U.S. Supreme Court Watson v. Fort Worth Bank & Trust, 487
U.S. 977 (1988) Watson v. Fort Worth Bank &
Trust No. 86-6139 Argued January 20,
1988 Decided June 29, 1988 487
U.S. 977 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Petitioner employee, who is black, was rejected in favor of
white applicants for four promotions to supervisory positions in
respondent bank, which had not developed precise and formal
selection criteria for the positions, but instead relied on the
subjective judgment of white supervisors who were acquainted with
the candidates and with the nature of the jobs. After exhausting
her administrative remedies, petitioner filed suit in Federal
District Court, alleging, inter alia, that respondent's
promotion policies had unlawfully discriminated against blacks
generally and her personally in violation of Title VII of the Civil
Rights Act of 1964. As to petitioner's individual claim, the court
held that she had not met her burden of proof under the
discriminatory treatment evidentiary standard and, for this and
other reasons, dismissed the action. The Court of Appeals affirmed
in relevant part, rejecting petitioner's contention that the
District Court erred in failing to apply "disparate impact"
analysis to her promotion claims. The court held that, under its
precedent, a Title VII challenge to a discretionary or subjective
promotion system can only be analyzed under the disparate treatment
model. Held: The judgment is vacated, and the case is
remanded.

															798 F.2d 791, vacated and remanded.

															JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I, II-A, II-B, and III, concluding that disparate impact
analysis may be applied to a subjective or discretionary promotion
system. Pp. 487 U. S.
985 -991, 487 U. S.
999 -1000.

															(a) Each of this Court's decisions applying disparate impact
analysis -- under which facially neutral employment practices,
adopted without a deliberately discriminatory motive, may in
operation be functionally equivalent to illegal intentional
discrimination -- involved standardized tests or criteria, such as
written aptitude tests or high school diploma requirements, see, e.g., Griggs v. Duke Power Co., 401 U.
S. 424 , and the Court has consistently used disparate
treatment theory, in which proof of intent to discriminate is
required, to review hiring or promotion decisions that were based
on the exercise of personal judgment or the application of
subjective criteria, see, e.g., McDonnell Douglas Corp. v.
Green, 411 U. S. 792 .
Until today, the Court has never addressed the Page 487 U. S. 978 question whether disparate impact analysis may be applied to
subjective employment criteria. Pp. 487 U. S.
985 -989.

															(b) The reasons supporting the use of disparate impact analysis
apply to subjective employment practices. That analysis might
effectively be abolished if it were confined to objective,
standardized selection practices, since an employer could insulate
itself from liability under Griggs and its progeny simply
by combining such practices with a subjective component, such as a
brief interview, in a system that refrained from making the
objective tests absolutely determinative, and could thereby remain
free to give those tests almost as much weight as it chose without
risking a disparate impact challenge. Moreover, disparate impact
analysis is, in principle, no less applicable to subjective
employment criteria than to objective or standardized tests, since,
in either case, a facially neutral practice, adopted without
discriminatory intent, may have effects that are indistinguishable
from intentionally discriminatory practices. Simply because no
inference of discriminatory intent can be drawn from the customary
and reasonable practice in some businesses of leaving promotion
decisions to the unchecked discretion of the lower level
supervisors most familiar with the jobs and candidates, it does not
follow that these supervisors always act without discriminatory
intent. Even if it is assumed that discrimination by individual
supervisors can be adequately policed through disparate treatment
analysis, that analysis would not solve the problem created by
subconscious stereotypes and prejudices that lead to conduct
prohibited by Title VII. Pp. 487 U. S.
989 -991.

															(c) Since neither the District Court nor the Court of Appeals
has evaluated the statistical evidence to determine whether
petitioner made out a prima facie case of discrimination
under disparate impact theory, the case must be remanded. Pp. 487 U. S.
999 -1000.

															JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE SCALIA, concluded in Parts II-C and II-D that:

															1. The extension of disparate impact analysis to subjective
employment practices could increase the risk that, in order to
avoid liability, employers will adopt surreptitious numerical goals
and quotas in the belief that, since disparate impact analysis
inevitably focuses on statistical evidence, which cannot
practically be rebutted by the kind of counterevidence typically
used to defend objective criteria, the threat of ruinous litigation
requires steps to ensure that no plaintiff can establish a prima facie case under disparate impact theory. That
result would be contrary to Congress' clearly expressed intent in
42 U.S.C. § 2000(e)-2(j) that no employer shall be required to
grant preferential treatment to any protected individual or group
because of a numerical imbalance in its workforce. Pp. 487 U. S.
991 -993.

															2. However, the application of disparate impact theory to
subjective employment criteria should not have any chilling effect
on legitimate Page 487 U. S. 979 business practices, since the high standards of proof applicable
in such cases operate to constrain the theory within its proper
bounds and provide adequate safeguards against the danger that
quotas or preferential treatment will be adopted by employers. Pp. 487 U. S.
993 -999.

															(a) In establishing a prima facie case when subjective
selection criteria are at issue, the plaintiff may have difficulty
satisfying the initial burden of identifying the specific
employment practices that are allegedly responsible for any
observed statistical disparity, especially where the employer has
combined the subjective criteria with more rigid standardized rules
or tests. Moreover, the plaintiff's statistical evidence must be
sufficiently substantial to prove that the practice in question has
caused the exclusion of job or promotion applicants because of
their membership in a protected group, and the defendant is free to
attack the probative weight of that evidence, to point out
fallacies or deficiencies in the plaintiff's data or statistical
techniques, and to adduce countervailing evidence of its own. Pp. 487 U. S.
994 -997.

															(b) The nature of the "business necessity" or "job-relatedness"
defense -- under which the defendant has a burden of producing
evidence after the plaintiff has made out a prima facie case -- also constrains the application of the disparate impact
theory. Employers are not required, even when defending
standardized or objective tests, to introduce formal "validation
studies" showing that particular criteria predict actual on-the-job
performance. In the context of subjective or discretionary
decisions, the employer will often find it easier than in the case
of standardized tests to produce evidence of a "manifest
relationship to the employment in question." Many jobs, for example
those involving managerial responsibilities, require personal
qualities that are not amenable to standardized testing, but are
nevertheless job-related. In evaluating claims that discretionary
practices are insufficiently related to legitimate business
purposes, courts are generally less competent than employers to
restructure business practices, and therefore should not attempt to
do so. Pp. 487 U. S.
997 -999.

															JUSTICE BLACKMUN, joined by JUSTICE BRENNAN and JUSTICE
MARSHALL, agreeing that disparate impact analysis may be applied to
claims of discrimination caused by subjective or discretionary
selection processes, concluded that:

															1. In the disparate- impact context, a plaintiff who
successfully establishes a prima facie case shifts the
burden of proof, not production, to the defendant to
establish that the employment practice in question is a business
necessity. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 ; Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 ;
and Griggs v. Duke Power Co., 401 U.
S. 424 , 401 U. S. 432 .
The plurality's assertion to the contrary mimics the allocation of
burdens this Court has established in the very different context of
individual disparate treatment claims. Unlike a Page 487 U. S. 980 disparate treatment claim of intentional discrimination, which a prima facie case establishes only by inference, the
disparate impact caused by an employment practice is directly established by the numerical disparity shown by
the prima facie case, and the employer can avoid liability
only if it can prove that the discriminatory effect is justified.
To be justified as a business necessity, a practice must
directly relate to a prospective employee's ability to perform the
job effectively; i.e., it must be necessary to fulfill
legitimate business requirements. Pp. 487 U. S.
1000 -1006.

															2. The plurality's suggestion that the employer will often find
it easier to produce evidence of job-relatedness for a subjective
factor than for standardized tests may prove misleading, since the
employer still has the obligation to persuade the court of
job-relatedness through the introduction of relevant evidence. Pp. 487 U. S.
1006 -1011.

