U.S. Supreme Court Connecticut v. Teal, 457
U.S. 440 (1982) Connecticut v. Teal No. 80-2147 Argued March 29, 1982 Decided June 21, 1982 457
U.S. 440 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Respondent black employees of a Connecticut state agency were
promoted provisionally to supervisors. To attain permanent status
as supervisors, they had to participate in a selection process that
required, as a first step, a passing score on a written
examination. Subsequently, an examination was given to 48 black and
259 white candidates. Fifty-four percent of the black candidates
passed, this being approximately 68 percent of the passing rate for
the white candidates. Respondent black employees failed the
examination, and were thus excluded from further consideration for
permanent supervisory positions. They then brought an action in
Federal District Court against petitioners (the State of
Connecticut and certain state agencies and officials), alleging
that petitioners had violated Title VII of the Civil Rights Act of
1964 by requiring, as an absolute condition for consideration for
promotion, that applicants pass a written test that
disproportionately excluded blacks and was not job-related. In the
meantime, before trial, petitioners made promotions from the
eligibility list, the overall result being that 22.9 percent of the
black candidates were promoted, but only 13.5 percent of the white
candidates. Petitioners urged that this "bottom-line" result, more
favorable to blacks than to whites, was a complete defense to the
suit. The District Court agreed, and entered judgment for
petitioners, holding that the "bottom line" percentages precluded
the finding of a Title VII violation and that petitioners were not
required to demonstrate that the promotional examination was
job-related. The Court of Appeals reversed, holding that the
District Court erred in ruling that the examination results alone
were insufficient to support a prima facie case of
disparate impact in violation of Title VII. Held: Petitioners' nondiscriminatory "bottom line" does
not preclude respondents from establishing a prima facie case nor does it provide petitioners with a defense to such a case.
Pp. 457 U. S.
445 -456.

															(a) Despite petitioners' nondiscriminatory "bottom line,"
respondents' claim of disparate impact from the examination, a
pass-fail barrier to employment opportunity, states a prima
facie case of employment discrimination under § 703(a)(2) of
Title VII, which makes it an unlawful employment practice for an
employer to "limit, segregate, or classify his employees" in any
way which would deprive "any individual of employment Page 457 U. S. 441 opportunities" because of race, color, religion, sex, or
national origin. To measure disparate impact only at the "bottom
line" ignores the fact that Title VII guarantees these individual
black respondents the opportunity to compete equally with white
workers on the basis of job-related criteria. Respondents' rights
under § 703(a)(2) have been violated unless petitioners can
demonstrate that the examination in question was not an artificial,
arbitrary, or unnecessary barrier, but measured skills related to
effective performance as a supervisor. Pp. 457 U. S.
445 -451.

															(b) No special haven for discriminatory tests is offered by
703(h) of Title VII, which provides that it shall not be an
unlawful employment practice for an employer to act upon results of
an ability test if such test is "not designed, intended, or used to
discriminate" because of race, color, religion, sex, or national
origin. A non-job-related test that has a disparate impact and is
used to "limit" or "classify" employees is "used to discriminate"
within the meaning of Title VII, whether or not it was "designed or
intended" to have this effect and despite an employer's efforts to
compensate for its discriminatory effect. Pp. 457 U. S.
451 -452.

															(c) The principal focus of § 703(a)(2) is the protection of the
individual employee, rather than the protection of the minority
group as a whole. To suggest that the "bottom line" may be a
defense to a claim of discrimination against an individual employee
confuses unlawful discrimination with discriminatory intent.
Resolution of the factual question of intent is not what is at
issue in this case, but rather petitioners seek to justify
discrimination against the black respondents on the basis of
petitioners' favorable treatment of other members of these
respondents' racial group. Congress never intended to give an
employer license to discriminate against some employees on the
basis of race or sex merely because he favorably treats other
members of the employees' group. Pp. 457 U. S.
452 -456.

															645 F.2d 133, affirmed and remanded.

															BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a
dissenting opinion, in which BURGER, C.J., and REHNQUIST and
O'CONNOR, JJ., joined, post, p. 457 U. S.
456 . Page 457 U. S. 442 JUSTICE BRENNAN delivered the opinion of the Court.

															We consider here whether an employer sued for violation of Title
VII of the Civil Rights Act of 1964 [ Footnote 1 ] may assert a "bottom-line" theory of defense.
Under that theory, as asserted in this case, an employer's acts of
racial discrimination in promotions -- effected by an examination
having disparate impact -- would not render the employer liable for
the racial discrimination suffered by employes barred from
promotion if the "bottom-line" result of the promotional process
was an appropriate racial balance. We hold that the "bottom line"
does not preclude respondent employees from establishing a prima facie case, nor does it provide petitioner employer
with a defense to such a case. I Four of the respondents, Winnie Teal, Rose Walker, Edith Latney,
and Grace Clark, are black employees of the Department of Income
Maintenance of the State of Connecticut. [ Footnote 2 ] Page 457 U. S. 443 Each was promoted provisionally to the position of Welfare
Eligibility Supervisor and served in that capacity for almost two
years. To attain permanent status as supervisors, however,
respondents had to participate in a selection process that
required, as the first step, a passing score on a written
examination. This written test was administered on December 2,
1978, to 329 candidates. Of these candidates, 48 identified
themselves as black and 259 identified themselves as white. The
results of the examination were announced in March, 1979. With the
passing score set at 65, [ Footnote
3 ] 54.17 percent of the identified black candidates passed.
This was approximately 68 percent of the passing rate for the
identified white candidates. [ Footnote 4 ] The four respondents were among the blacks who
failed the examination, and they were thus excluded Page 457 U. S. 444 from further consideration for permanent supervisory positions.
In April, 1979, respondents instituted this action in the United
States District Court for the District of Connecticut against
petitioners, the State of Connecticut, two state agencies, and two
state officials. Respondents alleged, inter alia, that
petitioners violated Title VII by imposing, as an absolute
condition for consideration for promotion, that applicants pass a
written test that excluded blacks in disproportionate numbers and
that was not job-related.

