Abstract
ASince the enactment of Title VII and other civil rights statutes, employee selection has been of major concern to employees, public and private employers, civil rights groups, and enforcement agencies. Employment opportunities are limited resources (particularly in periods of economic recession), and often there is intense competition for job openings or promotions. Because federal, state, and local laws prohibit discrimination on many grounds, interested groups often examine an employer’s work force composition with reference to these statutes. Of particular concern has been the degree of employment participation by women and members of minority groups as compared with that of men and nonminorities.
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Notes
National Academy of Sciences. 1982. Ability testing: Uses, consequences and controversies, part 1. Washington, DC: National Academy Press, pp. 143–144.
42 U.S.C. § 2000e, et seq. 42 U.S.C. § 2000e-2(h) provides: (h) Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer… to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin....
See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
108 S.Ct. 2777 (1988).
After this paper was submitted, the Supreme Court decided Wards Cove Packing Co. Inc. v. Atonio, 490 U.S. 642 (1989). As noted, the Court’s disposition of Wards Cove Packing addressed and adopted many of the positions set forth in the plurality opinion of Justice O’Connor in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). The Court’s Wards Cove decision, however, was the subject of intense scrutiny when Congress considered and passed the Civil Rights Act of 1991, P.L. 102-106 (1991) which in part amended Title VII to address the Wards Cove decision. Section 105 of the 1991 Act set out the burden of proof in disparate impact cases. Where a disparate impact has been proven by the plaintiff, the new Act requires the employer to “demonstrate that the challenged practice is ‘job related’ for the position in question and consistent with ‘business necessity.’” Congress, however, did not define these terms, and stated instead that they are “intended to reflect the concepts enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and in other Supreme Court decisions prior to the [Wards Cove] decision.” 137 Cong. Rec. S15276 (daily ed. Oct. 25, 1991). In actuality, Congress has referred the definition of these terms back to the courts for further litigation. Also relevant to this paper, Congress banned the practice of “race norming,” which is discussed in the text herein (see “Within Group” score conversion on the GATB). Section 106 of the Civil Rights Act of 1991 states: It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin. As a result of this new provision, the U.S. Department of Labor announced that it would continue to use the General Aptitude Test Battery (GATB), discussed in the text at pp. 298-300. The Department, however, also announced that the use of “race norming” would be discontinued in light of the Civil Rights Act of 1991. See 56 Fed. Reg. 65746 (December 18, 1991). Because the threat of litigation caused by the disparate impact of tests that are not “race normed,” most State Employment Services have stopped using the GATB to make job referrals.
A majority in Watson apparently agreed on the plaintiff’s burden of proof discussion. The Atonio majority has relaxed the employer’s burden from “proving” to introducing evidence of legitimate business reasons.
Zahorih v. Cornell University, 729 F.2d 85, 95 (2d Cir. 1984).
McRae v. General Dynamics, 774 F.2d 1171 (unpublished slip op. at 4) (8th Cir. 1985), quoted in Emmanuel v. Marsh, 628 F. Supp. 564, 569 (E.D. Mo. 1986), aff’d Paige v. Marsh, No. 86-1282 (slip op.; available on Lexis) (8th Cir. Feb. 13, 1987).
Larson A., and Larson L. 1981. Employment discrimination, Vol. 3. Matthew Bender, § 76.34 at 15-87 to 15-88.
Disparate treatment is concerned with those situations in which an employer “simply treats some people less favorably than others because of race, color, religion, sex, or national origin.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (emphasis added). See 42 U.S.C. § 2000e-2(a)(1).
Adverse impact, on the other hand, concerns specific “practices, procedures or tests,” Griggs, 401 U.S. at 430, “that are facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another,” Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). The theory is derived from Section 703(a)(2), which provides: It shall be an unlawful employment practice for an employer… to limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(2)(1981).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) requires the plaintiff to show “(i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802. These four requirements are not an inflexible formula, but “a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimi-nation.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978).
Teamsters v. United States, 431 U.S. at 324, 358 (emphasis added).
Furnco Construction Corp. v. Waters, 438 U.S. at 567, 577; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Connecticut v. Teal, 457 U.S. 440, 446 (1982).
Griggs, 401 U.S. at 431; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
Griggs, 401 U.S. at 432.