															(a) The fact that the formal validation techniques endorsed by
the Equal Employment Opportunity Commission's (EEOC) Uniform
Guidelines on Employee Selection Procedures cannot always be used
to prove the job-relatedness of subjective selection processes does
not free an employer from its burden of proof. The link between
such processes and job performance may, depending on the type and
size of the business and the nature of the particular job, be
established by a variety of methods, including the results of
studies, expert testimony, and prior successful experience.
Although common sense plays a part in the assessment, a reviewing
court may not rely on its own, or an employer's, sense of what is
"normal" as a substitute for a neutral assessment of the evidence.
Pp. 487 U. S.
1006 -1008.

															(b) The employer's burden of justifying an employment practice
that produces a disparate impact is not lessened simply because the
practice relies upon subjective assessments. Establishing a general
rule allowing an employer to escape liability simply by
articulating vague, inoffensive-sounding subjective criteria would
disserve Title VII's goal of eradicating employment discrimination
by encouraging employers to abandon attempts to construct neutral
selection mechanisms in favor of broad generalities. While
subjective criteria will sometimes pose difficult problems for
courts charged with assessing job-relatedness, requiring the
development of a greater factual record, and, perhaps, the exercise
of a greater degree of judgment, that does not dictate that
subjective selection processes generally are to be accepted at face
value. Pp. 487 U. S.
1008 -1011.

															JUSTICE STEVENS, agreeing that the racially adverse impact of an
employer's practice of simply committing employment decisions to
the unchecked discretion of a white supervisory corps is subject to
the test of Griggs v. Duke Power Co., 401 U.
S. 424 , concluded that, since cases Page 487 U. S. 981 involving such practices will include too many variables to be
adequately considered in a general context, further discussion of
evidentiary standards should be postponed until after the District
Court has made appropriate findings concerning petitioner's prima facie evidence of disparate impact and respondent's
explanation for its subjective practice. P. 487 U. S.
1011 .

															O'CONNOR, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II-A, II-B, and
III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL,
BLACKMUN, and SCALIA, JJ., joined, and an opinion with respect to
Parts II-C and II-D in which REHNQUIST, C.J., and WHITE and SCALIA,
JJ., joined. BLACKMUN, J., filed an opinion concurring in part and
concurring in the judgment, in which BRENNAN and MARSHALL, JJ.,
joined, post, p. 487 U. S.
1000 . STEVENS, J., filed an opinion concurring in the
judgment, post, p. 487 U. S.
1011 . KENNEDY, J., took no part in the consideration or
decision of the case. Page 487 U. S. 982 JUSTICE O'CONNOR announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II-A,
II-B, and III, and an opinion with respect to parts II-C and II-D,
in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA
join.

															This case requires us to decide what evidentiary standards
should be applied under Title VII of the Civil Rights Act of 1964,
78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., in
determining whether an employer's practice of committing promotion
decisions to the subjective discretion of supervisory employees has
led to illegal discrimination. I Petitioner Clara Watson, who is black, was hired by respondent
Fort Worth Bank and Trust (the Bank) as a proof operator in August,
1973. In January, 1976, Watson was promoted to a position as teller
in the Bank's drive-in facility. In February, 1980, she sought to
become supervisor of the tellers in the main lobby; a white male,
however, was selected for this job. Watson then sought a position
as supervisor of the drive-in bank, but this position was given to
a white female. In February, 1981, after Watson had served for
about a year as a commercial teller in the Bank's main lobby, and
informally as assistant to the supervisor of tellers, the man
holding that position was promoted. Watson applied for the vacancy,
but the white female who was the supervisor of the drive-in bank
was selected instead. Watson then applied for the vacancy created
at the drive-in; a white male was selected for that job. The Bank,
which has about 80 employees, had not developed precise and formal
criteria for evaluating candidates for the positions for which
Watson unsuccessfully applied. It relied instead on the subjective
judgment of supervisors who were acquainted with the candidates,
and with the nature of the jobs to be filled. All the supervisors
involved in denying Watson the four promotions at issue were
white. Page 487 U. S. 983 Watson filed a discrimination charge with the Equal Employment
Opportunity Commission (EEOC). After exhausting her administrative
remedies, she filed this lawsuit in the United States District
Court for the Northern District of Texas. She alleged that the Bank
had unlawfully discriminated against blacks in hiring,
compensation, initial placement, promotions, terminations, and
other terms and conditions of employment. On Watson's motion under
Federal Rule of Civil Procedure 23, the District Court certified a
class consisting of

															"blacks who applied to or were employed by [respondent] on or
after October 21, 1979, or who may submit employment applications
to [respondent] in the future."

															App.190. The District Court later decertified this broad class
because it concluded, in light of the evidence presented at trial,
that there was not a common question of law or fact uniting the
groups of applicants and employees. After splitting the class along
this line, the court found that the class of black employees did
not meet the numerosity requirement of Rule 23(a); accordingly,
this subclass was decertified. The court also concluded that Watson
was not an adequate representative of the applicant class, because
her promotion claims were not typical of the claims of the members
of that group. Because Watson had proceeded zealously on behalf of
the job applicants, however, the court went on to address the
merits of their claims. It concluded that Watson had failed to
establish a prima facie case of racial discrimination in
hiring: the percentage of blacks in the Bank's workforce
approximated the percentage of blacks in the metropolitan area
where the Bank is located. App.199-202.

															The District Court addressed Watson's individual claims under
the evidentiary standards that apply in a discriminatory treatment
case. See McDonnell Douglas Corp. v. Green, 411 U.
S. 792 (1973), and Texas Dept. of Community Affairs
v. Burdine, 450 U. S. 248 (1981). It concluded, on the evidence presented at trial, that
Watson had established a prima facie case of employment
discrimination, but that the Page 487 U. S. 984 Bank had met its rebuttal burden by presenting legitimate and
nondiscriminatory reasons for each of the challenged promotion
decisions. The court also concluded that Watson had failed to show
that these reasons were pretexts for racial discrimination.
Accordingly, the action was dismissed. App.195-197, 203.

															A divided panel of the United States Court of Appeals for the
Fifth Circuit affirmed in part. 798 F.2d 791 (1986). The majority
concluded that there was no abuse of discretion in the District
Court's class decertification decisions. In order to avoid unfair
prejudice to members of the class of black job applicants, however,
the Court of Appeals vacated the portion of the judgment affecting
them and remanded with instructions to dismiss those claims without
prejudice. The majority affirmed the District Court's conclusion
that Watson had failed to prove her claim of racial discrimination
under the standards set out in McDonnell Douglas, supra, and Burdine, supra. [ Footnote 1 ]

															Watson argued that the District Court had erred in failing to
apply "disparate impact" analysis to her claims of discrimination
in promotion. Relying on Fifth Circuit precedent, the majority of
the Court of Appeals panel held that

															"a Title VII challenge to an allegedly discretionary promotion
system is properly analyzed under the disparate treatment model,
rather than the disparate impact model."

															798 F.2d at 797. Other Courts of Appeals have held that
disparate impact analysis may be applied to hiring or promotion
systems that involve the use of "discretionary" or "subjective"
criteria. See, e.g., Atonio v. Wards Cove Packing Co., 810
F.2d 1477 (CA9) (en banc), on return to panel, 827
F.2d Page 487 U. S. 985 439 (1987), cert denied, No. 87-1388, 485 U.S. 989
(1988), cert. pending, No. 87-1387; Griffin v.
Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). Cf. Segar v.
Smith, 238 U.S.App.D.C. 103, 738 F.2d 1249 (1984), cert.
denied, 471 U.S. 1115 (1985). We granted certiorari to resolve
the conflict. 483 U.S. 1004 (1987). II A Section 703 of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2, provides:

															"(a) It shall be an unlawful employment practice for an employer
-- "

															"(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin; or"

															"(2) 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."

															" * * * *" "(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. . .
."