															More than a year after this action was instituted, and
approximately one month before trial, petitioners made promotions
from the eligibility list generated by the written examination. In
choosing persons from that list, petitioners considered past work
performance, recommendations of the candidates' supervisors and, to
a lesser extent, seniority. Petitioners then applied what the Court
of Appeals characterized as an affirmative action program in order
to ensure a significant number of minority supervisors. [ Footnote 5 ] Forty-six persons were
promoted to permanent supervisory positions, 11 of whom were black
and 35 of whom were white. The overall result of the selection
process was that, of the 48 identified black candidates who
participated in the selection process, 22.9 percent were promoted
and of the 259 identified white candidates, 13.5 percent were
promoted. [ Footnote 6 ] It is
this "bottom-line" result, more favorable to blacks than to whites,
that petitioners urge should be adjudged to be a complete defense
to respondents' suit.

															After trial, the District Court entered judgment for
petitioners. App. to Pet. for Cert. 18a. The court treated
respondents' claim as one of disparate impact under Griggs v.
Duke Power Co., 401 U. S. 424 (1971), Albemarle Paper
Co. Page 457 U. S. 445 v. Moody, 422 U. S. 405 (1975), and Dothard v. Rawlinson, 433 U.
S. 321 (1977). However, the court found that, although
the comparative passing rates for the examination indicated a prima facie case of adverse impact upon minorities, the
result of the entire hiring process reflected no such adverse
impact. Holding that these "bottom-line" percentages precluded the
finding of a Title VII violation, the court held that the employer
was not required to demonstrate that the promotional examination
was job-related. App. to Pet. for Cert. 22a-24a, 26a. The United
States Court of Appeals for the Second Circuit reversed, holding
that the District Court erred in ruling that the results of the
written examination alone were insufficient to support a prima
facie case of disparate impact in violation of Title VII. 645
F.2d 133 (1981). The Court of Appeals stated that, where

															"an identifiable pass-fail barrier denies an employment
opportunity to a disproportionately large number of minorities and
prevents them from proceeding to the next step in the selection
process,"

															that barrier must be shown to be job-related. Id. at
138. We granted certiorari, 454 U.S. 813 (1981), and now
affirm. II A We must first decide whether an examination that bars a
disparate number of black employees from consideration for
promotion, and that has not been shown to be job-related, presents
a claim cognizable under Title VII. Section 703 (a)(2) of Title VII
provides in pertinent part:

															"It shall be an unlawful employment practice for an employer --
"

															" * * * *" "(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 Page 457 U. S. 446 an employee, because of such individual's race, color, religion,
sex, or national origin."

															78 Stat. 255, as amended, 42 U.S.C. § 2000e-2(a)(2).

															Respondents base their claim on our construction of this
provision in Griggs v. Duke Power Co., supra. Prior to the
enactment of Title VII, the Duke Power Co. restricted its black
employees to the labor department. Beginning in 1965, the company
required all employees who desired a transfer out of the labor
department to have either a high school diploma or to achieve a
passing grade on two professionally prepared aptitude tests. New
employees seeking positions in any department other than labor had
to possess both a high school diploma and a passing grade on these
two examinations. Although these requirements applied equally to
white and black employees and applicants, they barred employment
opportunities to a disproportionate number of blacks. While there
was no showing that the employer had a racial purpose or invidious
intent in adopting these requirements, this Court held that they
were invalid because they had a disparate impact and were not shown
to be related to job performance:

															"[Title VII] proscribes not only overt discrimination but also
practices that are fair in form, but discriminatory in operation.
The touchstone is business necessity. If an employment practice
which operates to exclude Negroes cannot be shown to be related to
job performance, the practice is prohibited."

															401 U.S. at 401 U. S.
431 . Griggs and its progeny have established a three-part
analysis of disparate impact claims. To establish a prima
facie case of discrimination, a plaintiff must show that the
facially neutral employment practice had a significantly
discriminatory impact. If that showing is made, the employer must
then demonstrate that "any given requirement [has] a manifest
relationship to the employment in question," in order to Page 457 U. S. 447 avoid a finding of discrimination. Griggs, supra, at 401 U. S. 432 .
Even in such a case, however, the plaintiff may prevail if he shows
that the employer was using the practice as a mere pretext for
discrimination. See Albemarle Paper Co., supra, at 457 U. S. 425 ; Dothard, supra, at 433 U. S. 329 .
[ Footnote 7 ] Griggs recognized that, in enacting Title VII, Congress
required "the removal of artificial, arbitrary, and unnecessary
barriers to employment" and professional development that had
historically been encountered by women and blacks, as well as other
minorities. 401 U.S. at 401 U. S. 431 . See also Dothard v. Rawlinson, supra. [ Footnote 8 ] McDonnell-Douglas Corp. v.
Green, 411 U. S. 792 (1973), explained that

															" Griggs was rightly concerned that childhood
deficiencies in the education and background of minority citizens,
resulting from forces beyond their control, not be allowed to work
a cumulative and invidious burden on such citizens for the
remainder of their lives." Id. at 411 U. S.
806 . Page 457 U. S. 448 Petitioners' examination, which barred promotion and had a
discriminatory impact on black employees, clearly falls within the
literal language of § 703(a)(2), as interpreted by Griggs. The statute speaks, not in terms of jobs and promotions, but in
terms of limitations and classifications that
would deprive any individual of employment opportunities. [ Footnote 9 ] A disparate impact
claim reflects the language of § 703(a)(2) and Congress' basic
objectives in enacting that statute:

															"to achieve equality of employment opportunities and
remove barriers that have operated in the past to favor an
identifiable group of white employees over other employees."

