U.S. Supreme Court Wards Cove Packing v. Atonio, 490 U.S.
642 (1989) Wards Cove Packing Co., Inc. v.
Atonio No. 87-1387 Argued January 18,
1989 Decided June 5, 1989 490 U.S. 642 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Jobs at petitioners' Alaskan salmon canneries are of two general
types: unskilled "cannery jobs" on the cannery lines, which are
filled predominantly by nonwhites; and "noncannery jobs," most of
which are classified as skilled positions and filled predominantly
with white workers, and virtually all of which pay more than
cannery positions. Respondents, a class of nonwhite cannery workers
at petitioners' facilities, filed suit in the District Court under
Title VII of the Civil Rights Act of 1964, alleging, inter
alia, that various of petitioners' hiring/promotion practices
were responsible for the workforce's racial stratification and had
denied them employment as noncannery workers on the basis of race.
The District Court rejected respondents' claims, finding, among
other things, that nonwhite workers were overrepresented in cannery
jobs because many of those jobs were filled under a hiring hall
agreement with a predominantly nonwhite union. The Court of Appeals
ultimately reversed in pertinent part, holding, inter
alia, that respondents had made out a prima facie case of disparate impact in hiring for both skilled and unskilled
noncannery jobs, relying solely on respondents' statistics showing
a high percentage of nonwhite workers in cannery jobs and a low
percentage of such workers in noncannery positions. The court also
concluded that, once a plaintiff class has shown disparate impact
caused by specific, identifiable employment practices or criteria,
the burden shifts to the employer to prove the challenged
practice's business necessity. Held: 1. The Court of Appeals erred in ruling that a comparison of the
percentage of cannery workers who are nonwhite and the percentage
of noncannery workers who are nonwhite makes out a prima
facie disparate impact case. Rather, the proper comparison is
generally between the racial composition of the at-issue jobs and
the racial composition of the qualified population in the relevant
labor market. Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S. 308 .
With respect to the skilled noncannery jobs at issue, the cannery
workforce in no way reflected the pool of job applicants or the qualified labor force population. Petitioners' selection
methods or employment practices cannot be said to have had a
disparate impact on nonwhites if Page 490 U. S. 643 the absence of minorities holding such skilled jobs reflects a
dearth of qualified nonwhite applicants for reasons that are not
petitioners' fault. With respect to the unskilled noncannery jobs,
as long as there are no barriers or practices deterring qualified
nonwhites from applying, the employer's selection mechanism
probably does not have a disparate impact on minorities if the
percentage of selected nonwhite applicants is not significantly
less than the percentage of qualified nonwhite applicants. Where
this is the case, the percentage of nonwhite workers found in other
positions in the employer's labor force is irrelevant to a prima facie statistical disparate impact case. Moreover,
isolating the cannery workers as the potential labor force for
unskilled noncannery jobs is both too broad -- because the majority
of cannery workers did not seek noncannery jobs -- and too narrow
-- because there are many qualified persons in the relevant labor
market who are not cannery workers. Under the Court of Appeals'
method of comparison, any employer having a racially imbalanced
segment of its workforce could be haled into court and made to
undertake the expensive and time-consuming task of defending the
business necessity of its selection methods. For many employers,
the only practicable option would be the adoption of racial quotas,
which has been rejected by this Court and by Congress in drafting
Title VII. The Court of Appeals' theory is also flawed because, if
minorities are overrepresented in cannery jobs by virtue of
petitioners' having contracted with a predominantly nonwhite union
to fill those positions, as the District Court found, petitioners
could eliminate respondents' prima facie case simply by
ceasing to use the union, without making any change
whatsoever in their hiring practices for the noncannery
positions at issue. Pp. 490 U. S.
650 -655.

															2. On remand for a determination whether the record will support
a prima facie disparate impact case on some basis other
than the racial disparity between cannery and noncannery workers, a
mere showing that nonwhites are underrepresented in the at-issue
jobs in a manner that is acceptable under the standards set forth
herein will not alone suffice. Rather, the courts below must also
require, as part of respondents' prima facie case, a
demonstration that the statistical disparity complained of is the
result of one or more of the employment practices respondents are
attacking here, specifically showing that each challenged practice
has a significantly disparate impact on employment opportunities
for whites and nonwhites. This specific causation requirement is
not unduly burdensome, since liberal discovery rules give
plaintiffs broad access to employers' records, and since employers
falling within the scope of the Uniform Guidelines on Employee
Selection Procedures must maintain records disclosing the impact of
tests and selection procedures Page 490 U. S. 644 on employment opportunities of persons by identifiable race,
sex, or ethnic group. Pp. 490 U. S.
656 -658.