															Several of our decisions have dealt with the evidentiary
standards that apply when an individual alleges that an employer
has treated that particular person less favorably than Page 487 U. S. 986 others because of the plaintiff's race, color, religion, sex, or
national origin. In such "disparate treatment" cases, which involve
"the most easily understood type of discrimination," Teamsters
v. United States, 431 U. S. 324 , 431 U. S. 335 ,
n. 15 (1977), the plaintiff is required to prove that the defendant
had a discriminatory intent or motive. In order to facilitate the
orderly consideration of relevant evidence, we have devised a
series of shifting evidentiary burdens that are "intended
progressively to sharpen the inquiry into the elusive factual
question of intentional discrimination." Texas Dept. of
Community Affairs v. Burdine, 450 U.S. at 450 U. S. 255 ,
n. 8. Under that scheme, a prima facie case is ordinarily
established by proof that the employer, after having rejected the
plaintiff's application for a job or promotion, continued to seek
applicants with qualifications similar to the plaintiff's. Id. at 450 U. S. 253 ,
and n. 6. The burden of proving a prima facie case is "not
onerous," id. at 450 U. S. 253 ,
and the employer in turn may rebut it simply by producing some
evidence that it had legitimate, nondiscriminatory reasons for the
decision. Id. at 450 U. S.
254 -255. If the defendant carries this burden of
production, the plaintiff must prove by a preponderance of all the
evidence in the case that the legitimate reasons offered by the
defendant were a pretext for discrimination. Id. at 450 U. S. 253 , 450 U. S. 255 ,
n. 10. We have cautioned that these shifting burdens are meant only
to aid courts and litigants in arranging the presentation of
evidence:

															"The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff." Id. at 250 U. S. 253 . See also United States Postal Service Bd. of Governors v.
Aikens, 460 U. S. 711 , 460 U. S. 715 (1983).

															In Griggs v. Duke Power Co., 401 U.
S. 424 (1971), this Court held that a plaintiff need not
necessarily prove intentional discrimination in order to establish
that an employer has violated § 703. In certain cases, facially
neutral employment practices that have significant adverse effects
on protected groups have been held to violate the Act without
proof Page 487 U. S. 987 that the employer adopted those practices with a discriminatory
intent. The factual issues and the character of the evidence are
inevitably somewhat different when the plaintiff is exempted from
the need to prove intentional discrimination. See Burdine,
supra, at 450 U. S. 252 ,
n. 5; see also United States Postal Service Bd. of Governors v.
Aikens, supra, at 460 U. S. 713 ,
n. l; McDonnell Douglas , 411 U.S. at 411 U. S. 802 ,
n. 14; Teamsters, supra, at 431 U. S.
335 -336, n. 15. The evidence in these "disparate impact"
cases usually focuses on statistical disparities, rather than
specific incidents, and on competing explanations for those
disparities.

															The distinguishing features of the factual issues that typically
dominate in disparate impact cases do not imply that the ultimate
legal issue is different than in cases where disparate treatment
analysis is used. See, e.g., Washington v. Davis, 426 U. S. 229 , 426 U. S.
253 -254 (1976) (STEVENS, J., concurring). Nor do we
think it is appropriate to hold a defendant liable for
unintentional discrimination on the basis of less evidence than is
required to prove intentional discrimination. Rather, the necessary
premise of the disparate impact approach is that some employment
practices, adopted without a deliberately discriminatory motive,
may in operation be functionally equivalent to intentional
discrimination.

															Perhaps the most obvious examples of such functional equivalence
have been found where facially neutral job requirements necessarily
operated to perpetuate the effects of intentional discrimination
that occurred before Title VII was enacted. In Griggs itself, for example, the employer had a history of overt racial
discrimination that predated the enactment of the Civil Rights Act
of 1964. 401 U.S. at 401 U. S.
426 -428. Such conduct had apparently ceased thereafter,
but the employer continued to follow employment policies that had
"a markedly disproportionate" adverse effect on blacks. Id. at 401 U. S.
428 -429. Cf. Teamsters, supra, at 431 U. S. 349 ,
and n. 32. The Griggs Court found that these policies,
which involved the use of general aptitude tests and a high school
diploma Page 487 U. S. 988 requirement, were not demonstrably related to the jobs for which
they were used. 401 U.S. at 401 U. S.
431 -432. Believing that diplomas and tests could become
"masters of reality," id. at 401 U. S. 433 ,
which would perpetuate the effects of pre-Act discrimination, the
Court concluded that such practices could not be defended simply on
the basis of their facial neutrality, or on the basis of the
employer's lack of discriminatory intent.

															This Court has repeatedly reaffirmed the principle that some
facially neutral employment practices may violate Title VII even in
the absence of a demonstrated discriminatory intent. We have not
limited this principle to cases in which the challenged practice
served to perpetuate the effects of pre-Act intentional
discrimination. Each of our subsequent decisions, however, like Griggs itself, involved standardized employment tests or
criteria. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975) (written aptitude tests); Washington v. Davis,
supra, (written test of verbal skills); Dothard v.
Rawlinson, 433 U. S. 321 (1977) (height and weight requirements); New York City Transit
Authority v. Beazer, 440 U. S. 568 (1979) (rule against employing drug addicts); Connecticut v.
Teal, 457 U. S. 440 (1982) (written examination). In contrast, we have consistently
used conventional disparate treatment theory, in which proof of
intent to discriminate is required, to review hiring and promotion
decisions that were based on the exercise of personal judgment or
the application of inherently subjective criteria. See, e.g.,
McDonnell Douglas Corp. v. Green, supra, (discretionary
decision not to rehire individual who engaged in criminal acts
against employer while laid off); Furnco Construction Corp. v.
Waters, 438 U. S. 567 (1978) (hiring decisions based on personal knowledge of candidates
and recommendations); Texas Dept. of Community Affairs v.
Burdine, supra, (discretionary decision to fire individual who
was said not to get along with coworkers); United States Postal
Service Page 487 U. S.
989 Bd. of Governors v. Aikens, 460 U.S. at 460 U. S. 715 (discretionary promotion decision).

															Our decisions have not addressed the question whether disparate
impact analysis may be applied to cases in which subjective
criteria are used to make employment decisions. As noted above, the
Courts of Appeals are in conflict on the issue. In order to resolve
this conflict, we must determine whether the reasons that support
the use of disparate impact analysis apply to subjective employment
practices, and whether such analysis can be applied in this new
context under workable evidentiary standards. B The parties present us with stark and uninviting alternatives.
Petitioner contends that subjective selection methods are at least
as likely to have discriminatory effects as are the kind of
objective tests at issue in Griggs and our other disparate
impact cases. Furthermore, she argues, if disparate impact analysis
is confined to objective tests, employers will be able to
substitute subjective criteria having substantially identical
effects, and Griggs will become a dead letter. Respondent
and the United States (appearing as amicus curiae ) argue
that conventional disparate treatment analysis is adequate to
accomplish Congress' purpose in enacting Title VII. They also argue
that subjective selection practices would be so impossibly
difficult to defend under disparate impact analysis that employers
would be forced to adopt numerical quotas in order to avoid
liability.

															We are persuaded that our decisions in Griggs and
succeeding cases could largely be nullified if disparate impact
analysis were applied only to standardized selection practices.
However one might distinguish "subjective" from "objective"
criteria, it is apparent that selection systems that combine both
types would generally have to be considered subjective in nature.
Thus, for example, if the employer in Griggs had
consistently preferred applicants who had a high school diploma Page 487 U. S. 990 and who passed the company's general aptitude test, its
selection system could nonetheless have been considered
"subjective" if it also included brief interviews with the
candidates. So long as an employer refrained from making
standardized criteria absolutely determinative, it would remain
free to give such tests almost as much weight as it chose without
risking a disparate impact challenge. If we announced a rule that
allowed employers so easily to insulate themselves from liability
under Griggs, disparate impact analysis might effectively
be abolished.

