Lead Opinion
Certain former and present city workers (appellants) appeal from the district court’s judgment that they are entitled to no relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, for having lost their jobs by failing allegedly discriminatory civil service examinations. We affirm.
I
Contreras, E. Gonzalez, Mock, and Zavala (accountants) were employed by the City of Los Angeles (City) as Senior Accountants in the Training and Job Development Division of the Mayor’s office. Maria Gonzalez
In early 1976, when the City transferred the function of the Training and Job Development Division to the newly created Community Development Department, the senior accountant and auditor positions previously assigned to the Mayor’s office became subject to the City’s civil service commission. Consequently, appellants were required to pass written examinations before assuming senior accountant and auditor status in the new department. The City Council, in an effort to avoid possible inequities to appellants and others employed in the Mayor’s office, proposed an amendment to the city charter exempting the employees from the examination requirement. Unfortunately for appellants, that amendment was defeated by the electorate in November 1976.
Prior to the rejection of the amendment, accountants took and failed the senior accountant examination. Gonzalez passed the auditor examination but scored too low to be employed as an auditor in the new office. Although accountants thus became ineligible for their former senior accountant positions, each of them scored high enough to be employed at his former salary
Following voter rejection of the exempting amendment, appellants commenced this action in district court, claiming that the City’s examinations unlawfully discriminated against Spanish-surnamed applicants. They requested that the district court enjoin the City from using the discriminatory examinations, order the City to develop examinations that accurately predict job performance, and order the City to retain appellants in their former positions until the new examinations are developed.
II
The three-step inquiry of Title VII actions is well-established, particularly in cases such as this where preemployment screening devices are used.
In this case the district judge accepted evidence probative of all three stages of the Title VII inquiry. After doing so, he ruled that appellants had failed to establish a prima facie case of discriminatory impact upon Spanish-surnamed applicants, that the City had proven the senior accountant and auditor examinations to be job related, and that appellants had failed to prove the existence of a non-discriminatory alternative that would select qualified employees with the same degree of accuracy as the written examination. We must first determine whether the district court’s finding that appellants failed to present a prima facie case of discrimination is clearly erroneous. Mayor of Philadelphia v. Educational Equality League,
A. The Senior Accountant Examination
In attempting to prove that the senior accountant examination had a significantly discriminatory impact on Spanish-surnamed applicants, accountants introduced the following statistical evidence: 5 of 17 or 29.4 percent of the Spanish-surnamed applicants taking the examination passed, while 22 of 40 or 55 percent of the whites who took the examination passed; also, the mean score for Spanish-surnamed applicants was 60.7, 6V2 points below the 67.2 mean score of white applicants. In addition to this statistical evidence, accountants introduced expert testimony that these statistics are reliable evidence of a discriminatory examination and that Spanish-surnamed individuals generally do worse than whites on written examinations.
The district judge, relying on evidence produced by the City, rejected the accountants’ proof of a prima facie case for two reason. First, he placed little evidentiary weight on the examination results because the figures, although disparate, were not statistically significant when tested at a .05 level of significance. Second, he concluded that the accountants scored low because they failed to study seriously in preparation for the examination. We will discuss his reasons separately.
In considering the district court’s reliance on lack of statistical significance, we observe that the Supreme Court has stated: “ ‘[statistical analyses have served and will continue to serve an important role’ in cases in which the existence of discrimination is a disputed issue.” International Bhd. of Teamsters v. United States,
A total of 17 Spanish-surnamed applicants took the senior accountant examination. The City’s expert witness testified that the statistics calculable from such a small sample are not significant at a .05 level of statistical significance,
As to the district judge’s second reason, we begin with the premise that any statistical evidence produced by a plaintiff is subject to rebuttal by the employer. Id. at 331,
That accountants failed to prepare adequately for the examination is corroborated by their examination performance. Their average examination score, aside from being well below the established passing score, was 11.58 percent below the average score of the other 13 Spanish-surnamed applicants who took the test. Moreover, they scored well below the average Spanish-sur-named score in every examination category.