															3. If, on remand, respondents establish a prima facie disparate impact case with respect to any of petitioners'
practices, the burden of producing evidence of a legitimate
business justification for those practices will shift to
petitioners, but the burden of persuasion will remain with
respondents at all times. This rule conforms with the usual method
for allocating persuasion and production burdens in the federal
courts and with the rule in disparate treatment cases that the
plaintiff bears the burden of disproving an employer's assertion
that the adverse employment practice was based solely on a
legitimate, neutral consideration. See Texas Dept. of Community
Affairs v. Burdine, 450 U. S. 248 , 450 U. S.
256 -258. To the extent that some of this Court's
decisions speak of an employer's "burden of proof" with respect to
the business justification defense, they should be understood to
mean an employer's burden of production, not persuasion. Even if
respondents cannot persuade the trier of fact on the business
necessity question, they may still prevail by coming forward with
alternatives that reduce the disparate impact of petitioners'
current practices, provided such alternatives are equally effective
in achieving petitioners' legitimate employment goals in light of
the alternatives' costs and other burdens. Pp. 490 U. S.
658 -661.

															827 F. 2d 439, reversed and remanded.

															WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 490 U. S. 661 .
STEVENS, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and BLACKMUN, JJ., joined, post, p. 490 U. S.
662 . Page 490 U. S. 645 JUSTICE WHITE delivered the opinion of the Court.

															Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U.S.C. §2000e et seq., makes it an unfair
employment practice for an employer to discriminate against any
individual with respect to hiring or the terms and condition of
employment because of such individual's race, color, religion, sex,
or national origin; or to limit, segregate, or classify his
employees in ways that would adversely affect any employee because
of the employee's race, color, religion, sex, or national origin.
[ Footnote 1 ] § 2000e-2(a). Griggs v. Duke Power Co., 401 U.
S. 424 , 401 U. S. 431 (1971), construed Title VII to proscribe "not only overt
discrimination, but also practices that are fair in form, but
discriminatory in practice." Under this basis for liability, which
is known as the "disparate impact" theory and which is involved in
this case, a facially neutral Page 490 U. S. 646 employment practice may be deemed violative of Title VII without
evidence of the employer's subjective intent to discriminate that
is required in a "disparate treatment" case. I The claims before us are disparate impact claims, involving the
employment practices of petitioners, two companies that operate
salmon canneries in remote and widely separated areas of Alaska.
The canneries operate only during the salmon runs in the summer
months. They are inoperative and vacant for the rest of the year.
In May or June of each year, a few weeks before the salmon runs
begin, workers arrive and prepare the equipment and facilities for
the canning operation. Most of these workers possess a variety of
skills. When salmon runs are about to begin, the workers who will
operate the cannery lines arrive, remain as long as there are fish
to can, and then depart. The canneries are then closed down,
winterized, and left vacant until the next spring. During the
off-season, the companies employ only a small number of individuals
at their headquarters in Seattle and Astoria, Oregon, plus some
employees at the winter shipyard in Seattle.

															The length and size of salmon runs vary from year to year, and
hence the number of employees needed at each cannery also varies.
Estimates are made as early in the winter as possible; the
necessary employees are hired, and when the time comes, they are
transported to the canneries. Salmon must be processed soon after
they are caught, and the work during the canning season is
therefore intense. [ Footnote 2 ]
For this Page 490 U. S. 647 reason, and because the canneries are located in remote regions,
all workers are housed at the canneries and have their meals in
company-owned mess halls.