															401 U.S. at 401 U. S.
429 -430 (emphasis added). When an employer uses a
non-job-related barrier in order to deny a minority or woman
applicant employment or promotion, and that barrier has a
significant adverse effect on minorities or women, then the
applicant has been deprived of an employment opportunity "because of . . . race, color, religion, sex, or national origin."
In other words, § 703(a)(2) prohibits discriminatory "artificial,
arbitrary, and unnecessary barriers to employment," 401 U.S. at 401 U. S. 431 ,
that

															"limit . . . or classify . . . applicants for employment . . .
in any way which would deprive or tend to deprive any individual of
employment opportunities. "

															(Emphasis added.)

															Relying on § 703(a)(2), Griggs explicitly focused on
employment "practices, procedures, or tests," 401 U.S. at 401 U. S. 430 ,
that deny equal employment "opportunity," id. at 401 U. S. 431 .
We concluded that Title VII prohibits "procedures or testing
mechanisms that operate as built-in headwinds' for
minority Page 457 U. S.
449 groups." Id. at 401 U. S. 432 .
We found that Congress' primary purpose was the prophylactic one of
achieving equality of employment "opportunities" and removing
"barriers" to such equality. Id. at 401 U. S.
429 -430. See Albemarle Paper Co. v. Moody, 422
U.S. at 422 U. S. 417 .
The examination given to respondents in this case surely
constituted such a practice and created such a barrier. Our conclusion that § 703(a)(2) encompasses respondents' claim
is reinforced by the terms of Congress' 1972 extension of the
protections of Title VII to state and municipal employees. See n 8, supra. Although Congress did not explicitly consider the
viability of the defense offered by the state employer in this
case, the 1972 amendments to Title VII do reflect Congress' intent
to provide state and municipal employees with the protection that
Title VII, as interpreted by Griggs, had provided to
employees in the private sector: equality of opportunity and the elimination of discriminatory barriers to
professional development. The Committee Reports and the floor
debates stressed the need for equality of opportunity for minority
applicants seeking to obtain governmental positions. E.g., S.Rep. No. 9215, p. 10 (1971); 118 Cong.Rec. 1815 (1972) (remarks
of Sen. Williams). Congress voiced its concern about the widespread
use by state and local governmental agencies of "invalid selection
techniques" that had a discriminatory impact. S.Rep. No. 9215, supra, at 10; H.R.Rep. No. 92-238, p. 17 (1971); 117
Cong.Rec. 31961 (1971) (remarks of Rep. Perkins). [ Footnote 10 ] Page 457 U. S. 450 The decisions of this Court following Griggs also
support respondents' claim. In considering claims of disparate
impact under § 703(a)(2) this Court has consistently focused on
employment and promotion requirements that create a discriminatory
bar to opportunities. This Court has never read §
703(a)(2) as requiring the focus to be placed instead on the
overall number of minority or female applicants actually hired or
promoted. Thus, 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. Although we noted in passing that women
constituted 36.89 percent of the labor force and only 12. 9 percent
of correctional 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 women than men as ineligible for employment. Id. at 433 U. S.
329 -330, and n. 12. Similarly, in Albemarle Paper
Co. v. Moody, supra, 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. 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 422 U.S. at 422 U. S. 436 . See also New York Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S. 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
added). Page 457 U. S. 451 In short, the District Court's dismissal of respondents' claim
cannot be supported on the basis that respondents failed to
establish a prima facie case of employment discrimination
under the terms of § 703(a)(2). The suggestion that disparate
impact should be measured only at the bottom line ignores the fact
that Title VII guarantees these individual respondents the
opportunity to compete equally with white workers on the basis of
job-related criteria. Title VII strives to achieve equality of
opportunity by rooting out "artificial, arbitrary, and unnecessary"
employer-created barriers to professional development that have a
discriminatory impact upon individuals. Therefore, respondents'
rights under 703(a)(2) have been violated unless petitioners can
demonstrate that the examination given was not an artificial,
arbitrary, or unnecessary barrier, because it measured skills
related to effective performance in the role of Welfare Eligibility
Supervisor. B The United States, in its brief as amicus curiae, apparently recognizes that respondents' claim in this case falls
within the affirmative commands of Title VII. But it seeks to
support the District Court's judgment in this case by relying on
the defenses provided to the employer in § 703(h). [ Footnote 11 ] Section 703(h) provides in
pertinent part:

															"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 Page 457 U. S. 452 of race, color, religion, sex or national origin."