															We are also persuaded that disparate impact analysis is in
principle no less applicable to subjective employment criteria than
to objective or standardized tests. In either case, a facially
neutral practice, adopted without discriminatory intent, may have
effects that are indistinguishable from intentionally
discriminatory practices. It is true, to be sure, that an
employer's policy of leaving promotion decisions to the unchecked
discretion of lower level supervisors should itself raise no
inference of discriminatory conduct. Especially in relatively small
businesses like respondent's, it may be customary and quite
reasonable simply to delegate employment decisions to those
employees who are most familiar with the jobs to be filled and with
the candidates for those jobs. It does not follow, however, that
the particular supervisors to whom this discretion is delegated
always act without discriminatory intent. Furthermore, even if one
assumed that any such discrimination can be adequately policed
through disparate treatment analysis, the problem of subconscious
stereotypes and prejudices would remain. In this case, for example,
petitioner was apparently told at one point that the teller
position was a big responsibility, with "a lot of money . . . for
blacks to have to count." App. 7. Such remarks may not prove
discriminatory intent, but they do suggest a lingering form of the
problem that Title VII was enacted to combat. If an employer's
undisciplined system of subjective decisionmaking has precisely the
same effects as Page 487 U. S. 991 a system pervaded by impermissible intentional discrimination,
it is difficult to see why Title VII's proscription against
discriminatory actions should not apply. In both circumstances, the
employer's practices may be said to "adversely affect [an
individual's] status as an employee, because of such individual's
race, color, religion, sex, or national origin." 42 U.S.C. §
2000e-2(a)(2). We conclude, accordingly, that subjective or
discretionary employment practices may be analyzed under the
disparate impact approach in appropriate cases. C Having decided that disparate impact analysis may in principle
be applied to subjective as well as to objective practices, we turn
to the evidentiary standards that should apply in such cases. It is
here that the concerns raised by respondent have their greatest
force. Respondent contends that a plaintiff may establish a prima facie case of disparate impact through the use of
bare statistics, and that the defendant can rebut this statistical
showing only by justifying the challenged practice in terms of
"business necessity," Griggs, 401 U.S. at 401 U. S. 431 ,
or "job-relatedness," Albemarle Paper Co., 422 U.S. at 422 U. S. 426 .
Standardized tests and criteria, like those at issue in our
previous disparate impact cases, can often be justified through
formal "validation studies," which seek to determine whether
discrete selection criteria predict actual on-the-job performance. See generally id. at 422 U. S.
429 -436. Respondent warns, however, that "validating"
subjective selection criteria in this way is impracticable. Some
qualities -- for example, common sense, good judgment, originality,
ambition, loyalty, and tact -- cannot be measured accurately
through standardized testing techniques. Moreover, success at many
jobs in which such qualities are crucial cannot itself be measured
directly. Opinions often differ when managers and supervisors are
evaluated, and the same can be said for many jobs that involve
close cooperation with one's coworkers or complex and subtle tasks
like the provision of Page 487 U. S. 992 professional services or personal counseling. Because of these
difficulties, we are told, employers will find it impossible to
eliminate subjective selection criteria and impossibly expensive to
defend such practices in litigation. Respondent insists, and the
United States agrees, that employers' only alternative will be to
adopt surreptitious quota systems in order to ensure that no
plaintiff can establish a statistical prima facie case.

															We agree that the inevitable focus on statistics in disparate
impact cases could put undue pressure on employers to adopt
inappropriate prophylactic measures. It is completely unrealistic
to assume that unlawful discrimination is the sole cause of
people's failing to gravitate to jobs and employers in accord with
the laws of chance. See Sheet Metal Workers v. EEOC, 478 U. S. 421 , 478 U. S. 489 (1986) (O'CONNOR, J., concurring in part and dissenting in part).
It would be equally unrealistic to suppose that employers can
eliminate, or discover and explain, the myriad of innocent causes
that may lead to statistical imbalances in the composition of their
workforces. Congress has specifically provided that employers are
not required to avoid "disparate impact" as such:

															"Nothing contained in [Title VII] shall be interpreted to
require any employer . . . 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 . . . 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 workforce in any community,
State, section, or other area."

															42 U.S.C. § 2000e-2(j). Page 487 U. S. 993 Preferential treatment and the use of quotas by public employers
subject to Title VII can violate the Constitution, see, e.g.,
Wygant v. Jackson Bd. of Education, 476 U.
S. 267 (1986), and it has long been recognized that
legal rules leaving any class of employers with "little choice" but
to adopt such measures would be "far from the intent of Title VII." Albemarle Paper Co., 422 U.S. at 422 U. S. 449 (BLACKMUN, J., concurring in judgment). Respondent and the United
States are thus correct when they argue that extending disparate
impact analysis to subjective employment practices has the
potential to create a Hobson's choice for employers, and thus to
lead in practice to perverse results. If quotas and preferential
treatment become the only cost-effective means of avoiding
expensive litigation and potentially catastrophic liability, such
measures will be widely adopted. The prudent employer will be
careful to ensure that its programs are discussed in euphemistic
terms, but will be equally careful to ensure that the quotas are
met. Allowing the evolution of disparate impact analysis to lead to
this result would be contrary to Congress' clearly expressed
intent, and it should not be the effect of our decision today. D We do not believe that disparate impact theory need have any
chilling effect on legitimate business practices. We recognize,
however, that today's extension of that theory into the context of
subjective selection practices could increase the risk that
employers will be given incentives to adopt quotas or to engage in
preferential treatment. Because Congress has so clearly and
emphatically expressed its intent that Title VII not lead to this
result, 42 U.S.C. § 2000e-2(j), we think it imperative to explain
in some detail why the evidentiary standards that apply in these
cases should serve as adequate safeguards against the danger that
Congress recognized. Page 487 U. S. 994 Our previous decisions offer guidance, but today's extension of
disparate impact analysis calls for a fresh and somewhat closer
examination of the constraints that operate to keep that analysis
within its proper bounds. [ Footnote
2 ]

															First, we note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there
are statistical disparities in the employer's workforce. The
plaintiff must begin by identifying the specific employment
practice that is challenged. Although this has been relatively easy
to do in challenges to standardized tests, it may sometimes be more
difficult when subjective selection criteria are at issue.
Especially in cases where an employer combines subjective criteria
with the use of more rigid standardized rules or tests, the
plaintiff is, in our view, responsible for isolating and
identifying the specific employment practices that are allegedly
responsible for any observed statistical disparities. Cf.
Connecticut v. Teal, 457 U. S. 440 (1982).

															Once the employment practice at issue has been identified,
causation must be proved; that is, the plaintiff must offer
statistical evidence of a kind and degree sufficient to show that
the practice in question has caused the exclusion of applicants for
jobs or promotions because of their membership in a protected
group. Our formulations, which have never Page 487 U. S. 995 been framed in terms of any rigid mathematical formula, have
consistently stressed that statistical disparities must be
sufficiently substantial that they raise such an inference of
causation. In Griggs, for example we examined
"requirements [that] operate[d] to disqualify Negroes at a
substantially higher rate than white applicants." 401 U.S. at 401 U. S. 426 .
Similarly, we said in Albemarle Paper Co. that plaintiffs
are required to show

															"that the tests in question select applicants for hire or
promotion in a racial pattern significantly different from that of
the pool of applicants."