The varying formulations used by the federal courts were set out at length in the amicus curiae brief of the Solicitor General in Atonio v. Wards Cove Packing, U.S. No. 87-1387. In its brief, the government asked the Court to adopt a “single governing formulation to guide judicial interpretation” (Br. at 24) and set out the different standards used by the courts of appeals (Id. at 24 n.34): The different terms used by this court have led the courts of appeals to articulate different standards as well. See, e.g., Kinsey v. First Regional Securities, Inc., 557 F.2d 830, 837 (D.C. Cir. 1977) (citation omitted) (practice must have an “overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business”); Burwell v. Eastern Air Lines, Inc., 633 F.2d 361, 370 (4th Cir. 1980) (practice must bear a “manifest relation to the… employment”), cert. denied, 450 U.S. 965 (1981); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374, 1389 (5th Cir. 1978) (citation and emphasis omitted) (practice must “foster safety and efficiency… [and] be essential to that goal”), cert. denied, 441 U.S. 968 (1979); Chrisner v. Complete Auto Transit, Inc., 645 F.2d at 1262 (“indispensability is not the touchstone”; “practice must substantially promote the proficient operation of the business”); Aguilera v. Cook County Policy & Corrections Merit Board, 760 F.2d 844, 847 (7th Cir.) (practice must be “reasonable” or “efficient”), cert. denied, 474 U.S. 907 (1985); Kirby v. Colony Furniture Co., 613 F.2d 696, 703 (8th Cir. 1980) (practice must be shown to be necessary to safe and efficient job performance); Wambheim v. J.C. Penney Co., 705 F.2d 1492, 1495 (9th Cir. 1983) (citation omitted) (practice must have “legitimate and overriding business considerations”), cert. denied, 467 U.S. 1255 (1984); Williams v. Colorado Springs School Dist. No. 11, 641 F.2d 835, 842 (10th Cir. 1981) (“practice must be essential, the purpose compelling”).
29 C.F.R. § 1607 (1978). See also American Psychological Association, 1987, Principles for the validation and use of personnel selection procedures (Principles) and, 1985, Standards for educational and psychological testing (Standards). The Uniform Guidelines, Principles, and Standards all serve different purposes. The Uniform Guidelines presumably provide employee selection guidance that is consistent with Title VII and professional practice. The Standards, adopted by the APA and others, serve as a technical guide addressing a broad range of psychometric issues, one of which is employment. In contrast, the Principles, adopted by the Society for Industrial and Organizational Psychology, focus solely on the problems associated with test development and other employment decisions.
401 U.S. 424, 430 (1971).
Id. at 431.
Ibid. (emphasis in original).
Id. at 436 (emphasis added). Griggs, 401 U.S. at 434, stated that EEOC’s 1979 Guidelines on employee selection procedures, 35 Fed. Reg. 12,333 (1970), withdrawn, 43 Fed. Reg. 38,312 (1978) were “entitled to great deference.” Since then, courts have criticized the 1970 Guidelines, as well as their 1978 replacements, either as outdated or as unsupported by current interpretations of Title VII. See Washington v. Davis, 426 U.S. 229 (1976) (Burger, C. J., dissenting). See also report by the U.S. General Accounting Office, 1982, Uniform guidelines on employee selection should be reviewed and revised.
422 U.S. 405 (1975).
Id. at 425.
Id. at 431 (emphasis added), citing 29 C.F.R. § 1607.4(c). The Court also refers to the Standards for educational and psychological testing, note 19 above, and notes that the Uniform Guidelines “draw upon and make reference” to these Standards.
Id. at 425, citing McDonnell Douglas, 411 U.S. at 801. In a concurring opinion, Justice Blackmun summed up the present-day debate over the Uniform Guidelines when he stated: “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.” Id. at 449.
426 U.S. 229 (1976).
Id. at 247 (emphasis added) (footnote omitted).
Id. at 247 n.13.