We conclude that the district court’s finding that accountants failed to establish a prima facie case of discrimination was not clearly erroneous. In doing so we recognize the discriminatory implications of the disparate examination statistics and the expert testimony concerning their reliability. On the other hand, the City’s expert testimony, the small statistical base, and the impeachment of the statistics by evidence of the accountants’ failure to study, all convince us that the district court’s conclusion was not an unreasonable interpretation of the evidence presented. “[Wjhere the evidence would support a conclusion either way but ... the trial court has decided it to weigh more heavily for the defendant[,] [sjuch a choice between two permissible views of the weight of evidence is not ‘clearly erroneous.' ” United States v. Yellow Cab. Co.,
B. The Auditor Examination
Gonzalez also relied upon statistical evidence in attempting to prove the discriminatory impact of the auditor examination: 6 of 23 or 26.1 percent of the Spanishsurnamed applicants passed the examination, while 23 of 36 or 63.9 percent of the white applicants passed. The mean score of Spanish-surnamed applicants, 57.3, was more that 10 points below the 67.4 mean score of white applicants. The district judge expressly found that this evidence indicated a statistical adverse impact on Spanish-surnamed auditor applicants. Although Gonzalez passed the auditor examination, she failed to secure her desired position because she did not score highly enough. She relies upon the disproportionate pass rate to contend that she lost her job through an unlawfully discriminatory examination.
The district judge ruled that Gonzalez did not establish a prima facie case of discriminatory impact. He did so by combining the distribution of scores on the auditor examination with the results of a separate, senior auditor examination, on which Spanish-sur-named applicants performed better than any other ethnic group. Because 75 of the 125 questions on the senior auditor examination also appeared on the 100-question auditor examination, the district judge concluded that the auditor examination could not have discriminated against Spanish-sur-named applicants. The district judge also relied upon the fact that Gonzalez was denied employment not solely on the basis of her written examination score, but also on the basis of an oral interview score.
The district judge erred in concluding that Gonzalez failed to establish a prima facie case of discriminatory impact. The City did not rebut the statistical evidence produced by Gonzalez. Moreover, the district judge’s reason for concluding that Gonzalez failed in her proof — the combined
Nor does the fact that Gonzalez was denied employment on the basis of a combined oral interview and written examination score support the district court’s ruling that Gonzalez failed in her proof. Gonzalez’ written examination score, although high enough to pass, was lower than the average passing score. Her oral interview score, on the other hand, was well above average. Thus, it was her written examination score that most substantially impaired her chances of obtaining the auditor position.
Statistical disparities alone may constitute prima facie proof of discrimination. New York Transit Authority v. Beazer,
Ill
A. The Employer’s Burden of Proof Under Title VII
The allocation of proof in Title VII cases is well established. Once a plaintiff has met his or her burden of proving a prima facie case of discriminatory impact, the employer bears some burden of justifying the business practice in terms of business need. If this burden is met, the plaintiff then assumes the burden of proving the availability of an effective business alternative with less disparate racial impact.
In Craig v. County of Los Angeles, supra, we recently concluded that an employer must prove such tests to be “significantly job-related.”
“[Djiscriminatory tests are impermissible unless shown, by professionally accepted 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 C.F.R. § 1607.4(c).”
The employer’s burden in Craig comports with that applied in deLaurier v. San Diego Unified School District, supra,
Gonzalez refers us to Blake v. City of Los Angeles, supra,
Because it is the language from Dothard that is at the root of the issue before us, our effort to harmonize our cases must be guided by the Supreme Court’s interpretation of that language. Before turning to the Supreme Court cases, we identify the issue in more detail.
The Craig test, by permitting job-related employment practices, views Title VII, as far as this case is concerned, as prohibiting only race-related employment criteria. The test maximizes employer freedom, restricting it only when employment decisions are made wholly or partially on the basis of race. It mandates employer color-blindness, but otherwise respects an employer’s right to seek maximum employee productivity and efficiency. Thus, the Craig/deLau-rier test tolerates a disparate impact on racial minorities so long as that impact is only an incidental product of criteria that genuinely predict or significantly correlate with successful job performance, and does not result from criteria that make race a factor in employment decisions.
The interpretation of Blake referred to above, on the other hand, views Title VII as much more restrictive of employer decision-making. That reading would not tolerate a disparate impact on racial minorities that results from job-related criteria. So understood, Blake would allow disparately impacting criteria only when forbidding them would seriously damage the business, that is, when they are “necessary” to operation of the business. Such a test would thus minimize an employer’s freedom, permitting him to employ disproportionately-impacting criteria only if he can prove them necessary to the functioning of his enterprise. That such criteria are effective predictors of employee performance is insufficient under this view of Title VII. Thus, such a test would prohibit some pre-employment screening devices permitted by the Craig/deLaurier test: devices that actually predict employee performance, but that cannot be proven necessary to the operation of the business.