															422 U.S. at 422 U. S. 425 .
Later cases have framed the test in similar terms. See, e.g.,
Washington v. Davis, 426 U.S. at 426 U. S.
246 -247 ("hiring and promotion practices disqualifying
substantially disproportionate numbers of blacks"); Dothard, 433 U.S. at 433 U. S. 329 (employment standards that "select applicants for hire in a
significantly discriminatory pattern"); Beazer, 440 U.S.
at 440 U. S. 584 ("statistical evidence showing that an employment practice has the
effect of denying the members of one race equal access to
employment opportunities"); Teal, 457 U.S. at 457 U. S. 446 ("significantly discriminatory impact"). [ Footnote 3 ] Page 487 U. S. 996 Nor are courts or defendants obliged to assume that plaintiffs'
statistical evidence is reliable. "If the employer discerns
fallacies or deficiencies in the data offered by the plaintiff, he
is free to adduce countervailing evidence of his own." Dothard, 433 U.S. at 433 U. S. 331 . See also id. at 433 U. S.
338 -339 (REHNQUIST, J., concurring in result and
concurring in part) ("If the defendants in a Title VII suit believe
there to be any reason to discredit plaintiffs' statistics that
does not appear on their face, the opportunity to challenge them is
available to the defendants, just as in any other lawsuit. They may
endeavor to impeach the reliability of the statistical evidence,
they may offer rebutting evidence, or they may disparage in
arguments or in briefs the probative weight which the plaintiffs'
evidence should be accorded"). Without attempting to catalog all
the weaknesses that may be found in such evidence, we may note that
typical examples include small or incomplete Page 487 U. S. 997 data sets and inadequate statistical techniques. See, e.g.,
Fudge v. Providence Fire Dept., 766 F.2d 650, 656-659 (CA1
1985). Similarly, statistics based on an applicant pool containing
individuals lacking minimal qualifications for the job would be of
little probative value. See, e.g., Hazelwood School Dist. v.
United States, 433 U. S. 299 , 433 U. S. 308 (1977) ("[P]roper comparison was between the racial composition of
[the employer's] teaching staff and the racial composition of the
qualified public school teacher population in the relevant labor
market") (footnote omitted). Other kinds of deficiencies in
facially plausible statistical evidence may emerge from the facts
of particular cases. See, e.g., Carroll v. Sears, Roebuck &
Co., 708 F.2d 183, 189 (CA5 1983) ("The flaw in the
plaintiffs' proof was its failure to establish the required causal
connection between the challenged employment practice (testing) and
discrimination in the workforce. Because the test does not have a
cut-off, and is only one of many factors in decisions to hire or
promote, the fact that blacks score lower does not automatically
result in disqualification of disproportionate numbers of blacks as
in cases involving cutoffs") (citation omitted); Contreras v.
Los Angeles, 656 F.2d 1267, 1273-1274 (CA9 1981) (probative
value of statistics impeached by evidence that plaintiffs failed a
written examination at a disproportionately high rate because they
did not study seriously for it), cert. denied, 455 U.S.
1021 (1982).

															A second constraint on the application of disparate impact
theory lies in the nature of the "business necessity" or
"job-relatedness" defense. Although we have said that an employer
has "the burden of showing that any given requirement must have a
manifest relationship to the employment in question," Griggs, 401 U.S. at 401 U. S. 432 ,
such a formulation should not be interpreted as implying that the
ultimate burden of proof can be shifted to the defendant. On the
contrary, the ultimate burden of proving that discrimination
against a protected group has been caused by a specific employment
practice remains with the plaintiff at all times. Page 487 U. S. 998 Thus, when a plaintiff has made out a prima facie case
of disparate impact, and when the defendant has met its burden of
producing evidence that its employment practices are based on
legitimate business reasons, the plaintiff must

															"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." Albemarle Paper Co., 422 U.S. at 422 U. S. 425 (citation omitted; internal quotation marks omitted). Factors such
as the cost or other burdens of proposed alternative selection
devices are relevant in determining whether they would be equally
as effective as the challenged practice in serving the employer's
legitimate business goals. The same factors would also be relevant
in determining whether the challenged practice has operated as the
functional equivalent of a pretext for discriminatory treatment. Cf. ibid. Our cases make it clear that employers are not required, even
when defending standardized or objective tests, to introduce formal
"validation studies" showing that particular criteria predict
actual on-the-job performance. In Beazer, for example, the
Court considered it obvious that "legitimate employment goals of
safety and efficiency" permitted the exclusion of methadone users
from employment with the New York City Transit Authority; the Court
indicated that the "manifest relationship" test was satisfied, even
with respect to non-safety-sensitive jobs, because those legitimate
goals were "significantly served by" the exclusionary rule at issue
in that case, even though the rule was not required by those goals.
440 U.S. at 440 U. S. 587 ,
n. 31. Similarly, in Washington v. Davis, the Court held
that the "job-relatedness" requirement was satisfied when the
employer demonstrated that a written test was related to success at
a police training academy "wholly aside from [the test's] possible
relationship to actual performance as a police officer." 426 U.S.
at 426 U. S. 250 . See also id. at 426 U. S. 256 (STEVENS, J., concurring) ("[A]s a matter of law, it is permissible
for the police department to use a test Page 487 U. S. 999 for the purpose of predicting ability to master a training
program, even if the test does not otherwise predict ability to
perform on the job").

															In the context of subjective or discretionary employment
decisions, the employer will often find it easier than in the case
of standardized tests to produce evidence of a "manifest
relationship to the employment in question." It is self-evident
that many jobs, for example those involving managerial
responsibilities, require personal qualities that have never been
considered amenable to standardized testing. In evaluating claims
that discretionary employment practices are insufficiently related
to legitimate business purposes, it must be borne in mind that

															"[c]ourts are generally less competent than employers to
restructure business practices, and unless mandated to do so by
Congress they should not attempt it." Furnco Construction Corp. v. Waters, 438 U.S. at 438 U. S. 578 . See also Zahorik v. Cornell University, 729 F.2d 85, 96
(CA2 1984) ("[The] criteria [used by a university to award tenure],
however difficult to apply and however much disagreement they
generate in particular cases, are job-related. . . . It would be a
most radical interpretation of Title VII for a court to enjoin use
of an historically settled process and plainly relevant criteria
largely because they lead to decisions which are difficult for a
court to review"). In sum, the high standards of proof in disparate
impact cases are sufficient, in our view, to avoid giving employers
incentives to modify any normal and legitimate practices by
introducing quotas or preferential treatment. III We granted certiorari to determine whether the court below
properly held disparate impact analysis inapplicable to a
subjective or discretionary promotion system, and we now hold that
such analysis may be applied. We express no opinion as to the other
rulings of the Court of Appeals.

															Neither the District Court nor the Court of Appeals has
evaluated the statistical evidence to determine whether
petitioner Page 487 U. S. 1000 made out a prima facie case of discriminatory promotion
practices under disparate impact theory. It may be that the
relevant data base is too small to permit any meaningful
statistical analysis, but we leave the Court of Appeals to decide
in the first instance, on the basis of the record and the
principles announced today, whether this case can be resolved
without further proceedings in the District Court. The judgment of
the Court of Appeals is vacated, and the case is remanded for
further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of
this case.

															[ Footnote 1 ]

															The dissenting judge argued that the District Court had abused
its discretion in decertifying the broad class of black employees
and applicants. He also argued that Watson had succeeded in proving
that the Bank had discriminated against this class, and that the
case should be remanded so that appropriate relief could be
ordered. 798 F.2d at 800-815.

															[ Footnote 2 ]

															Both concurrences agree that we should, for the first time,
approve the use of disparate impact analysis in evaluating
subjective selection practices. Unlike JUSTICE STEVENS, we believe
that this step requires us to provide the lower courts with
appropriate evidentiary guidelines, as we have previously done for
disparate treatment cases. Moreover, we do not believe that each
verbal formulation used in prior opinions to describe the
evidentiary standards in disparate impact cases is automatically
applicable in light of today's decision. Cf. post at 487 U. S.
1000 -1001, 487 U. S.
1005 -1006 (BLACKMUN, J., concurring in part and
concurring in judgment). Congress expressly provided that Title VII
not be read to require preferential treatment or numerical quotas.
42 U.S.C. § 2000e-2(j). This congressional mandate requires, in our
view, that a decision to extend the reach of disparate impact
theory be accompanied by safeguards against the result that
Congress clearly said it did not intend.