															Jobs at the canneries are of two general types: "cannery jobs"
on the cannery line, which are unskilled positions; and "noncannery
jobs," which fall into a variety of classifications. Most
noncannery jobs are classified as skilled positions. [ Footnote 3 ] Cannery jobs are filled
predominantly by nonwhites: Filipinos and Alaska Natives. The
Filipinos are hired through, and dispatched by, Local 37 of the
International Longshoremen's and Warehousemen's Union pursuant to a
hiring hall agreement with the local. The Alaska Natives primarily
reside in villages near the remote cannery locations. Noncannery
jobs are filled with predominantly white workers, who are hired
during the winter months from the companies' offices in Washington
and Oregon. Virtually all of the noncannery jobs pay more than
cannery positions. The predominantly white noncannery workers and
the predominantly nonwhite cannery employees live in separate
dormitories and eat in separate mess halls.

															In 1974, respondents, a class of nonwhite cannery workers who
were (or had been) employed at the canneries, brought this Title
VII action against petitioners. Respondents alleged that a variety
of petitioners' hiring/promotion practices -- e. g., nepotism, a
rehire preference, a lack of objective hiring criteria, separate
hiring channels, a practice of not promoting from within -- were
responsible for the racial stratification Page 490 U. S. 648 of the workforce, and had denied them and other nonwhites
employment as noncannery workers on the basis of race. Respondents
also complained of petitioners' racially segregated housing and
dining facilities. All of respondents' claims were advanced under
both the disparate treatment and disparate impact theories of Title
VII liability.

															The District Court held a bench trial, after which it entered
172 findings of fact. App. to Pet. for Cert. I-1 to I-94. It then
rejected all of respondents' disparate treatment claims. It also
rejected the disparate impact challenges involving the subjective
employment criteria used by petitioners to fill these noncannery
positions, on the ground that those criteria were not subject to
attack under a disparate impact theory. Id. at I-102.
Petitioners' "objective" employment practices ( e.g., an
English language requirement, alleged nepotism in hiring, failure
to post noncannery openings, the rehire preference, etc.) were
found to be subject to challenge under the disparate impact theory,
but these claims were rejected for failure of proof. Judgment was
entered for petitioners.

															On appeal, a panel of the Ninth Circuit affirmed, 768 F.2d 1120
(1985), but that decision was vacated when the Court of Appeals
agreed to hear the case en banc, 787 F.2d 462 (1985). The en banc hearing was ordered to settle an intracircuit
conflict over the question whether subjective hiring practices
could be analyzed under a disparate impact model; the Court of
Appeals held -- as this Court subsequently ruled in Watson v.
Fort Worth Bank & Trust, 487 U. S. 977 (1988) -- that disparate impact analysis could be applied to
subjective hiring practices. 810 F.2d 1477, 1482 (1987). The Ninth
Circuit also concluded that, in such a case,

															"[o]nce the plaintiff class has shown disparate impact caused by
specific, identifiable employment practices or criteria, the burden
shifts to the employer," id. at 1485, to "prov[e the] business necessity" of the
challenged practice, id. at 1486. Because the en
banc holding on subjective employment practices reversed Page 490 U. S. 649 the District Court's contrary ruling, the en banc Court
of Appeals remanded the case to a panel for further
proceedings.

															On remand, the panel applied the en banc ruling to the
facts of this case. 827 F.2d 439 (1987). It held that respondents
had made out a prima facie case of disparate impact in
hiring for both skilled and unskilled noncannery positions. The
panel remanded the case for further proceedings, instructing the
District Court that it was the employer's burden to prove that any
disparate impact caused by its hiring and employment practices was
justified by business necessity. Neither the en banc court
nor the panel disturbed the District Court's rejection of the
disparate treatment claims. [ Footnote 4 ]

															Petitioners sought review of the Court of Appeals' decision in
this Court, challenging it on several grounds. Because some of the
issues raised by the decision below were matters Page 490 U. S. 650 on which this Court was evenly divided in Watson v. Fort Worth
Bank & Trust, supra, we granted certiorari, 487 U.S. 1264
(1988), for the purpose of addressing these disputed questions of
the proper application of Title VII's disparate impact theory of
liability. II In holding that respondents had made out a prima facie case of disparate impact, the Court of Appeals relied solely on
respondents' statistics showing a high percentage of nonwhite
workers in the cannery jobs and a low percentage of such workers in
the noncannery positions. [ Footnote
5 ] Although statistical proof can alone make out a prima
facie case, see Teamsters v. United States, 431 U. S. 324 , 431 U. S. 339 (1977); Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S.
307 -308 (1977), the Court of Appeals' ruling here
misapprehends our precedents and the purposes of Title VII, and we
therefore reverse.