In determining whether Title VII requires application of the employer’s burden of proof set forth in Craig and deLaurier or some other level of proof, we are not free to invoke our perception of ideal social policy. Rather, we must ascertain Congress’ intent in enacting Title VII. Because the face of the statute does not clearly resolve the question before us, we look for guidance to the legislative history of Title VII, United States v. Culbert,
Congress’ primary objective in passing Title VII was to eliminate race-related employment criteria. Senators Clark and Case, co-managers of Title VII on the Senate floor, issued an interpretative memorandum defining discrimination:
To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which areprohibited by [Title VII] are those which are based on any of the five forbidden criteria: race, color, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title.
110 Cong.Rec. 7213 (1964). Critics of the legislation were concerned that Title VII would intolerably burden employers and would force them to abandon employee selection practices based on productivity and efficiency. See Griggs v. Duke Power Co.,
Whatever its merits as a socially desirable objective, title VII would not require, and no court could read title VII as requiring, an employer to lower or change the occupational qualifications he sets for his employees simply because proportionately fewer Negroes than whites are able to meet them.. . .
Title VII says merely that a covered employer cannot refuse to hire someone simply because of his color; . . . [I]t 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. 7246-47 (1964). Senators Clark and Case assured the critics that “[a]n employer may set his qualifications as high as he likes . ..,” id. at 7213, and Senator Humphrey stated that “[t]he employer will outline the qualifications to be met for the job. The employer, not the Government will establish the standards.” Id. at 13088.
By enacting Title VII, “[discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.” Griggs v. Duke Power Co., supra,
Therefore, we conclude that the employer’s burden of proof required by Craig and deLaurier is more consistent with Congress’ Title VII intent than the employer’s burden of proof required by the interpretation of Blake suggested above. Our review of Supreme Court case law reinforces this conclusion.
The Supreme Court first considered an employer’s duty under Title VII in Griggs v. Duke Power Co., supra,
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.
Id. at 431,
Four years after the Griggs decision, the Supreme Court answered the very question considered by us today: “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?” Albemarle Paper Co. v. Moody, supra,
We now turn to the troublesome Supreme Court language that appears in Dothard v. Rawlinson, supra,
Since Dothard, the Court has indicated that the Griggs/Albemarle standard, rather than the Dothard footnote, controls Title VII inquiries. In New York Transit Authority v. Beazer,
Respondents recognize, and the findings of the District Court establish, that TA’s legitimate employment goals of safety and efficiency require that exclusion of all users of illegal narcotics, barbiturates, and amphetamines, and of a majority of all methadone users. The District Court also held that those goals require the exclusion of all methadone users from the 25% of its positions that are “safety sensitive.” Finally, the District Court noted that those goals are significantly served by — even if they do not require —TA’s rule as it applies to all methadone users including those who areseeking employment in nonsafety-sensi-tive positions. The record thus demonstrates that TA’s rule bears a “manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. 424 , 432,91 S.Ct. 849 , 854,28 L.Ed.2d 158 . See Albemarle Paper Co. v. Moody,422 U.S. 405 , 425,95 S.Ct. 2362 , 2375,45 L.Ed.2d 280 .
Id.
We conclude that any employer burden of proof that could be suggested by the possible strong reading of Blake’s “business necessity” language would be inconsistent with Supreme Court case law and the Congressional intent underlying Title VII. Accordingly, we reject that interpretation of Blake. We interpret Blake in line with our precedents decided before (deLaurier) and after (Craig) that case. We hold that discriminatory tests are impermissible unless shown, by professionally accepted methods, to be predictive of or significantly correlated with important elements of work behavior that comprise or are relevant to the job or jobs for which candidates are being evaluated.
B. Validation of the Auditor Examination
The district court made two conclusions of law relevant to the validation issue:
4. The Defendants may demonstrate that a test is job related by any competent evidence. Washington v. Davis,426 U.S. 229 [96 S.Ct. 2040 ,48 L.Ed.2d 597 ] (1976); see also, Blake v. City of Los Angeles, [435 F.Supp. 55 (C.D. Cal. 1977)].
6. There is no magic in any validating procedure, and the Defendants need only supply competent and relevant evidence upon the issue of the job-relatedness of their employment standards. Washington v. Davis,426 U.S. 229 (1976) at 247 n. 13 [96 S.Ct. 2040 at 2051 n. 13,48 L.Ed.2d 597 ].
These conclusions would be error if they implied that the evidence need not show that the screening device was validated “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.’ ” Albemarle Paper Co. v. Moody, supra,
We doubt, however, that the district judge intended anything more than the appropriateness of accepting any competent and relevant evidence tending to establish the existence of a professionally acceptable validation. We so interpret the district judge’s conclusion of law because footnote 13 of Washington v. Davis discusses three different standards adopted by the American Psychological Association, and itself cites Albemarle and 29 C.F.R. § 1607.