															[ Footnote 3 ]

															Faced with the task of applying these general statements to
particular cases, the lower courts have sometimes looked for more
specific direction in the EEOC's Uniform Guidelines on Employee
Selection Procedures, 29 CFR pt. 1607 (1987). See, e.g., Bushey
v. New York State Civil Service Comm'n, 733 F.2d 220, 225-226
(CA2 1984), cert. denied, 469 U.
S. 1117 (1985); Firefighters Institute v. St.
Louis, 616 F.2d 350, 356-357 (CA8 1980), cert. denied sub
nom. Saint Louis v. United States, 452 U.S. 938 (1981). These
Guidelines have adopted an enforcement rule under which adverse
impact will not ordinarily be inferred unless the members of a
particular race, sex, or ethnic group are selected at a rate that
is less than four-fifths of the rate at which the group with the
highest rate is selected. 29 CFR § 1607.4(D) (1987). This
enforcement standard has been criticized on technical grounds, see, e.g., Boardman & Vining, The Role of Probative
Statistics in Employment Discrimination Cases, 46 Law &
Contemp.Prob., No. 4, pp. 189, 205-207 (1983); Shoben, Differential
Pass-Fail Rates in Employment Testing: Statistical Proof Under
Title VII, 91 Harv.L.Rev. 793, 805-811 (1978), and it has not
provided more than a rule of thumb for the courts, see, e.g.,
Clady v. County of Los Angeles, 770 F.2d 1421, 1428-1429 (CA9
1985), cert. denied, 475 U.S. 1109 (1986).

															Courts have also referred to the "standard deviation" analysis
sometimes used in jury selection cases. See, e.g., Rivera v.
Wichita Falls, 665 F.2d 531, 536, n. 7 (CA5 1982) (citing Casteneda v. Partida, 430 U. S. 482 (1977)); Guardians Association of New York City Police Dept. v.
Civil Service Comm'n of New York, 630 F.2d 79, 86, and n. 4
(CA2 1980) (same), cert. denied, 452 U.S. 940 (1981). 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. See Hazelwood School Dist. v. United
States, 433 U. S. 299 , 433 U. S. 311 ,
n. 17 (1977).

															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. See Clady, supra, at
1428-1429; B. Schlei & P. Grossman, Employment Discrimination
Law 98-99, and n. 77 (2d ed.1983); id. at 18-19, and n. 33
(Supp.1983-1985). 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." Teamsters v. United States, 431 U.
S. 324 , 434 U. S. 340 (1977).

															JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, concurring in part and concurring in the judgment.

															I agree that disparate impact analysis may be applied to claims
of discrimination caused by subjective or discretionary selection
processes, and I therefore join Parts 487 U.
S. 487 U. S. 487 U. S. and 487 U. S. I am
concerned, however, that the plurality mischaracterizes the nature
of the burdens this Court has allocated for proving and rebutting
disparate impact claims. In so doing, the plurality projects an
application of disparate impact analysis to subjective employment
practices that I find to be inconsistent with the proper
evidentiary standards and with the central purpose of Title VII. I
therefore cannot join Parts 487 U. S. S.
993|>II-D. I write separately to reiterate what I thought our
prior cases had made plain about the nature of claims brought
within the disparate impact framework. I The plurality's discussion of the allocation of burdens of proof
and production that apply in litigating a disparate impact claim
under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U.S.C. § 2000e et seq., is flatly Page 487 U. S. 1001 contradicted by our cases. [ Footnote
2/1 ] The plurality, of course, is correct that the initial
burden of proof is borne by the plaintiff, who must establish, by
some form of numerical showing, that a facially neutral hiring
practice "select[s] applicants . . . in a significantly
discriminatory pattern." Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 (1977). [ Footnote 2/2 ] Our cases
make clear, however, that, contrary to the plurality's assertion, ante at 487 U. S. 997 ,
a plaintiff who successfully establishes this prima facie case shifts the burden of proof, not production, to the
defendant to establish that the employment practice in question is
a business necessity. See, e.g., Albemarle Paper Co. v.
Moody, 422 U. S. 405 , 422 U. S. 425 (1975) (employer must "meet the burden of proving that its
tests are job-related'"); Dothard v. Rawlinson, 433
U.S. at 433 U. S. 329 (employer must " prov[e] that the challenged requirements
are job-related"); Griggs v. Duke Power Co., 401 U.
S. 424 , 401 U. S. 432 (1971) ("Congress has placed on the employer the burden of showing that any given requirement must have a manifest
relationship to the employment in question") (emphasis added in
each quotation). The plurality's suggested allocation of burdens bears a closer
resemblance to the allocation of burdens we established for
disparate treatment claims in McDonnell Douglas Corp. v.
Green, 411 U. S. 792 , 411 U. S.
802 -804 (1973), and Texas Dept. of Community Affairs
v. Burdine, 450 U. S. 248 , 450 U. S.
252 -256 (1981), than it does to those the Court has
established for disparate impact claims. Nothing in our cases
supports the plurality's declaration that, in the context of a
disparate impact challenge,

															"the ultimate burden of proving Page 487 U. S. 1002 that discrimination against a protected group has been caused by
a specific employment practice remains with the plaintiff at all
times." Ante at 487 U. S. 997 .
What is most striking about this statement is that it is a
near-perfect echo of this Court's declaration in Burdine that, in the context of an individual disparate treatment claim,

															"[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff."

															450 U.S. at 450 U. S. 253 .
In attempting to mimic the allocation of burdens the Court has
established in the very different context of individual disparate
treatment claims, the plurality turns a blind eye to the crucial
distinctions between the two forms of claims. [ Footnote 2/3 ]

															The violation alleged in a disparate treatment challenge focuses
exclusively on the intent of the employer. See Teamsters v.
United States, 431 U. S. 324 , 431 U. S. 335 ,
n. 15 (1977) (in disparate treatment challenge "[p]roof of
discriminatory motive is critical"). Unless it is proved that an
employer intended to disfavor the plaintiff because of his
membership in a protected class, a disparate treatment claim fails.
A disparate impact claim, in contrast, focuses on the effect of the employment practice. See id. at 431 U. S. 336 ,
n. 15 (disparate impact claims "involve employment practices that
are facially neutral in their treatment of different groups, but
that, in fact, fall more harshly on one group than another").
Unless an employment practice producing the disparate effect is
justified by "business necessity," ibid., it violates
Title VII, for

															"good intent or absence of discriminatory intent does not
redeem Page 487 U. S. 1003 employment procedures or testing mechanisms that operate as
'built-in headwinds' for minority groups." Griggs v. Duke Power Co., 401 U.S. at 401 U. S.
432 .

															In McDonnell Douglas and Burdine, this Court
formulated a scheme of burden allocation designed "progressively to
sharpen the inquiry into the elusive factual question of
intentional discrimination." Texas Dept. of Community Affairs
v. Burdine, 450 U.S. at 450 U. S. 255 ,
n. 8. The plaintiff's initial burden of establishing a prima
facie case of disparate treatment is "not onerous," id. at 450 U. S. 253 ,
and

															"raises an inference of discrimination only because we presume
these acts, if otherwise unexplained, are more likely than not
based on the consideration of impermissible factors." Furnco Construction Corp. v. Waters, 438 U.
S. 567 , 438 U. S. 577 (1978). [ Footnote 2/4 ] An employer
may rebut this presumption if it asserts that plaintiff's rejection
was based on "a legitimate, nondiscriminatory reason" and produces
evidence sufficient to "rais[e] a genuine issue of fact as to
whether it discriminated against the plaintiff." Texas Dept. of
Community Affairs v. Burdine, 450 U.S. at 450 U. S.
254 -255. If the employer satisfies "this burden of
production," then "the factual inquiry proceeds to a new level of
specificity," id. at 450 U. S. 255 ,
and it is up to the plaintiff to prove that the proffered reason
was a pretext for discrimination. Id. at 450 U. S. 256 .
This allocation of burdens reflects the Court's unwillingness to require a trial court to presume, on the basis of the
facts establishing a prima facie case, that an employer
intended to discriminate, in the face of evidence suggesting that
the plaintiff's rejection might have been justified by Page 487 U. S. 1004 some nondiscriminatory reason. The prima facie case is
therefore insufficient to shift the burden of proving a
lack of discriminatory intent to the defendant.