457 U.S. 440 (1982).
Id. at 450 (emphasis in original deleted; emphasis added). The Court in Teal went on to explain its other decisions. For example, Dothard v. Rawlinson, 433 U.S. 321 (1977), found that minimum statutory height and weight requirements for correctional counselors were the sort of arbitrary barrier to equal employment opportunity for women forbidden by Title VII. The Court stated that “[a]lthough we noted in passing that women constituted 36.89 percent of the labor force and only 12.9 percent of correction counselor positions, our focus was not on this ‘bottom line.’ We focused instead on the disparate effect that the minimum height and weight standards had on applicants: classifying far more woment than men as ineligible for employment.” In Albemarle Paper Co. v. Moody, the action was remanded to allow the employer to attempt to show that the tests that he had given to his employees for promotion were job-related. The Court stated: “We did not suggest that by promoting a sufficient number of the black employees who passed the examination, the employer could avoid this burden. See also New York Transit Authority v. Beazer, 440 U.S. 568, 584 (1979) (‘A prima facie violation of the Act may be established by statistical evidence showing that an employment practice has the effect of denying members of one race equal access to employment opportunities’)” (emphasis by Court) (some citations omitted).
457 U.S. at 453-54. In doing so, the Court quoted the remarks of Senator Williams and others, as part of the legislative history of Title VII (“all men are to have an equal opportunity to be considered for a particular job”).
426 U.S. at 247; Schlei, B., and Grossman, P. 1983. Employment discrimination law, 2nd ed. Washington, D.C.: The Bureau of National Affairs, Inc., p. 11.
See, for example, Firefighters Inst. for Racial Equality v. City of St. Louis, 616 F.2d 350 (8th Cir. 1980), cert. denied, 452 U.S. 938 (1981).
Potter, E. E., and Bagby, T. R. 1986. The impact of Connecticut v. Teal on employee selection, EEO compliance and litigation. In Employee selection: Legal and practical alternatives to compliance and litigation, 2d ed. Washington, D.C.: National Foundation for the Study of Equal Employment Policy (NFSEEP), p. 178 (emphasis added).
108 S.Ct. 2777 (1988).
108 S.Ct. at 2783.
Justice Kennedy did not participate in the Watson case at all. Justice Stevens did not participate in the burden of proof discussion, arguing that because the issue had not been discussed by the court of appeals, it was not properly before the Court. Thus, the four justices signing onto the O’Connor opinion provide a “plurality”: a majority of the seven justices deciding the issue. But since Justice Kennedy demonstrated in Atonio that he agreed with the O’Connor plurality, plaintiffs now will find it much more difficult to prevail in adverse impact cases involving both objective and subjective practices.
108 S.Ct. at 2786.
Id. at 2786.
Id. at 2787 (emphasis added). One issue, of course, is what “appropriate cases” are. The Court stated that the impact theory “in principle” is “no less applicable to subjective employment criteria than to objective or standardized tests.” Id. at 2786. It may take clarification from the courts of appeals to determine whether both theories will be applied as a matter of course whenever subjective criteria are challenged, as well as what burdens of proof now apply in a disparate treatment case.
Id. at 2786.
Ibid.
There may be some confusion over whether a majority agrees with Justice O’Connor on this point, as Justice Blackmun stated in his dissenting opinion (which was joined by Justices Brennan and Marshall) that he could not join Section D of Part II of the O’Connor opinion. However, in footnote 2 of his opinion 108 S.Ct. at 2792, Justice Blackmun states: “I have no quarrel with the Court’s characterization of the plaintiff’s burden of establishing that any disparity is significant.” He then cited the pages of Section IID of the majority slip opinion setting the standards for setting a prima facie case discussed below.
Id. at 2788 (emphasis supplied). The Atonio majority agreed.
Id. The Court, in this regard, instructed readers to “Cf.” (or compare) to Teal.
108 S.Ct. at 2789.
See 108 S.Ct. at 2789 n.3. As the O’Connor opinion stated: Courts have also referred to the “standard deviation” analysis sometimes used in jury selection cases. We have emphasized the useful role that statistical methods can have in Title VII cases, but we have not suggested that any particular number of “standard deviations” can determine whether a plaintiff has made out a prima facie case in the complex area of employment discrimination... Nor has a consensus developed around any alternative mathematical standard. Instead, courts appear generally to have judged the “significance” or “substantiality” of numerical disparities on a case-by-case basis.... At least at this stage of the law’s development, we believe that such a case-by-case approach properly reflects our recognition that statistics “come in infinite variety and … their usefulness depends on all of the surrounding facts and circumstances” (citations omitted).
Id. at 2789.