To satisfy this requirement, examinations such as the one used by the City to hire auditors must be “ ‘validated’ in terms of job performance.” Washington v. Davis,
In Craig, we established a three-step procedure for validation of examinations used to select employees from among a group of applicants:
The employer must first specify the particular trait or characteristic which the selection device is being used to identify or measure. The employer must then determine that that particular trait or characteristic is an important element of work behavior. Finally, the employer must demonstrate by “professionally acceptable methods” that the selection device is “predictive of or significantly correlated” with the element of work behavior identified in the second step.
Craig v. County of Los Angeles,
The City’s validation of the auditor examination consisted of two phases: a job-analysis phase and an examination-review phase. In the job-analysis phase, a number of auditors and auditor supervisors employed in various civil service positions throughout the city were organized as a group of job experts for the purpose of determining what skill, knowledge, and ability was essential to the position of auditor. These job experts held four meetings. At the first meeting, they compiled a list of the tasks performed by City-employed auditors. At the second meeting, they deter
The examination review phase of the City’s validation study occurred after the applicants had taken the examination. In this phase, a new group of job experts was selected from among civil service auditors and supervisors employed by the City. These experts individually reviewed each question and decided if it tested one of the critical elements identified in the first phase. Only if five of the seven job experts agreed that a question tested a critical element was the question considered job related. As a result of this procedure, all but five questions were determined to be job related.
This validation study satisfies our three-step procedure set forth in Craig v. County of Los Angeles, supra,
As mentioned earlier, a key requirement of this third step, a requirement essential to proof of job relatedness generally, is that the validation method be professionally acceptable. At trial, the City produced expert testimony that its validation procedures met professional standards. Gonzalez produced expert testimony that the procedures were professionally unacceptable. The district judge resolved this conflict of testimony in favor of the City’s expert, not only by ruling that the examinations were job related, but also by resolving every testimonial dispute between these experts in favor of the City. We will not disturb such a credibility determination.
Gonzalez contends that various methodological defects in the City’s validation study demonstrated that it was not conducted in a professionally acceptable manner.
Gonzalez contends that the City did not protect against job-expert bias, and indeed risked such bias, by selecting experts from among its own employees and by informing the selected experts about the pending Title VII lawsuit. Although accountants attempted to introduce hearsay evidence of actual bias among job experts for the senior accountant examination, Gonzalez introduced no evidence of actual bias among job experts for the auditor examination. The existence of bias was left to inference from the fact that job experts were City employees who knew of the lawsuit. However, the Supreme Court has not found employee involvement in and knowledge of a lawsuit to be fatal defects in a validation study. See Albemarle Paper Co. v. Moody, supra,
Gonzalez next contends that the validation study’s “most basic defect” occurred in the examination-review phase. Job experts were asked to determine whether each question tested a skill, knowledge, or ability included in one of the critical elements identified during the job analysis phase. Therefore, Gonzalez contends, the examination-review phase did not ensure that each question tested “essential knowledge, skills, or behaviors composing the job in question,” 29 C.F.R. § 1607.5(a) (1977) (emphasis added), as required by EEOC guidelines. We disagree. The critical elements presented to the job experts in the examination-review phase had, in the job-analysis phase, been determined to be skills, knowledge or ability critical or essential to performance of the auditor function. Therefore, by determining that the trait tested by each question was included in a critical element, the experts in the examination-review phase determined that the question tested a trait essential to the position of auditor. Moreover, before a question would be validated as job-related, five of seven job experts in the examination-review phase had to agree that it tested a critical element.
Gonzalez next alleges that the validation study was defective because it failed to
Gonzalez next contends that the examination-review phase failed to determine whether the difficulty level of the examination questions equaled the difficulty level of the auditor’s position, as required by some cases. See, e. g., Kirkland v. Department of Correctional Services,
Finally, Gonzalez contends that the examination passing score of 65 was arbitrarily set by the City charter, with no analysis of whether that score actually excluded some qualified applicants. We have two responses. First, Gonzalez passed the examination. Thus, a lower cutoff score would have had no effect on whether she was hired. Second, as discussed above, the nature of a civil service examination minimizes the significance of the cutoff score. Where an examination is designed to rank applicants so that only the top few may be hired (Gonzalez ranked 12th overall and she was not hired), the cutoff score is more a formality than a matter of consequence. Those who failed the examination would not have been hired even if they had passed by virtue of a lower cutoff score.
In summary, we conclude that the City’s validation study satisfied our previously established three-step criteria for validations of pre-employment examinations. That the validation was professionally acceptable is demonstrated by expert testimony in the record and the failure of each of Gonzalez’ challenges. The City established, by professionally acceptable standards, that the auditor examination was predictive of or significantly correlated with important elements of the auditor position. Thus, we must finally consider whether Gonzalez established the existence of a less discriminatory alternative.