															The prima facie case of disparate impact established by
a showing of a significant statistical disparity is notably
different. Unlike a claim of intentional discrimination, which the McDonnell Douglas factors establish only by inference, the
disparate impact caused by an employment practice is directly established by the numerical disparity. Once an
employment practice is shown to have discriminatory consequences,
an employer can escape liability only if it persuades the court
that the selection process producing the disparity has " a
manifest relationship to the employment in question.'" Connecticut v. Teal, 457 U. S. 440 , 457 U. S. 446 (1982), quoting Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 432 .
The plaintiff in such a case already has proved that the employment
practice has an improper effect; it is up to the employer to prove
that the discriminatory effect is justified. Intertwined with the plurality's suggestion that the defendant's
burden of establishing business necessity is merely one of
production is the implication that the defendant may satisfy this
burden simply by "producing evidence that its employment practices
are based on legitimate business reasons." Ante at 487 U. S. 998 .
Again, the echo from the disparate treatment cases is unmistakable.
In that context, it is enough for an employer "to articulate some
legitimate, nondiscriminatory reason" for the allegedly
discriminatory act in order to rebut the presumption of intentional
discrimination. McDonnell Douglas, 411 U.S. at 411 U. S. 802 .
But again the plurality misses a key distinction: an employer
accused of discriminating intentionally need only dispute that it
had any such intent -- which it can do by offering any legitimate, nondiscriminatory justification. Such a justification
is simply not enough to legitimize a practice that has the effect
of excluding a protected class from job opportunities at a
significantly disproportionate rate. Our cases since Griggs make Page 487 U. S. 1005 clear that this effect itself runs afoul of Title VII unless it
is "necessary to safe and efficient job performance." Dothard
v. Rawlinson, 433 U.S. at 433 U. S. 332 ,
n. 14. See also Nashville Gas Co. v. Satty, 434 U.
S. 136 , 434 U. S. 143 (1977) (issue is whether "a company's business necessitates the
adoption of particular leave policies"); Griggs v. Duke Power
Co., 401 U.S. at 401 U. S. 432 ("[A]ny given requirement must have a manifest relationship to the employment in question") (emphasis added).

															Precisely what constitutes a business necessity cannot be
reduced, of course, to a scientific formula, for it necessarily
involves a case-specific judgment which must take into account the
nature of the particular business and job in question. The term
itself, however, goes a long way toward establishing the limits of
the defense: to be justified as a business necessity, an
employment criterion must bear more than an indirect or minimal
relationship to job performance. See Dothard v. Rawlinson, 433 U.S. at 433 U. S.
331 -332 (absent proof that height and weight
requirements directly correlated with amount of strength deemed
"essential to good job performance," requirements not justified as
business necessity); Albemarle Paper Co. v. Moody, 422
U.S. at 422 U. S. 431 ,
quoting the Equal Employment Opportunity Commission's (EEOC)
Uniform Guidelines on Employee Selection Procedures, 29 CFR §
1607.4(c) (1974) ("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'"). Cf. Washington v. Davis, 426 U.
S. 229 , 426 U. S. 247 (1976) (Title VII litigation "involves a more probing judicial
review, and less deference to the seemingly reasonable acts of
[employers] than is appropriate under the Constitution where
special racial impact, without discriminatory purpose, is
claimed"). The criterion must directly relate to a prospective
employee's ability to perform the job effectively. And even where
an employer Page 487 U. S. 1006 proves that a particular selection process is sufficiently
job-related, the process in question may still be determined to be
unlawful if the plaintiff persuades the court that other selection
processes that have a lesser discriminatory effect could also
suitably serve the employer's business needs. Albemarle Paper
Co. v. Moody, 422 U.S. at 422 U. S. 425 .
In sum, under Griggs and its progeny, an employer, no
matter how well-intended, will be liable under Title VII if it
relies upon an employment selection process that disadvantages a
protected class, unless that process is shown to be necessary to
fulfill legitimate business requirements. The plurality's
suggestion that the employer does not bear the burden of making
this showing cannot be squared with our prior cases. II I am also concerned that, unless elaborated upon, the
plurality's projection of how disparate impact analysis should be
applied to subjective selection processes may prove misleading. The
plurality suggests:

															"In the context of subjective or discretionary employment
decisions, the employer will often find it easier than in the case
of standardized tests to produce evidence of a 'manifest
relationship to the employment in question.'" Ante at 487 U. S. 999 .
This statement warrants further comment in two respects. A As explained above, once it has been established that a
selection method has a significantly disparate impact on a
protected class, it is clearly not enough for an employer merely to produce evidence that the method of selection is
job-related. It is an employer's obligation to persuade the reviewing court of this fact.

															While the formal validation techniques endorsed by the EEOC in
its Uniform Guidelines may sometimes not be effective in measuring
the job-relatedness of subjective selection Page 487 U. S. 1007 processes, [ Footnote 2/5 ] a
variety of methods are available for establishing the link between
these selection processes and job performance, just as they are for
objective selection devices. See 29 CFR § 1607.6(B)(1) and
(2) (1987) (where selection procedure with disparate impact cannot
be formally validated, employer can "justify continued use of the
procedure in accord with Federal law"). Cf. Washington v.
Davis, 426 U.S. at 426 U. S. 247 ,
and n. 13 (hiring and promotion practices can be validated in "any
one of several ways"). The proper means of establishing business
necessity will vary with the type and size of the business in
question, as well as the particular job for which the selection
process is employed. Courts have recognized that the results of
studies, see Davis v. Dallas, 777 F.2d 205, 218-219 (CA5
1985), cert. denied, 476 U.S. 1116 (1986) (nationwide
studies and reports showing job-relatedness of college degree
requirement); the presentation of expert testimony, 777 F.2d at
219-222, 224-225 (criminal justice scholars' testimony explaining
job-relatedness of college degree requirement and psychologist's
testimony explaining job-relatedness of prohibition on recent
marijuana use); and prior successful experience, Zahorik v.
Cornell University, 729 F.2d 85, 96 (CA2 1984) ("generations"
of experience reflecting job-relatedness of decentralized
decisionmaking structure based on peer judgments in academic
setting), can all be used, under appropriate circumstances, to
establish business necessity. [ Footnote
2/6 ] Moreover, an employer that Page 487 U. S. 1008 complies with the EEOC's recordkeeping requirements, 29 CFR §§
1607.4 and 1607.15 (1987), and keeps track of the effect of its
practices on protected classes, will be better prepared to document
the correlation between its employment practices and successful job
performance when required to do so by Title VII.

															The fact that job-relatedness cannot always be established with
mathematical certainty does not free an employer from its burden of
proof, but rather requires a trial court to look to different forms
of evidence to assess an employer's claim of business necessity.
And while common sense surely plays a part in this assessment, a
reviewing court may not rely on its own, or an employer's, sense of
what is "normal," ante at 487 U. S. 999 ,
as a substitute for a neutral assessment of the evidence presented.
Indeed, to the extent an employer's "normal" practices serve to
perpetuate a racially disparate status quo, they clearly
violate Title VII unless they can be shown to be necessary, in
addition to being "normal." See Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 430 ("[P]ractices, procedures, or tests neutral on their face, and even
neutral in terms of intent, cannot be maintained if they operate to freeze' the [discriminatory] status quo "). B The plurality's prediction that an employer "will often find it
easier" ante at 487 U. S. 999 ,
to justify the use of subjective practices as a business necessity
is difficult to analyze in the abstract. Nevertheless, it bears
noting that this statement Page 487 U. S. 1009 cannot be read, consistently with Title VII principles, to
lessen the employer's burden of justifying an employment practice
that produces a disparate impact simply because the practice relies
upon subjective assessments. Indeed, the less defined the
particular criteria involved, or the system relied upon to assess
these criteria, the more difficult it may be for a reviewing court
to assess the connection between the selection process and job
performance. Cf. Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 433 (validation mechanism that fails to identify "whether the criteria actually considered were sufficiently related to the
[employer's] legitimate interest in job-specific ability" cannot
establish that test in question was sufficiently job-related). For
example, in this case, the Bank supervisors were given complete,
unguided discretion in evaluating applicants for the promotions in
question. [ Footnote 2/7 ] If
petitioner can successfully establish that respondent's hiring
practice disfavored black applicants to a significant extent, the
bald assertion that a purely discretionary selection process
allowed respondent to discover the best people for the job, without
any further evidentiary support, would not be enough to prove
job-relatedness. [ Footnote 2/8 ]