															78 Stat. 267, as amended, 42 U.S.C. 2000e-2(h).

															The Government argues that the test administered by the
petitioners was not "used to discriminate," because it did not
actually deprive disproportionate numbers of blacks of promotions.
But the Government's reliance on § 703(h) as offering the employer
some special haven for discriminatory tests is misplaced. We
considered the relevance of this provision in Griggs. After examining the legislative history of § 703(h), we concluded
that Congress, in adding § 703(h), intended only to make clear that
tests that were job-related would be permissible despite their
disparate impact. 401 U.S. at 401 U. S.
433 -436. As the Court recently confirmed, § 703 (h),
which was introduced as an amendment to Title VII on the Senate
floor, "did not alter the meaning of Title VII, but merely
clarifie[d] its present intent and effect.'" American Tobacco
Co. v. Patterson, 456 U. S. 63 , 456 U. S. 73 , n.
11 (1982), quoting 110 Cong.Rec. 12723 (1964) (remarks of Sen.
Humphrey). A non-job-related test that has a disparate racial
impact, and is used to "limit" or "classify" employees, is "used to
discriminate" within the meaning of Title VII, whether or not it
was "designed or intended" to have this effect and despite an
employer's efforts to compensate for its discriminatory effect. See Griggs, 401 U.S. at 401 U. S.
433 . In sum, respondents' claim of disparate impact from the
examination, a pass-fail barrier to employment opportunity, states
a prima facie case of employment discrimination under §
703(a)(2), despite their employer's nondiscriminatory "bottom
line," and that "bottom line" is no defense to this prima
facie case under § 703(h). III Having determined that respondents' claim comes within the terms
of Title VII, we must address the suggestion of petitioners and
some amici curiae that we recognize an exception, either
in the nature of an additional burden on plaintiffs Page 457 U. S. 453 seeking to establish a prima facie case or in the
nature of an affirmative defense, for cases in which an employer
has compensated for a discriminatory pass-fail barrier by hiring or
promoting a sufficient number of black employees to reach a
nondiscriminatory "bottom line." We reject this suggestion, which
is, in essence, nothing more than a request that we redefine the
protections guaranteed by Title VII. [ Footnote 12 ]

															Section 703(a)(2) prohibits practices that would deprive or tend
to deprive " any individual of employment opportunities."
The principal focus of the statute is the protection of the
individual employee, rather than the protection of the minority Page 457 U. S. 454 group as a whole. Indeed, the entire statute and its legislative
history are replete with references to protection for the
individual employee. See, e.g., §§ 703(a)(1), (b), (c),
704(a), 78 Stat. 255-257, as amended, 42 U.S.C. §§ 2000e-2(a)(1),
(b), (c), 2000e-3(a); 110 Cong.Rec. 7213 (1964) (interpretive
memorandum of Sens. Clark and Case) ("discrimination is prohibited
as to any individual"); id. at 8921 (remarks of Sen.
Williams) ("Every man must be judged according to his ability. In
that respect, all men are to have an equal opportunity to be
considered for a particular job").

															In suggesting that the "bottom line" may be a defense to a claim
of discrimination against an individual employee, petitioners and amici appear to confuse unlawful discrimination with
discriminatory intent. The Court has stated that a
nondiscriminatory "bottom line" and an employer's good faith
efforts to achieve a nondiscriminatory workforce might, in some
cases, assist an employer in rebutting the inference that
particular action had been intentionally discriminatory:

															"Proof that [a] workforce was racially balanced or that it
contained a disproportionately high percentage of minority
employees is not wholly irrelevant on the issue of intent when that
issue is yet to be decided." Furnco Construction Corp. v. Waters, 438 U.
S. 567 , 438 U. S. 580 (1978). See also Teamsters v. United States, 431 U.
S. 324 , 431 U. S. 340 ,
n. 20 (1977). But resolution of the factual question of intent is
not what is at issue in this case. Rather, petitioners seek simply
to justify discrimination against respondents on the basis of their
favorable treatment of other members of respondents' racial group.
Under Title VII, "[a] racially balanced workforce cannot immunize
an employer from liability for specific acts of discrimination." Furnco Construction Corp. v. Waters, 438 U.S. at 438 U. S.
579 .

															"It is clear beyond cavil that the obligation imposed by Title
VII is to provide an equal opportunity for each applicant
regardless of race, without regard to whether Page 457 U. S. 455 members of the applicant's race are already proportionately
represented in the workforce. See Griggs v. Duke Power
Co., 401 U.S. at 401 U. S. 430 ; McDonald
v. Santa Fe Trail Transportation Co., 427 U. S.
273 , 427 U. S. 279 (1976)." Ibid. (emphasis in original).

															It is clear that Congress never intended to give an employer
license to discriminate against some employees on the basis of race
or sex merely because he favorably treats other members of the
employees' group. We recognized in Los Angeles Dept. of Water
& Power v. Manhart, 435 U. S. 702 (1978), that fairness to the class of women employees as a whole
could not justify unfairness to the individual female employee,
because the "statute's focus on the individual is unambiguous." Id. at 435 U. S. 708 .
Similarly, in Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), we recognized that a rule barring employment
of all married women with preschool children, if not a bona fide
occupational qualification under § 703(e), violated Title VII, even
though female applicants without preschool children were hired in
sufficient numbers that they constituted 75 to 80 percent of the
persons employed in the position plaintiff sought.

															Petitioners point out that Furnco, Manhart, and Phillips involved facially discriminatory policies, while
the claim in the instant case is one of discrimination from a
facially neutral policy. The fact remains, however, that,
irrespective of the form taken by the discriminatory practice, an
employer's treatment of other members of the plaintiffs' group can
be "of little comfort to the victims of . . . discrimination." Teamsters v. United States, supra, at 431 U. S. 342 .
Title VII does not permit the victim of a facially discriminatory
policy to be told that he has not been wronged because other
persons of his or her race or sex were hired. That answer is no
more satisfactory when it is given to victims of a policy that is
facially neutral but practically discriminatory. Every individual employee is protected against both
discriminatory treatment Page 457 U. S. 456 and "practices that are fair in form, but discriminatory in
operation." Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 431 .
Requirements and tests that have a discriminatory impact are merely
some of the more subtle, but also the more pervasive, of the
"practices and devices which have fostered racially stratified job
environments to the disadvantage of minority citizens." McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S.
800 . IV In sum, petitioners' nondiscriminatory "bottom line" is no
answer, under the terms of Title VII, to respondents' prima
facie claim of employment discrimination. Accordingly, the
judgment of the Court of Appeals for the Second Circuit is
affirmed, and this case is remanded to the District Court for
further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ]

															Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp.
IV).