IV
“If an employer [meets] the burden of proving that its tests are ‘job related,’ it
The only evidence produced by Gonzalez to establish the existence of alternative auditor selection methods was expert testimony that Spanish-surnamed individuals generally do better in oral interviews than on written examinations and that oral examinations could be used to screen applicants. However, even if the district court accepted this testimony as establishing that oral interviews have a less disparate impact on minorities, it does not satisfy Gonzalez’ burden of proving that oral interviews, as an alternative to written examinations, would satisfy the City’s civil service hiring needs.
V
In summary, we conclude that accountants failed to establish a prima facie case of discriminatory impact by the senior accountant examination. Gonzalez, although successfully establishing a prima facie case of discriminatory impact by the auditor examination, failed to prove that a less discriminatory alternative was available to the
AFFIRMED.
Notes
. Mock would initially suffer a $1,000 per year decrease in salary from his former senior accountant position, but would be eligible for civil service advancement levels paying more than his former salary.
. This opinion is limited to consideration of appellants’ claims under established Title VII principles. If plaintiffs have failed to meet their burden of proof under Title VII, they have also failed to establish their claim under 42 U.S.C. § 1981, whose standards are more stringent than those of Title VII. See Craig v. County of Los Angeles,
. “[A] .05 level of statistical significance indicates that the demonstrated relationship between the variables would occur in a random sample five times out of one hundred and is generally recognized as the point at which statisticians draw conclusions from statistical data.” White v. City of San Diego,
. An additional three passing scores would have meant that eight of seventeen or 47.1 percent of the Spanish-surnamed applicants passed the examination. Such a percentage would not have been less than Vs or 80 percent of the white passing rate (55 percent) as required by 28 C.F.R. § 50.14, at § 4(b) (1977). An additional four passing scores among Spanish-sumamed applicants would have produced a 52.9 percent passing rate, nearly equal to the 55 percent rate achieved by whites. Statistics are not trustworthy when minor numerical variations produce significant percentage fluctuations.
. The purpose of the procedure, as the Supreme Court recently spelled out, is ultimately to focus the court’s attention on the issue of discrimination. “In a Title VII case, the allocation of burdens ... is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Department of Community Affairs v. Burdine,
This formulation was written in a disparate treatment case. In a disparate impact case the dialectic of the allocation of burdens sharpens the inquiry down to a factual question of discrimination, but not necessarily intentional discrimination in the sense of discrimination that is conscious and purposeful.
In the disparate impact case, the plaintiff will recover if the disparate impact stems from decisions or practices that cannot be given a genuine business justification. A practice that is unjustifiable in race and sex neutral business terms is not always the product of intentional discrimination. The decision makers may simply have missed a less discriminatory option. In such an event we could speak of “negligent discrimination.”
The chief point, however, and one that Bur-dine makes clear, is that Title VII does not ultimately focus on ideal social distributions of persons of various races and both sexes. Instead it is concerned with combating culpable discrimination. In disparate impact cases, culpable discrimination takes the form of business decisions that have a discriminatory impact and are not justified by their job-relatedness.
. In Harriss v. Pan American World Airways, Inc.,
. Footnote 13 reads as follows:
It appears beyond doubt by now that there is no single method for appropriately validating employment tests for their relationship to job performance. Professional standards developed by the American Psychological Association in its Standards for Educational and Psychological Tests and Manuals (1966), accept three basic methods of validation: “empirical” or “criterion” validity (demonstrated by identifying criteria that indicate successful' job performance and then correlating test scores and the criteria so identified); “construct” validity(demonstrated by examinations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance); and “content” validity (demonstrated by tests whose content closely approximates tasks to be performed on the job by the applicant). These standards have been relied upon by the Equal Employment Opportunity Commission in fashioning its Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1975), and have been judicially noted in cases where validation of employment tests has been in issue. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 , 431,95 S.Ct. 2362 , 2378,45 L.Ed.2d 280 (1975); Douglas v. Hampton,168 U.S.App.D.C., at 70 ,512 F.2d, at 984 ; Vulcan Society v. Civil Service Comm'n,490 F.2d 387 , 394 (CA2 1973).
. Even if the district judge had been under the misapprehension that validation might sometimes be possible under other than professionally acceptable methods, this error would not infect his credibility determinations as between two different expert views of professionally acceptable methods.