															Allowing an employer to escape liability simply by articulating
vague, inoffensive-sounding subjective criteria would disserve
Title VII's goal of eradicating discrimination in employment. It
would make no sense to establish a general rule whereby an employer
could more easily establish business Page 487 U. S. 1010 necessity for an employment practice, which left the assessment
of a list of general character qualities to the hirer's discretion,
than for a practice consisting of the evaluation of various
objective criteria carefully tailored to measure relevant job
qualifications. Such a rule would encourage employers to abandon
attempts to construct selection mechanisms subject to neutral
application for the shelter of vague generalities. [ Footnote 2/9 ]

															While subjective criteria, like objective criteria, will
sometimes pose difficult problems for the court charged with
assessing the relationship between selection process and job
performance, the fact that some cases will require courts to
develop a greater factual record and, perhaps, exercise a greater
degree of judgment, does not dictate that subjective selection
processes generally are to be accepted at face value, as long as
they strike the reviewing court as "normal and legitimate." Ante at 487 U. S. 999 .
[ Footnote 2/10 ] Griggs teaches that employment practices "fair in form, but discriminatory
in operation Page 487 U. S. 1011 ," cannot be tolerated under Title VII. 401 U.S. at 401 U. S. 431 .
This lesson should not be forgotten simply because the "fair form"
is a subjective one.

															[ Footnote 2/1 ]

															It bears noting that the question on which we granted
certiorari, and the question presented in petitioner's brief, is
whether disparate impact analysis applies to subjective practices,
not where the burdens fall if the analysis applies. The plurality
need not have reached its discussion of burden allocation and
evidentiary standards to resolve the question presented. I,
however, find it necessary to reach this issue in order to respond
to remarks made by the plurality.

															[ Footnote 2/2 ]

															I have no quarrel with the plurality's characterization of the
plaintiff's burden of establishing that any disparity is
significant. See ante at 487 U. S.
994 -997.

															[ Footnote 2/3 ] See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 252 ,
n. 5 (1981) (recognizing, in the context of articulating allocation
of burdens applicable to disparate treatment claims, "that the
factual issues, and therefore the character of the evidence
presented, differ when the plaintiff claims that a facially neutral
employment policy has a discriminatory impact on protected
classes"); United States Postal Service Bd. of Governors v.
Aikens, 460 U. S. 711 , 460 U. S. 713 ,
n. 1 (1983) ("We have consistently distinguished disparate
treatment cases from cases involving facially neutral employment
standards that have disparate impact on minority applicants").

															[ Footnote 2/4 ]

															In McDonnell Douglas Corp. v. Green, 411 U.
S. 792 , 411 U. S. 802 (1973), the Court explained that a plaintiff could meet his burden
of establishing a prima facie case of racial
discrimination by showing:

															"(i) that he belongs to a racial minority; (ii) that he applied
and was qualified for a job for which the employer was seeking
applicants; (iii) that, despite his qualifications, he was
rejected; and (iv) that, after his rejection, the position remained
open and the employer continued to seek applicants from persons of
complainant's qualifications."

															[ Footnote 2/5 ]

															The American Psychological Association, co-author of Standards
for Educational and Psychological Testing (1985), which is relied
upon by the EEOC in its Uniform Guidelines, has submitted a brief
as amicus curiae explaining that subjective assessment
devices are, in fact, amenable to the same "psychometric scrutiny"
as more objective screening devices, such as written tests. Brief
for the American Psychological Association as Amicus
Curiae 2. See also Bartholet, Application of Title
VII to Jobs in High Places, 95 Harv.L.Rev. 947, 987-988 (1982)
(discussing feasibility of validating subjective hiring
assessments).

															[ Footnote 2/6 ]

															As a corollary, of course, a Title VII plaintiff can attack an
employer's offer of proof by presenting contrary evidence,
including proof that the employer's hiring methods failed in fact
to screen for the qualities identified as central to successful job
performance. In this case, for example, petitioner could produce
evidence that Kevin Brown, one of the white employees chosen over
her for a promotion, allegedly in part because of his greater
"supervisory experience," proved to be totally unqualified for the
position. App. 113. Six months after Brown was promoted, his
performance was evaluated as only "close to being competent.'"
1 Record 68. When he resigned soon thereafter, allegedly under
pressure, he questioned whether "poor communication . . .
inadequate training," or his personality had rendered him
unqualified for the job. Id. at 85. [ Footnote 2/7 ]

															One of the hiring supervisors testified that she was never given
any guidelines or instructions on her hiring and promotion
decisions. App. 161-162. Another testified that he could not
attribute specific weight to any particular factors considered in
his promotion decisions, because "fifty or a hundred things" might
enter into such decisions. Id. at 136.

															[ Footnote 2/8 ]

															Because the establishment of business necessity is necessarily
case-specific, I am unwilling to preclude the possibility that an
employer could ever establish that a successful selection
among applicants required granting the hirer near-absolute
discretion. Of course, in such circumstances, the employer would
bear the burden of establishing that an absence of specified
criteria was necessary for the proper functioning of the
business.

															[ Footnote 2/9 ] See Atonio v. Wards Cove Packing Co., 810 F.2d 1477,
1485 (CA9) (en banc) ("It would subvert the purpose of Title VII to
create an incentive to abandon efforts to validate objective
criteria in favor of purely discretionary hiring methods"), on
return to panel, 827 F.2d 439 (1987), cert. denied, No. 87-1388, 485 U.S. 989 (1988), cert. pending, No.
87-1387; Miles v. M.N.C. Corp., 750 F.2d 867, 871 (CA11
1985) (subjective assessments involving white supervisors provide
"ready mechanism" for racial discrimination). Cf. Doverspike, Barrett, & Alexander, The Feasibility of
Traditional Validation Procedures for Demonstrating
Job-Relatedness, 9 Law & Psychology Rev. 35, 35 (1985) (noting
that "litigious climate has resulted in a decline in the use of
tests and an increase in more subjective methods of hiring").

															[ Footnote 2/10 ]

															Nor can the requirement that a plaintiff in a disparate impact
case specify the employment practice responsible for the
statistical disparity be turned around to shield from liability an
employer whose selection process is so poorly defined that no
specific criterion can be identified with any certainty, let alone
be connected to the disparate effect. Cf. ante at 487 U. S. 994 (plaintiff is responsible "for isolating and identifying the
specific employment practices that are allegedly responsible for
any observed statistical disparities").

															JUSTICE STEVENS, concurring in the judgment.

															The question we granted certiorari to decide, though extremely
important, is also extremely narrow. It reads as follows:

															"Is the racially adverse impact of an employer's practice of
simply committing employment decisions to the unchecked discretion
of a white supervisory corps subject to the test of Griggs v.
Duke Power Co., 401 U. S. 424 (1971)?"

															Pet. for Cert. i. Essentially for the reasons set forth in Parts 487 U. S. S.
989|>II-B of JUSTICE O'CONNOR's opinion, I agree that this
question must be answered in the affirmative. At this stage of the
proceeding, however, I believe it unwise to announce a "fresh"
interpretation of our prior cases applying disparate impact
analysis to objective employment criteria. See ante at 487 U. S. 994 .
Cases in which a Title VII plaintiff challenges an employer's
practice of delegating certain kinds of decisions to the subjective
discretion of its executives will include too many variables to be
adequately discussed in an opinion that does not focus on a
particular factual context. I would therefore postpone any further
discussion of the evidentiary standards set forth in our prior
cases until after the District Court has made appropriate findings
concerning this plaintiff's prima facie evidence of
disparate impact and this defendant's explanation for its practice
of giving supervisors discretion in making certain promotions.