Id. at 2790.
See O’Connor opinion, Id. at 2789 and n.3.
Id. at 2785 (emphasis added).
Id. at 2790, citing Albemarle, 422 U.S. at 425.
Id. at 2790 (emphasis added).
Id. at 2794.
See above.
See Blackmun opinion at 2795 and n.5.
Ibid.
Id. at 2789 n.3.
Id. at 2790.
440 U.S. 568 (1979).
108 S.Ct. at 2791 (emphasis added), citing Furnco Construction Corp. v. Waters, 438 U.S. at 578.
Id. at 2790 (O’Connor opinion).
Ibid.
In this regard Justice O’Connor cited Zahorik v. Cornell University 729 F.2d 85, 96 (2d Cir. 1984), which upheld the university’s tradition of using accomplishments and skills in scholarship in selecting tenured faculty. See O’Connor opinion, 108 S.Ct. at 2791.
Id. at 2787-88, citing 42 U.S.C. § 2000e-2(j) (emphasis added).
Ibid, at 2788.
Ibid, (emphasis added).
Positive affirmative action programs are discussed fully in Opportunity 2000-Creative affirmative action strategies for a changing workforce. Washington, D.C.: U.S. Department of Labor, September 1988.
United Steelworkers v. Weber, 443 U.S. 193 (1979).
443 U.S. at 198.
Id. at 201.
Id. at 199 and n.1.
Section 703(j) of Title VII, 42 U.S.C. 2000e-2(j) provides that Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area (emphasis added).
The majority also stated that it was unnecessary to consider the argument that the plan was justified because Kaiser feared that black employees would sue under Title VII if the AAP was not adopted. Id. at 208-209 and n. 9 (citations omitted) (emphasis added). Justice Rehnquist, joined by Chief Justice Burger, wrote a lengthy dissent in Weber arguing that Title VII does not require or permit racial preferences of the type contained in the plan.
Johnson v. Transportation Agency, Santa Clara County, California, 107 S.Ct. 1442 (1987).
Id. at 1446.
Ibid.
Id. at 1453 n.11 (emphasis added).
Id. at 1453 n.11.
Id. at 1451.
Ibid citing Weber, 443 U.S. at 209.
107 S.Ct. at 1452.
Id. at 1454.
Id. at 1461.
Ibid.
Id. at 1462, citing majority opinion (at 107 S.Ct. at 1452 and Justice O’Connor’s concurring opinion in Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986)).
Wygant, 106 S.Ct. at 1856. One perplexing question has been whether private and public employers are governed by different standards, since public employers are subject to the U.S. Constitution as well as Title VII. As noted in McDowell, Affirmative action after the Johnson decision: Practical guidance for planning and compliance, pp. 61-64 (NFSEEP 1987), earlier affirmative action cases discussed the dichotomy between public employers (subject to the Constitution), and private sector employers (subject to Title VII). Id. at 2-3. As noted in that monograph: The Johnson and Wygant decisions, however, now have established essentially the same standards for public and private employers, with one significant difference; under Title VII, the underrepresentation supporting the AAP can be less than required to establish a prima facie case of race or sex discrimination; but under the Constitution, the preference probably has to be supported by statistics which would establish that the plan was designed to remedy past discrimination by the particular governmental unit involved.... [W?hile the Court has drawn this distinction, it has yet to illustrate how it is to be used in practical application. Id. at 61-62.
106 S.Ct. at 1856.
Because Justice O’Connor’s statistical methodology of comparing the employer’s work force statistics with the relevant availability figures for qualified minorities or women is the approach followed by most major employers, the difference between her view and Justice Brennan’s may not be that significant in practical effect. In any event, Justice O’Connor’s analysis of the facts is consistent with the findings of the majority opinion that the plan was applied flexibly, that short-term goals were realistic, that sex was only one factor considered, and that Diane Joyce was qualified for the job.
108 S.Ct. at 2791, citing Beazer at 587 n.31 and Washington v. Davis at 250.
See, for example, Rose, 1968, Subjective employment practices: Does the Discriminatory impact analysis apply? San Diego Law Review 25: 63, 90.