. In attempting to show that the City’s examinations were not job related, the major contention in appellants’ brief is that successful employees would never fail a truly valid examination. Therefore, appellants contend that ac
. Evidence of specific questions that tested nonessential traits related only to the senior accountant examination, and therefore does not apply to the auditor examination.
. Civil service classifications and merit hiring are designed to eliminate the spoils system of political hiring, Kirkland v. New York State Department of Correctional Services,
Concurrence in Part
specially concurring in part and dissenting in part.
I
I write separately for two reasons. First, although I agree with the majority that the Title VII disparate impact business necessity defense requires only that the employer “demonstrate a significant relation between the challenged selection device or criteria and the important elements of the job or training program ...,” ante, at 1277-1279, quoting Craig v. County of Los Angeles,
II
The question raised in the majority opinion is whether we must first harmonize our ruling in Blake v. City of Los Angeles,
A.
In de Laurier v. San Diego Unified School District,
The majority’s argument that Blake departs from the de Laurier standard can be reduced to the following proposition: Although the de Laurier business necessity defense requires that an employer demonstrate that the employment practice is “ ‘necessary to safe and efficient job performance ...’”,
(D
The Requirements that the Job Practice Be “Necessary”
The compatibility between the Blake and de Laurier definitions of the word “necessary” can be demonstrated by an analysis of those cases. In de Laurier, a school district’s mandatory maternity leave policy was found “ ‘necessary to safe and efficient job performance’,”
Blake preserved the standard announced in de Laurier and expressly recognized that the term “necessary” meant nothing more than a “manifest relationship” between the job practice and business need. Blake,
“[J]ob relatedness is relevant only for the purpose of trying to prove that the characteristics which the tests select are directly related to the business necessity.”
Id. at 1377.
To justify the use of pre-employment selection devices as a business necessity, an employer must show that the tests are so closely job related that their use is “necessary to safe and efficient job performance.” (Dothard, supra,433 U.S. at 332 n.14,97 S.Ct. at 2728 ).
Id. at 1378.
In Albemarle, the Supreme Court explained the legal standard for determining the job relatedness of selection devices: “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.’ ”
Id. (citation omitted).
Appellees failed to establish that the LAPD’s selection devices were so closely job related that their use was justified by business necessity. At most, they showed that there was some rational relationship between their selection devices and certain elements of job performance by police.
Id. at 1379.
The Blake court did not demand an “absolutely necessary” relationship; rather it required a close or direct relationship. Blake did not, as the majority implies, ignore the Supreme Court’s Albemarle decision; it expressly relied upon Albemarle in formulating the job relatedness standard. See id. at 1378, citing Albemarle v. Moody, supra,422 U.S. at 431 ,95 S.Ct. at 2378 . Although Blake assertedly relied upon dictum in Dothard, ante, at 1279-1282, the language cited in Blake is probably a holding.2
In establishing the perceived distinction between the Blake and de Laurier standards, the majority points to a specific passage from Blake and argues than an “inordinate focus on [it] . . . might seem to suggest that business necessity is something over and above job relatedness.” Ante, at 1276-1277, quoting Blake,
Moreover, the application of the business necessity defense in Blake fully comported with de Laurier. Blake offered two holdings on the business necessity defense issue and neither even remotely suggests that an absolute necessity is required. First, the court held that, when an employment practice creates a disparate impact, a defendant’s good faith is immaterial to the business necessity defense. Id. at 1376-77. See Griggs v. Duke Power Co.,
Blake’s retention of the de Laurier business necessity defense and its rejection of the absolute necessity standard is perhaps best illustrated by comparing the language in Blake with the wording used in cases that do require an absolutely necessary relationship between the job practice and the business need. When courts require strict necessity, specific, unmistakable language is employed: “Necessity connotes an irresistible demand .... [A practice] must not only directly foster safety and efficiency . . ., but also must be essential to those goals.” United States v. Bethlehem Steel Corporation,
(2)
Allocation of Burden of Proof Regarding Less Discriminatory Alternatives
It might be argued that, if Blake did require absolute necessity between the employment practice and business need, it would subtly shift the plaintiff’s burden of proving the availability of less discriminatory alternatives into the defendant’s business necessity defense because no less discriminatory alternatives could exist if the practice were absolutely necessary to the business need. It could be argued further that, by implicitly requiring proof of the absence of less discriminatory alternatives, the employer is burdened with an unduly onerous task: proof of a negative.