															"There can be no doubt," as there was when a similar mistaken
analysis had been undertaken by the courts below in Hazelwood,
supra, at 433 U. S. 308 ,
"that the . . . comparison . . . fundamentally misconceived the
role of statistics in employment discrimination cases." The

															"proper comparison [is] between the racial composition of [the
at-issue jobs] and the racial composition of the qualified . . .
population in the relevant labor market." Ibid. It is such a comparison -- between the racial
composition of the qualified persons in the labor market and the
persons holding at-issue jobs -- that generally forms Page 490 U. S. 651 the proper basis for the initial inquiry in a disparate impact
case. Alternatively, in cases where such labor market statistics
will be difficult if not impossible to ascertain, we have
recognized that certain other statistics -- such as measures
indicating the racial composition of "otherwise-qualified
applicants" for at-issue jobs -- are equally probative for this
purpose. See, e.g., New York City Transit Authority v.
Beazer, 440 U. S. 568 , 440 U. S. 585 (1979). [ Footnote 6 ]

															It is clear to us that the Court of Appeals' acceptance of the
comparison between the racial composition of the cannery workforce
and that of the noncannery workforce, as probative of a prima
facie case of disparate impact in the selection of the latter
group of workers, was flawed for several reasons. Most obviously,
with respect to the skilled noncannery jobs at issue here, the
cannery workforce in no way reflected "the pool of qualified job applicants" or the " qualified population in the labor force." Measuring alleged discrimination in
the selection of accountants, managers, boat captains,
electricians, doctors, and engineers -- and the long list of other
"skilled" noncannery positions found to exist by the District
Court, see App. to Pet. for Cert. I-56 to I-58 -- by
comparing the number of nonwhites occupying these jobs to the
number of nonwhites filling cannery worker positions is
nonsensical. If the absence of minorities holding such skilled
positions is due to a dearth of qualified nonwhite applicants (for
reasons that are not petitioners' fault), [ Footnote 7 ] Page 490 U. S. 652 petitioners' selection methods or employment practices cannot be
said to have had a "disparate impact" on nonwhites.

															One example illustrates why this must be so. Respondents' own
statistics concerning the noncannery workforce at one of the
canneries at issue here indicate that approximately 17% of the new
hires for medical jobs, and 15% of the new hires for officer worker
positions, were nonwhite. See App. to Brief for
Respondents B-l. If it were the case that less than 15 to 17% of
the applicants for these jobs were nonwhite and that nonwhites made
up a lower percentage of the relevant qualified labor market, it is
hard to see how respondents, without more, cf. Connecticut v.
Teal, 457 U. S. 440 (1982), would have made out a prima facie case of
disparate impact. Yet, under the Court of Appeals' theory, simply
because nonwhites comprise 52% of the cannery workers at the
cannery in question, see App. to Brief for Respondents
B-1, respondents would be successful in establishing a prima
facie case of racial discrimination under Title VII.

															Such a result cannot be squared with our cases or with the goals
behind the statute. The Court of Appeals' theory, at the very
least, would mean that any employer who had a segment of his
workforce that was -- for some reason -- racially imbalanced, could
be haled into court and forced to engage in the expensive and
time-consuming task of defending the "business necessity" of the
methods used to select the other members of his workforce. The only
practicable option for many employers would be to adopt racial
quotas, insuring that no portion of their workforces deviated in
racial composition from the other portions thereof; this is a
result that Congress expressly rejected in drafting Title VII. See 42 U.S. C. § 2000e-2(j); see also Watson v. Fort
Worth Bank & Trust, 487 U.S. at 487 U. S.
922 -994, and n. 2 (opinion of O'CONNOR, J.). The Court
of Appeals' theory would "leave the employer little choice . . .
but to engage in a subjective quota system of employment selection.
This, of course, is far from the intent of Title VII." Albemarle Paper Co. v.
Moody, Page 490 U. S. 653 422 U. S. 405 , 422 U. S. 449 (1975) (BLACKMUN, J., concurring in judgment).