															[ Footnote 2 ]

															The black respondents were joined as plaintiffs by four white
employees on a pendent claim that the written test violated
provisions of state law that require promotional exams to be
job-related. That claim is not before us. See 645 F.2d
133, 135, n. 3 (CA2 1981).

															[ Footnote 3 ]

															The mean score on the examination was 70.4 percent. However,
because the black candidates had a mean score 6.7 percentage points
lower than the white candidates, the passing score was set at 65,
apparently in an attempt to lessen the disparate impact of the
examination. See id. at 135, and n. 4.

															[ Footnote 4 ]

															The following table shows the passing rates of various candidate
groups:

															Passing

															Candidate No. Receiving Rate

															Group Number Passing Score (%)

															Black 48 26 54.17

															Hispanic 4 3 75.00

															Indian 3 2 66.67

															White 25 206 79.54

															Unidentified 15 9 60.00

															--- --- -----

															Total 329 246 74.77

															Petitioners do not contest the District Court's implicit finding
that the examination itself resulted in disparate impact under the
"eighty percent rule" of the Uniform Guidelines on Employee
Selection Procedures adopted by the Equal Employment Opportunity
Commission. See App. to Pet. for Cert. 18a, 23a, and n. 2.
Those guidelines provide that a selection rate that "is less than
[80 percent] of the rate for the group with the highest rate will
generally be regarded . . . as evidence of adverse impact." 29 CFR
§ 1607.4D (1981).

															[ Footnote 5 ]

															Petitioners contest this characterization of their selection
procedure. We have no need, however, to resolve this dispute in the
context of the present controversy.

															[ Footnote 6 ]

															The actual promotion rate of blacks was thus close to 170
percent that of the actual promotion rate of whites.

															[ Footnote 7 ]

															Petitioners apparently argue both that the nondiscriminatory
"bottom line" precluded respondents from establishing a prima
facie case and, in the alternative, that it provided a
defense.

															[ Footnote 8 ]

															The legislative history of the 1972 amendments to Title VII, 86
Stat. 103-113, is relevant to this case because those amendments
extended the protection of the Act to respondents here by deleting
exemptions for state and municipal employers. See 86 Stat.
103. That history demonstrates that Congress recognized and
endorsed the disparate impact analysis employed by the Court in Griggs. Both the House and Senate Reports cited Griggs with approval, the Senate Report noting:

															"Employment discrimination as viewed today is a . . . complex
and pervasive phenomenon. Experts familiar with the subject now
generally describe the problem in terms of 'systems' and 'effects,'
rather than simply intentional wrongs."

															S.Rep. No. 92-415, p. 5 (1971). See also H.R.Rep. No.
92-238, p. 8 (1971). In addition, the section-by-section analyses
of the 1972 amendments submitted to both Houses explicitly stated
that, in any area not addressed by the amendments, present case law
-- which as Congress had already recognized included our then
recent decision in Griggs -- was intended to continue to
govern. 118 Cong.Rec. 7166, 7564 (1972).

															[ Footnote 9 ]

															In contrast, the language of § 703(a)(1), 42 U.S.C. §
2000e-2(a)(1), if it were the only protection given to employees
and applicants under Title VII, might support petitioners'
exclusive focus on the overall result. That subsection makes it an
unlawful employment practice

															"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."

															[ Footnote 10 ]

															The Committee Reports in both Houses, and Senator Williams,
principal sponsor of the Senate bill that was ultimately enacted in
large part, relied upon a report of the United States Commission on
Civil Rights, which Senator Williams placed in the Congressional
Record. See H.R.Rep. No. 92-238, p. 17 (1971); S.Rep. No.
92 415, p. 10 (1971); 118 Cong.Rec. 1815-1819 (1972). The
Commission concluded that serious "[b]arriers to equal opportunity"
existed for state and local government employees. Two of the three
barriers cited were "recruitment and selection devices which are
arbitrary, unrelated to job performance, and result in unequal
treatment of minorities," and promotions made on the basis of
"criteria unrelated to job performance and on discriminatory
supervisory ratings." U.S. Commission on Civil Rights, For All the
People . . . By All the People -- A Report on Equal Opportunity in
State and Local Government Employment 119 (1969), reprinted in 118
Cong.Rec. 1817 (1972).

															[ Footnote 11 ]

															The Government's brief is submitted by the Department of
Justice, which shares responsibility for federal enforcement of
Title VII with the Equal Employment Opportunity Commission (EEOC).
The EEOC declined to join this brief. See Brief for United
States as Amicus Curiae 1, and n.

															[ Footnote 12 ]

															Petitioners suggest that we should defer to the EEOC Guidelines
in this regard. But there is nothing in the Guidelines to which we
might defer that would aid petitioners in this case. The most
support petitioners could conceivably muster from the Uniform
Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1981)
(now issued jointly by the EEOC, the Office of Personnel
Management, the Department of Labor, and the Department of Justice, see 29 CFR § 1607.1A (1981)), is neutrality on
the question whether a discriminatory barrier that does not result
in a discriminatory overall result constitutes a violation of Title
VII. Section 1607.4C of the Guidelines, relied upon by petitioners,
states that as a matter of " administrative and prosecutorial
discretion, in usual circumstances, " the agencies will not
take enforcement action based upon the disparate impact of any
component of a selection process if the total selection process
results in no adverse impact. (Emphasis added.) The agencies made
clear that the "guidelines do not address the underlying question
of law," and that an individual

															"who is denied the job because of a particular component in a
procedure which otherwise meets the 'bottom line' standard . . .
retains the right to proceed through the appropriate agencies, and
into Federal court."