The court in Robinson v. Lorillard Corporation,
If we assume that the words “necessary to safe and efficient job performance” refer to the means/end relationship between the job practice and business need (an assumption the majority and I seem to agree upon, see ante, at 1274-1277), the Dothard Court appears to have required simply that
Although an examination of less discriminatory alternatives could overlap with proof offered at the business necessity stage, the overlay would in no sense be an inevitable product of requiring a “necessary” relationship between the job practice and business need. Indeed, the Court suggested as much in Dothard when it asserted that the employer’s business need, strong prison guards, “could be achieved by [alternatively] adopting and validating a test for applicants that measures strength directly. Such a test, fairly administered, would fully satisfy the standards of Title VII . . . . ” Dothard v. Rawlinson,
Several cases seem to support the propositions that: (1) by focusing solely upon the degree of efficiency between job practice and business need, the “necessary” language in Dothard excludes consideration of less discriminatory alternatives as part of the employer’s proof; and (2) any discussion of alternatives during judicial review of the employer’s burden of proof centers on more efficient alternatives, and not, necessarily, on less discriminatory alternatives. See Albemarle Paper Co. v. Moody,
Of course, the more obvious evidence that the Court in Dothard did not intend that the word “necessary” subsume consideration of less discriminatory alternatives is the likelihood that the Court would not, within a period of only two years, implicitly contradict the allocation scheme announced in Albemarle. Therefore, the predicate to the possible criticism of Blake discussed here — that the word “necessary” effects a subtle shift in burdens — must be regarded with some caution.
Even if we work under the assumption that an “absolutely necessary” standard
Quite apart from its content, the organization of the Blake opinion indicates that the court followed the precedent of de Lau-rier and Albemarle. The discussions of the business necessity defense and the plaintiff’s proof of less discriminatory alternatives are plainly demarcated by separate subtitles. Blake,
The comparison between Blake and the de Laurier dissent is most important on the issue of proof of less discriminatory alternatives: Blake directly conflicts with the allocation advocated in the de Laurier dissent. In discussing the issue of alternatives, the de Laurier dissent, unlike Blake, drastically blurred and probably ignored the distinction between the business necessity defense and the plaintiff’s burden of showing less discriminatory alternatives:
Even if the district court’s findings were unavailable, the business necessity conclusion cannot be sustained because the district court completely failed to consider the existence of less burdensome alternatives, such as individualized decision-making, that would serve the legitimate interests of the school district as well as the mandatory leave policy. The evidence presented by both parties, and the court’s own findings of fact, strongly suggest the availability of such alternatives, and Do-thard requires that they be considered in establishing the business necessity defense.
de Laurier,
B.
An analysis of Blake and a comparison between it and the de Laurier majority indicates that the same degree of necessity is demanded in both cases — reasonable necessity. Moreover, those circuits that have adopted a strict or absolute necessity approach to the business necessity defense expressly indicate the use of the more exacting standard by employing words such as “irresistible” and “essential” in expressing the degree of necessity required and discard the “directly foster” standard as too lenient. Blake, on the other hand, adopts a “directly related to” standard that is substantively indistinguishable from the “directly foster” test. Thus, Blake eschews the more demanding tests of other circuits and, consistent with de Laurier, adopts an intermediate standard requiring more than a rational relationship but less than an absolutely necessary connection. This standard fully comports with our decisions, including that announced today by the majority. See ante, at 1275-1277 (requiring more than a rational relationship).
An examination of the Blake decision also contradicts any claim that it either sanctions or encourages a sub silentio shift in the burden of showing the availability of less burdensome alternatives. By requiring less than absolute necessity and by separating the discussion and application of the business necessity defense from the analysis of less burdensome alternatives, Blake precludes any subtle shift in burden of proof, even if such a shift were possible. Moreover, Blake clearly disavows the de Laurier dissent’s allocation of proof on the alternatives issue. Blake, therefore, correctly observes the de Laurier majority’s precedent on the issue of proving less discriminatory alternatives.
There is no intracircuit discord over the business necessity defense. The Craig decision, a purported foil to the Blake analysis, see ante, at 1276-1277, directly cites the Blake formulation of the business necessity defense,
Ill
The majority concedes that the district court committed legal error by requiring
A district court’s findings of subsidiary fact in Title VII disparate impact cases must normally be reviewed by an appellate court under the clearly erroneous standard. See Harriss v. Pan American World Airways, Inc.,
When a district court’s factual findings are induced by an erroneous conception of the law, however, we are not free to indulge in a deferential review. On the contrary, we must discard the clearly erroneous standard and independently review the record because it has long been acknowledged that a lower court's legal misconception can directly infect its findings. See United States v. Singer Mfg. Co.,
The majority opinion not only fails to acknowledge this principle but blatantly states that we can deferentially review the lower court’s findings:
At trial, the City produced expert testimony that its validation procedures metprofessional standards. Gonzales produced expert testimony that the procedures were professionally unacceptable. The district judge resolved this conflict of testimony in favor of the City’s expert, not only by ruling that the examinations were job related, but also by resolving every testimonial dispute between these experts in favor of the City. We will not disturb such a credibility determination.
