
original position disclaiming backpay and belatedly seeking it,
thus, suggesting that a desire to be "made whole" was not a major
reason for their pursuit of this litigation, I cannot say that the
District Court abused its discretion by denying that remedy.
[
Footnote 2/2]
The Court's treatment of the testing issue is equally troubling.
Its entire analysis is based upon a wooden application of EEOC
Guidelines which, it says, are entitled to "great deference" as an
administrative interpretation of Title VII under
Griggs v. Duke
Power Co., 401 U. S. 424
(1971). The Court's reliance upon
Griggs is misplaced.
There we were dealing with Guidelines which state that a test must
be demonstrated to be job-related before it can qualify for the
exemption contained in § 703(h) of Title VII 78 Stat. 257, 42
U.S.C. § 2000e-2(h) as a device not "designed, intended or used to
discriminate. . . ." Because this interpretation
Page 422 U. S. 452
of specific statutory language was supported by both the Act and
its legislative history, we observed that there was "good reason to
treat the guidelines s expressing the will of Congress." 401 U.S.
at
401 U. S. 434.
See also Espinoza v. Farah Mfg. Co., 414 U. S.
86,
414 U. S. 93-95
(1973).
In contrast, the Guidelines upon which the Court now relies
relate to methods for proving job-relatedness; they interpret no
section of Title VII, and are nowhere referred to in its
legislative history. Moreover, they are not federal regulations
which have been submitted to public comment and scrutiny as
required by the Administrative Procedure Act. [
Footnote 2/3] Thus, slavish adherence to the EEOC
Guidelines regarding test validation should not be required; those
provisions are, as their title suggests, guides entitled to the
same weight as other well-founded testimony by experts in the field
of employment testing.
The District Court so considered the Guidelines in this case and
resolved any conflicts in favor of Albemarle's experts. For
example, with respect to the question whether validating tests for
persons at or near the top of a line of progression "is a
permissible measure of the minimal qualifications of new workers,"
ante at
422 U. S. 434,
the District Court found:
"The group tested was typical of employees in the skilled lines
of progression. They were selected from the top and middle of
various lines. Professional studies have shown that, when tests are
validated
Page 422 U. S. 453
in such a narrow range of competence, there is a greater chance
that the test will validate even a broader range, that is, if job
candidates as well as present employees are tested."
2 App. 490-491.
Unless this Court is prepared to hold that this and similar
factual findings are clearly erroneous, the District Court's
conclusion that Albemarle had sustained its burden of showing that
its tests were job-related is entitled to affirmance, if we follow
traditional standards of review. At the very least, the case should
be remanded to the Court of Appeals with instructions that it
reconsider the testing issue, giving the District Court's findings
of fact the deference to which they are entitled.
[
Footnote 2/1]
The District Court concluded that Albemarle was entirely
justified in maintaining some type of seniority system which
insured that its employees would have "a certain degree of training
and experience." Its findings regarding the absence of bad faith
were as follows:
"It appears that the company, as early as 1964, began active
recruitment of blacks for its Maintenance Apprentice Program.
Certain lines of progression were merged on its own initiative,
and, as judicial decisions expanded the then-existing
interpretations of the Act, the defendants took steps to correct
the abuses without delay."
2 App. 498.
[
Footnote 2/2]
As the Court points out,
ante at
422 U. S. 424
n. 20, the District Court's reasons for denying backpay were
cumulative. It did not favor one policy of Title VII to the
exclusion of all others, as I fear this Court is now doing.
[
Footnote 2/3]
Such comment would not be a mere formality in light of the fact
that many of the EEOC Guidelines are not universally accepted. For
example, the Guideline relating to "differential validation," upon
which the Court relies in this case,
ante at
422 U. S. 435
has been questioned by the American Psychological Association.
See United States v. Georgia Power Co., 474 F.2d 96, 914
n. 8 (CA5 1973).