															43 Fed.Reg. 38291 (1978). See 29 CFR § 1607.161 (1981).
In addition, in a publication entitled Adoption of Questions and
Answers to Clarify and Provide a Common Interpretation of the
Uniform Guidelines on Employee Selection Procedures, the agencies
stated:

															"Since the [bottom-line] concept is not a rule of law, it does
not affect the discharge by the EEOC of its statutory
responsibilities to investigate charges of discrimination, render
an administrative finding on its investigation, and engage in
voluntary conciliation efforts. Similarly, with respect to the
other issuing agencies, the bottom line concept applies not to the
processing of individual charges, but to the initiation of
enforcement action."

															44 Fed.Reg. 12000 (1979).

															JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST,
and JUSTICE O'CONNOR join, dissenting.

															In past decisions, this Court has been sensitive to the critical
difference between cases proving discrimination under Title VII, 42
U.S.C. § 2000e et seq. (1976 ed. and Supp. IV), by a
showing of disparate treatment or discriminatory intent and those
proving such discrimination by a showing of disparate impact.
Because today's decision blurs that distinction and results in a
holding inconsistent with the very nature of disparate impact
claims, I dissent. I Section 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2),
provides that it is 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 Page 457 U. S. 457 otherwise adversely affect his status as an employee, because of
such individual's race, color, religion, sex, or national
origin."

															Although this language suggests that discrimination occurs only
on an individual basis, in Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 432 (1971), the Court held that discriminatory intent on the part of
the employer against an individual need not be shown when

															"employment procedures or testing mechanisms . . . operate as
'built-in headwinds' for minority groups, and are unrelated to
measuring job capability."

															Thus, the Court held that the "disparate impact" of an
employer's practices on a racial group can violate § 703(a)(2) of
Title VII. In Griggs and each subsequent disparate impact
case, however, the Court has considered not whether the claimant as
an individual had been classified in a manner impermissible under §
703(a)(2), but whether an employer's procedures have had an adverse
impact on the protected group to which the individual
belongs.

															Thus, while disparate treatment cases focus on the way
in which an individual has been treated, disparate impact cases are concerned with the protected group. This key distinction
was explained in Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S.
581 -582 (1978) (MARSHALL, J., concurring in part):

															"It is well established under Title VII that claims of
employment discrimination because of race may arise in two
different ways. Teamsters v. United States, 431 U. S.
324 , 431 U. S. 335 -336, n. 15
(1977). An individual may allege that he has been subjected to
'disparate treatment' because of his race, or that he has been the
victim of a facially neutral practice having a 'disparate impact'
on his racial group. [ Footnote 2/1 ]
" Page 457 U. S. 458 In keeping with this distinction, our disparate impact cases
consistently have considered whether the result of an employer's total selection process had an adverse impact upon the
protected group. [ Footnote 2/2 ] If
this case were decided by reference to the total process -- as our
cases suggest that it should be -- the result would be clear. Here
22.9% of the blacks who entered the selection process were
ultimately promoted, compared with only 13. 5% of the whites. To
say that this selection process had an unfavorable "disparate
impact" on blacks is to ignore reality.

															The Court, disregarding the distinction drawn by our cases,
repeatedly asserts that Title VII was designed to protect
individual, not group, rights. It emphasizes that some individual
blacks were eliminated by the disparate impact of the preliminary
test. But this argument confuses the aim of Title VII with
the legal theories through which its aims were intended to be
vindicated. It is true that the aim of Title VII is to protect
individuals, not groups. But in advancing this commendable
objective, Title VII jurisprudence has recognized two distinct
methods of proof. In one set of cases -- those involving direct
proof of discriminatory intent -- the plaintiff seeks to establish
direct, intentional discrimination against him. In that type of
case, the individual is at the forefront throughout the entire
presentation of evidence. In disparate impact cases, by contrast,
the plaintiff seeks to carry his burden of proof by way of inference -- by showing that an employer's selection
process results in the rejection of a disproportionate number of
members of a protected group Page 457 U. S. 459 to which he belongs. From such a showing, a fair inference then
may be drawn that the rejected applicant, as a member of that
disproportionately excluded group, was himself a victim of that
process' " built-in headwinds.'" Griggs, supra, at 401 U. S. 432 .
But this method of proof -- which actually defines disparate impact theory under Title VII -- invites the plaintiff to
prove discrimination by reference to the group, rather than to the
allegedly affected individual. [ Footnote 2/3 ] There can be no violation of Title VII on
the basis of disparate impact in the absence of disparate impact on
a group. [ Footnote
2/4 ] In this case, respondent black employees seek to benefit from a
conflation of "discriminatory treatment" and "disparate impact"
theories. But they cannot have it both ways. Having undertaken to
prove discrimination by reference to one set of group figures (used
at a preliminary point in the selection process), these respondents
then claim that non discrimination cannot be proved by
viewing the impact of the entire process on the group as a whole.
The fallacy of this reasoning -- accepted by the Court -- is
transparent. It is to Page 457 U. S. 460 confuse the individualistic aim of Title VII with the
methods of proof by which Title VII rights may be vindicated. The
respondents, as individuals, are entitled to the full personal
protection of Title VII. But, having undertaken to prove a
violation of their rights by reference to group figures,
respondents cannot deny petitioners the opportunity to rebut their
evidence by introducing figures of the same kind. Having pleaded a
disparate impact case, the plaintiff cannot deny the defendant the
opportunity to show that there was no disparate impact. As the
Court of Appeals for the Third Circuit noted in EEOC v.
Greyhound Lines, Inc., 635 F.2d 188, 192 (1980):

															"[N]o violation of Title VII can be grounded on the disparate
impact theory without proof that the questioned policy or practice
has had a disproportionate impact on the employer's workforce. This
conclusion should be as obvious as it is tautological: there can be
no disparate impact unless there is [an ultimate] disparate
impact."