Ante, at 1282.
This approach is an obvious application of the clearly erroneous standard and cannot be justified under the circumstances here presented. The district judge’s conclusion that the examinations were job related is entirely without conclusive force because it rendered that determination under the incorrect assumption that job relatedness could be established and the defendant’s burden met with the introduction of evidence that was merely “relevant” or “competent”. Similarly, its determination that the City’s expert was more credible cannot be insulated by a sympathetic appellate review because that conclusion was directly engendered by its erroneous assumption that the City could satisfy its burden of proof on the business necessity defense with the introduction “relevant” or “competent” evidence.
Although the normal course in such a case would be an appellate de novo review ■of the district court’s findings of fact, in view of the complexity of the evidence received and the possibility that the party’s presentation of evidence was inhibited by the lower court’s legal error, such an examination would more properly proceed at the district court level. I would, therefore, remand the case for an introduction and evaluation of evidence and a redetermination on the issue whether the City met its burden of proving job relatedness and validation.
. The proposition that “reasonable necessity” is the appropriate standard is supported by other phrases employed in Griggs and Blake. Compare Griggs v. Duke Power Co.,
. Footnote 14 of Dothard provides:
In what is perhaps a variation on their constitutional challenge to the validity of Title VII itself, see n.l, supra, the appellants contend that the establishment of the minimum height and weight standards by statute requires that they be given greater deference than is typically given private employer-established job qualifications. The relevant legislative history of the 1972 amendments extending Title VII to the States as employers does not, however, support such a result. Instead, Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike. See H.R.Rep.No.92-238, p. 17 (1971); S.Rep.No.92-415, p. 10 (1971); U.S. Code Cong. & Admin.News 1972, p. 2137. See also Schaeffer v. San Diego Yellow Cabs,462 F.2d 1002 (CA9). Thus for both private and public employers, “[t]he touchstone is business necessity,” Griggs,401 U.S. at 431 ,91 S.Ct. at 853 ; a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.
Dothard v. Rawlinson,
Even if we were to assume that the employers in Dothard failed to properly raise the public/private distinction at trial, an assumption open to serious question, see Dothard,
. The majority implies that the Blake court viewed the job relatedness standard as only one of several elements necessary to establish business necessity. The full quote, however, indicates that Blake did not erect a more exacting and multifaceted test than that required in either de Laurier or Albemarle.
. Proof of a negative in Title VII cases would not necessarily be onerous. For instance, it might not be impractical to require the employer to make a preliminary demonstration of the absence of less discriminatory alternatives under a relaxed burden of proof followed by a more thorough presentation of proof by the plaintiff. See Bernardt, Griggs v. Duke Power Co.: The Implications for Private and Public Employers, 50 Texas L.Rev. 901, 914-15 (1972). Our duty in Title VII cases, however, is to discern Congressional intent, not to speculate about the degree of difficulty in proving negative propositions. Since the statute at issue is silent, administrative considerations are instructive. See Griggs v. Duke Power Co.,
As late as 1973 the EEOC Guidelines required that the employer establish the nonexistence of less discriminatory alternatives. 29 C.F.R. § 1607.3 (1973). Although the Guidelines might have influenced some courts to place the alternatives burden on the plaintiff, the Guidelines were apparently so rigid that even the EEOC did not apply them strictly. See Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1157 & n.232 (1971). Since then, the regulations have been rewritten. Although, as a whole, the most recent guideline is somewhat equivocal, it now appears to place the alternative burden on the plaintiff:
Whenever the user is shown an alternative selection procedure with evidence of less adverse impact and substantial evidence of validity for the same job in similar circumstances, the user should investigate it to determine the appropriateness of using or validating it in accord with these guidelines.
29 C.F.R. § 1607.3 (1979). This allocation, of course, is consistent with Albemarle v. Moody,
. Although Blake cites and quotes Robinson,
. Cases requiring that the employer establish the absence of less burdensome alternatives indiscriminately merge their discussion of the two burdens. See Kirby v. Colony Furniture Co., Inc.,
. The majority quotes the Supreme Court’s recent disparate treatment decision in Texas Department of Community Affairs v. Burdine,
It is black-letter law that intent is irrelevant in disparate impact cases. International Brotherhood of Teamsters v. United States,
. In Ritter, this court assumed that it could “regard a finding as clearly erroneous not only if it is without adequate evidentiary support, but also if it was induced by an erroneous view of the law”.