108 S.Ct. at 2791.
It is clear that it is no defense for an employer merely to argue that its practices were subjective. For example, in Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988), the court rejected the city’s argument that a Hispanic police officer was not promoted because he lacked interpersonal skills. As the court noted, this alleged performance deficiency was “not included in his performance evaluations.” The city argued unconvincingly that such an evaluation would be a poor management practice that would “erode the officer’s self esteem.” Ibid. Moreover, the city had promoted a white officer over the plaintiff, even though the white officer had lower test scores and his evaluation indicated a lack of interpersonal skills. Also, if members of an employee selection panel can “manipulate the criteria and the weighting system in order to eliminate certain candidates,” then the system is more likely to be examined by the court for illegal discrimination. See Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1149 (9th Cir. 1982). See also Moreley v. New England Telephone Company, 47 FEP Cases 917, 923 (D. Mass. 1987) (plaintiffs case was assisted by the fact that the promotional procedure was “entirely subjective, contain[ed] virtually no safeguards against discrimination, and result[ed] in the promotion of few women....”); and Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972) (because of lack of standards for promotions and transfers, the decisions made by foremen could not be used to establish the business necessity of the employer’s selection procedures).
30 Fed. Reg. 12319 (1965), as amended by 32 Fed. Reg. 14303 (1967) and 43 Fed. Reg. 46501 (1978).
41 C.F.R. § 60-2.10.
Janowiak v. Corporate City of South Bend, 836 F.2d 1034 (7th Cir. 1988), cert. denied, 109 S.Ct. at 1310 (1989). Although the case raises constitutional (not Title VII) issues, the resolution will be important for all employers, especially if Justice O’Connor’s view (merging the Title VII and constitutional standards) prevails. Determining whether a sufficient manifest imbalance exists in any particular case may be difficult to determine, as illustrated by the decision in Hammon v. Barry, 826 F.2d 73 (D.C. Cir. 1987); pet. for rehearing (en banc) granted, 833 F.2d 367; pet. for rehearing en banc vacated, 841 F.2d 427, where the majority and dissenting opinions disagreed over whether there was an imbalance between the percentages of blacks in the fire department as compared to the relevant labor market area. Judge Starr’s majority opinion in Hammon, however, seems to have incorrectly stated that requiring a finding of discrimination to support a preference under Title VII is “fully in keeping” with Johnson’s holding that there must be a manifest imbalance in a traditionally segregated job category before an employer may engage in preferential hiring. 826 F.2d at 81. Compare Judge Mikva’s dissent (at 826 F.2d at 88-92), which argues that Johnson does not require such a showing of past discrimination. The decisions in this case, and the full court’s reversal of its decision to rehear the case en banc, show the difficulty the courts have had in sorting out the Supreme Court’s affirmative action standards.
Higgins v. City of Valle?o, 823 F.2d 351 (9th Cir. 1987), cert. denied, 109 S.Ct. at 1310 (1989).
See Lucas v. Dole, 835 F.2d 532 (4th Cir. 1987) (district court erroneously ruled that white claimant failed to establish a prima facie case of reverse discrimination). The D.C. Circuit, in applying its reverse discrimination standard, has considered the promotion of a less qualified employee, the use of subjective criteria, and irregular acts of favoritism toward minority employees. See Bishopp v. District of Columbia, 788 F.2d 781 (D.C. Cir. 1986); Lanphear v. Prokop, 703 F.2d 1311 (D.C. Cir. 1983); Machakos v. Meese, 647 F. Supp. 1253 (D. D.C. 1986). But compare Richards v. Board of Education, 44 FEP Cases 1166 (S.D. N.Y. 1987) (after Johnson, a board of education could not avoid liability by refusing to promote black over a white who placed first because such a promotion would be reverse discrimination).
108 S.Ct. at 2791.
812 F.2d 1125 (9th Cir. 1987).
Id. at 1131.
Id. at 1132. See McKenzie v. Kennickell, 825 F.2d 429 (D.C. Cir. 1987). The D.C. Circuit ruled that the district court inadequately considered the interests of white third parties when it directed the Government Printing Office to promote a class member because of the court’s concern that promotional goals within a remedial order would not be met.
Id. at 1131.
812 F.2d 52 (2d Cir.), cert. denied, 108 S.Ct. 52 (1987).
Id. at 62. But see Higgins v. City of Vallejo, (note 99, above), in which the court upheld a revision of test scores because race was only one factor considered by the employer.