															Where, under a facially neutral employment process, there has
been no adverse effect on the groups -- and certainly there has
been none here -- Title VII has not been infringed. II The Court's position is no stronger in case authority than it is
in logic. None of the cases relied upon by the Court controls the
outcome of this case. [ Footnote
2/5 ] Indeed, the disparate Page 457 U. S. 461 impact cases do not even support the propositions for which they
are cited. For example, the Court cites Dothard v.
Rawlinson, 433 U. S. 321 (1977) (holding impermissible minimum statutory height and weight
requirements for correctional counselors), and observes that,

															"[a]lthough we noted in passing that women constituted 36.89
percent of the labor force and only 12.9 percent of correctional
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 women than
men as ineligible for employment." Ante at 457 U. S. 450 .
In Dothard, however, the Court was not considering a case
in which there was any difference between the discriminatory effect
of the employment standard and the number of minority members
actually hired. The Dothard Court itself stated:

															"[T]o establish a prima facie case of discrimination, a
plaintiff need only show that the facially neutral standards in
question select applicants for hire in a discriminatory
pattern. Once it is shown that the employment standards are discriminatory in effect, the employer must meet 'the burden of
showing that any given requirement [has] . . . a manifest
relationship to the employment in question.'"

															433 U.S. at 433 U. S. 329 (emphasis added). The Dothard Court did not decide today's
case. It addressed only a case in which the challenged standards
had a discriminatory impact at the bottom line -- the hiring
decision. And the Dothard Court's "focus," referred to by
the Court, is of no help in deciding the instant case. [ Footnote 2/6 ] Page 457 U. S. 462 The Court concedes that the other major cases on which it
relies, Furnco, Los Angeles Dept. of Water & Power v.
Manhart, 435 U. S. 702 (1978), and Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam) "involved facially discriminatory policies,
while the claim in the instant case is one of discrimination from a
facially neutral policy." Ante at 457 U. S. 455 .
The Court nevertheless applies the principles derived from those
cases to the case at bar. It does so by reiterating the view that
Title VII protects individuals, not groups, and therefore
that the manner in which an employer has treated other members of a
group cannot defeat the claim of an individual who has suffered as
a result of even a facially neutral policy. As appealing as this
sounds, it confuses the distinction -- uniformly recognized until
today -- between disparate impact and disparate treatment. See supra at 457 U. S.
457 -458. Our cases, cited above, have made clear that
discriminatory impact claims cannot be based on how an individual
is treated in isolation from the treatment of other members of the
group. Such claims necessarily are based on whether the group fares
less well than other groups under a policy, practice, or test.
Indeed, if only one minority member has Page 457 U. S. 463 taken a test, a disparate impact claim cannot be made,
regardless of whether the test is an initial step in the selection
process or one of several factors considered by the employer in
making an employment decision. [ Footnote 2/7 ] III Today's decision takes a long and unhappy step in the direction
of confusion. Title VII does not require that employers adopt merit
hiring or the procedures most likely to permit the greatest number
of minority members to be considered for or to qualify for jobs and
promotions. See Texas Dept. of Community Affairs v.
Burdine, 450 U. S. 248 , 450 U. S.
258 -259 (1981); Furnco, 438 U.S. at 438 U. S. 578 .
Employers need not develop tests that accurately reflect the skills
of every individual candidate; there are few if any tests that do
so. Yet the Court seems unaware of this practical reality, and
perhaps oblivious to the likely consequences of its decision. By
its holding today, the Court may force employers either to
eliminate tests or rely on expensive, job-related, testing
procedures, the validity of which may or may not be sustained if
challenged. For state and local governmental employers with limited
funds, the practical effect of today's decision may well be the
adoption of simple quota hiring. [ Footnote 2/8 ] This arbitrary Page 457 U. S. 464 method of employment is itself unfair to individual applicants,
whether or not they are members of minority groups. And it is not
likely to produce a competent workforce. Moreover, the Court's
decision actually may result in employers' employing fewer minority members. As Judge Newman noted in Brown v. New Haven
Civil Service Board, 474
F. Supp. 1256 , 1263 (Conn.1979):

															"[A]s private parties are permitted under Title VII itself to
adopt voluntary affirmative action plans, . . . Title VII should
not be construed to prohibit a municipality's using a hiring
process that results in a percentage of minority policemen
approximating their percentage of the local population, instead of
relying on the expectation that a validated job-related testing
procedure will produce an equivalent result, yet with the risk that
it might lead to substantially less minority hiring."

															Finding today's decision unfortunate in both its analytical
approach and its likely consequences, I dissent.

															[ Footnote 2/1 ] See also Teamsters v. United States, 431 U.
S. 324 , 431 U. S.
335 -336, n. 15 (1977) (similar explanation).

															[ Footnote 2/2 ] See Dothard v. Rawlinson, 433 U.
S. 321 , 433 U. S. 329 (1977) (statutory height and weight requirements operated as a bar
to employment of disproportionate number of women); Albemarle Paper Co. v. Moody, 422 U.
S. 405 , 422 U. S.
409 -411 (1975) (seniority system allegedly locked blacks
into lower paying jobs; applicants to skilled lines of progression
were required to pass two tests); Griggs v. Duke Power
Co., 401 U. S. 424 , 401 U. S. 431 (1971) (tests were an absolute bar to transfers or hiring; the
Court observed that all Congress requires is "the removal of
artificial, arbitrary, and unnecessary barriers to employment. . . .") (emphasis added).

															[ Footnote 2/3 ]

															Initially, the plaintiff bears the burden of establishing a prima facie case that Title VII has been infringed. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S.
252 -253 (1981). In a disparate impact case, this burden
is met by showing that an employer's selection process results in
the rejection of a disproportionate number of members of a
protected group. See Teamsters v. United States, supra, at 431 U. S.
336 -338. Regardless of whether the plaintiff's prima
facie case must itself focus on the defendant's overall
selection process or whether it is sufficient that the plaintiff
establish that at least one pass-fail barrier has resulted in
disparate impact, the employer's presentation of evidence showing
that its overall selection procedure does not operate in a
discriminatory fashion certainly dispels any inference of
discrimination. In such instances, at the close of the evidence,
the plaintiff has failed to show disparate impact by a
preponderance of the evidence.

															[ Footnote 2/4 ]

															The Equal Employment Opportunity Commission and other federal
enforcement agencies have adopted the "bottom-line" principle -- i.e., the process viewed as a whole -- in deciding when to
bring an action against an employer. See Uniform
Guidelines on Employee Selection Procedures, 5 CFR § 300.103(c)
(1981).

															[ Footnote 2/5 ]

															The Court concentrates on cases of questionable relevance. Most
of the lower courts that have squarely considered the question have
concluded that there can be no violation of Title VII on a
disparate impact basis when there is no disparate impact at the
bottom line. See, e.g., EEOC v. Greyhound Lines, Inc., 635
F.2d 188 (CA3 1980); EEOC v. Navajo Refining Co., 593 F.2d
988 (CA10 1979); Friend v. Leidinger, 588 F.2d 61, 66 (CA4
1978); Rule v. International Assn. of Ironworkers, 568
F.2d 558 (CA8 1977); Smith v. Troyan, 520 F.2d 492,
497-498 (CA6 1975), cert. denied, 426 U.S. 934 (1976); Williams v. City & County of San
Francisco, 483 F.
Supp. 335 (ND Cal.1979); Brown v. New Haven Civil Service
Board, 474 F.
Supp. 1256 (Conn.1979); Lee v. City of
Richmond, 456 F.
Supp. 756 (ED Va.1978).

															[ Footnote 2/6 ]

															The Court cites language from two other disparate impact cases.
The Court notes that, in Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975), the Court "remanded to allow the employer to attempt to
show that the tests . . . given . . . for promotion were
job-related." Ante at 457 U. S. 450 .
But the fact that the Court did so without suggesting "that, by
promoting a sufficient number of black employees who passed the
examination, the employer could avoid this burden," ibid., can hardly be precedent for the negative of that proposition when
the issue was neither presented in the facts of the case nor
addressed by the Court.

															Similarly, New York Transit Authority v. Beazer, 440 U. S. 568 (1979), provides little support despite the language quoted by the
Court. See ante at 457 U. S. 450 ,
quoting 440 U.S. at 440 U. S. 584 (" 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
added by the Court). In Beazer, the Court ruled that the
statistical evidence actually presented was insufficient to
establish a prima facie case of discrimination, and, in
doing so, it indicated that it would have found statistical
evidence of the number of applicants and employees in a methadone
program quite probative. See id. at 440 U. S. 585 . Beazer therefore does not justify the Court's speculation
that the number of blacks and Hispanics actually employed were
irrelevant to whether a case of disparate impact had been
established under Title VII. [ Footnote 2/7 ]

															Courts have recognized that the probative value of statistical
evidence varies with sample size in disparate impact cases. See, e.g., Teamsters v. United States, 431 U.S. at 431 U. S. 340 ,
n. 20 ("Considerations such as small sample size may, of course,
detract from the value of such evidence . . ."); Mayor of
Philadelphia v. Educational Equality League, 415 U.
S. 605 , 415 U. S. 621 (1974) ("[T]he District Court's concern for the smallness of the
sample presented by the 13-member Panel was . . . well founded"); Rogillio v. Diamond Shamrock Chemical Co., 446 F.
Supp. 423 , 427-428 (SD Tex.1978) (sample of 10 too small); Dendy v. Washington Hospital Center, 431 F.
Supp. 873 , 876 (DC 1977) (sample must be "large enough to
mirror the reality of the employment situation"). A sample of only
one would have far too little probative value to establish a prima facie case of disparate impact.

															[ Footnote 2/8 ]

															Another possibility is that employers may integrate
consideration of test results into one overall hiring decision
based on that "factor" and additional factors. Such a process would
not, even under the Court's reasoning, result in a finding of
discrimination on the basis of disparate impact unless the actual
hiring decisions had a disparate impact on the minority group. But
if employers integrate test results into a single-step decision,
they will be free to select only the number of minority
candidates proportional to their representation in the workforce.
If petitioners had used this approach, they would have been able to
hire substantially fewer blacks without liability on the basis of
disparate impact. The Court hardly could have intended to encourage
this.