The GATB is a highly validated test battery composed of eight paper-and-pencil tests and four apparatus tests designed to measure nine aptitudes that are considered to be important for successful job performance. The aptitudes are (1) general learning ability; (2) verbal aptitude; (3) numerical aptitude; (4) spatial aptitude; (5) form perception; (6) clerical perception; (7) motor coordination; (8) finger dexterity; and (9) manual dexterity. Since 1947, USES has produced over 500 studies documenting the extent to which the GATB predicts future job performance, making it one of the most validated test batteries in existence. To date, there have been no adverse court rulings regarding its validity. Before the application of validity generalization concepts to the battery, the GATB covered about 400 jobs.
November 10, 1986, letter from William Bradford Reynolds, then Assistant Attorney General, Civil Rights Division, to Richard Gilliland, Director, U.S. Employment Service, U.S. Department of Labor. It remains to be seen whether the Department under President George Bush will continue to advance the arguments discussed below.
Specifically, the Department urged that this race-based scoring system “illegally advanced the interests of one group at the expense of another in violation of Wygant and Section 703(j).” Plaintiff-oriented groups, such as the Lawyers’ Committee for Civil Rights Under Law, strongly contest the Department’s arguments. As a result of this debate, in January 1987 the Departments of Justice and Labor reached an agreement that the validity generalization program could be continued, but not expanded, to additional state offices, for at least one year pending a report by the National Academy of Sciences.
Interim Report at 22.
Post-Johnson case authority on test score adjustment is split. Compare Higgins v. City of Vallejo, 823 F.2d at 351 (score adjustment allowed) with San Francisco Police Officers’ Association v. San Francisco, 812 F.2d 1125 (9th Cir. 1987) (rescoring illegal), and Berkman v. City of New York, 812 F.2d 52 (2d Cir. 1987), pet. for cert. denied, 108 S.Ct. 146 (1987) (rescoring struck down). See n.100 above and accompanying text.
108 S.Ct. at 2795.
Id. at 2790.
Id. at 2791.
June 30, 1988, letter from Robert J. Delahunty, Special Assistant to the Attorney General, Civil Rights Division, to Alexandra K. Wigdor, Study Director, Committee on the General Aptitude Test Battery, National Research Council at 10. Page numbers refer to Remarks attached to the letter.
Ibid.
According to the letter, “[I]n defending the job-relatedness of GATB-based referrals, it is not required to introduce a formal’ validation study’.... Rather, it suffices to ‘produc[e] evidence that [the] employment practice… [is] based on legitimate business reasons.’” Id. at 13 n.15 (citations to Watson omitted). The letter goes on to state that “[t]here is, of course, already abundant evidence to show that the raw-score, top-down referral method meets this standard. See the letter of Dr. James Sharf of the Office of Personnel Management to Dr. John A. Hartigan, Chair, Committee on the General Aptitude Test Battery, dated August 10, 1987.”
Id. at 13-14 (footnote and citation omitted). See also Pretrial Memorandum of the Justice Department in U.S. v. City of Buffalo (C.A. No. 1974-1975) (W.D. N.Y.).
Report at 26. In its report, however, the committee indicates it is considering a number of compromise referral and reporting rules. For example, employers could be provided both raw and within-group scores and could make their own hiring determinations based on the data provided. This would allow employers to “make selection decisions on the basis of relative performance within groups (to meet affirmative action goals), on the basis of absolute performance across groups (to maximize the job performance of the selected group), or on the basis of a combination of these score types according to their needs.” Report at 48-49.
See United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); Washington v. Electrical Joint Apprenticeship and Training Committee of Northern Indiana, 845 F.2d 710, 713-14 (7th Cir. 1988); and Benzies v. Illinois Dept. of Mental Health ∓ Developmental Disabilities, 810 F.2d 146, 148 (7th Cir. 1987).
108 S.Ct. at 2791, citing Furnco, 438 U.S. at 578.
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McDowell, D.S., Dodge, G.E. (1994). Employee Selection and Title VII of the Civil Rights Act: The Legal Debate Surrounding Selection Criteria, Validation, and Affirmative Action . In: Wing, L.C., Gifford, B.R. (eds) Policy Issues in Employment Testing. Evaluation in Education and Human Services, vol 35. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-2202-3_6
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