															The Court of Appeals also erred with respect to the unskilled
noncannery positions. Racial imbalance in one segment of an
employer's workforce does not, without more, establish a prima
facie case of disparate impact with respect to the selection
of workers for the employer's other positions, even where workers
for the different positions may have somewhat fungible skills (as
is arguably the case for cannery and unskilled noncannery workers).
As long as there are no barriers or practices deterring qualified
nonwhites from applying for noncannery positions, see n 6, supra, if the
percentage of selected applicants who are nonwhite is not
significantly less than the percentage of qualified applicants who
are nonwhite, the employer's selection mechanism probably does not
operate with a disparate impact on minorities [ Footnote 8 ] Where this is the case, the percentage
of nonwhite workers found in other positions in the employer's
labor force is irrelevant to the question of a prima facie statistical case of disparate impact. As noted above, a contrary
ruling on this point would almost inexorably lead to the use of
numerical quotas in the workplace, a result that Congress and this
Court have rejected repeatedly in the past.

															Moreover, isolating the cannery workers as the potential "labor
force" for unskilled noncannery positions is at once both too broad
and too narrow in its focus. It is too broad because the vast
majority of these cannery workers did not Page 490 U. S. 654 seek jobs in unskilled noncannery positions; there is no showing
that many of them would have done so even if none of the arguably
"deterring" practices existed. Thus, the pool of cannery workers
cannot be used as a surrogate for the class of qualified job
applicants, because it contains many persons who have not (and
would not) be noncannery job applicants. Conversely, if respondents
propose to use the cannery workers for comparison purposes because
they represent the "qualified labor population" generally, the
group is too narrow, because there are obviously many qualified
persons in the labor market for noncannery jobs who are not cannery
workers.

															The peculiar facts of this case further illustrate why a
comparison between the percentage of nonwhite cannery workers and
nonwhite noncannery workers is an improper basis for making out a
claim of disparate impact. Here, the District Court found that
nonwhites were "overrepresent[ed]" among cannery workers because
petitioners had contracted with a predominantly nonwhite union
(local 37) to fill these positions. See App. to Pet. for
Cert. I-42. As a result, if petitioners (for some permissible
reason) ceased using local 37 as its hiring channel for cannery
positions, it appears (according to the District Court's findings)
that the racial stratification between the cannery and noncannery
workers might diminish to statistical insignificance. Under the
Court of Appeals' approach, therefore, it is possible that, with no change whatsoever in their hiring practices for
noncannery workers -- the jobs at issue in this lawsuit --
petitioners could make respondents' prima facie case of
disparate impact "disappear." But if there would be no prima
facie case of disparate impact in the selection of noncannery
workers absent petitioners' use of local 37 to hire cannery
workers, surely petitioners' reliance on the union to fill the
cannery jobs not at issue here (and its resulting
"overrepresentation" of nonwhites in those positions) does not --
standing alone -- make out a prima facie case of disparate
impact. Yet it is precisely Page 490 U. S. 655 such an ironic result that the Court of Appeals reached
below.

															Consequently, we reverse the Court of Appeals' ruling that a
comparison between the percentage of cannery workers who are
nonwhite and the percentage of noncannery workers who are nonwhite
makes out a prima facie case of disparate impact. Of
course, this leaves unresolved whether the record made in the
District Court will support a conclusion that a prima
facie case of disparate impact has been established on some
basis other than the racial disparity between cannery and
noncannery workers. This is an issue that the Court of Appeals or
the District Court should address in the first instance. III Since the statistical disparity relied on by the Court of
Appeals did not suffice to make out a prima facie case,
any inquiry by us into whether the specific challenged employment
practices of petitioners caused that disparity is pretermitted, as
is any inquiry into whether the disparate impact that any
employment practice may have had was justified by business
considerations. [ Footnote 9 ]
Because we remand for further proceedings, however, on whether a prima facie case of disparate impact has been made in
defensible fashion in this case, we address two other challenges
petitioners have made to the decision of the Court of Appeals. Page 490 U. S. 656 A First is the question of causation in a disparate impact case.
The law in this respect was correctly stated by JUSTICE O'CONNOR'S
opinion last Term in Watson v. Fort Worth Bank &
Trust, 487 U.S. at 487 U. S.
994 :

															"[W]e 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. . . . 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. also id. at 487 U. S.
1000 (BLACKMUN, J., concurring in part and concurring in
judgment).

															Indeed, even the Court of Appeals -- whose decision petitioners
assault on this score -- noted that "it is . . . essential that the
practices identified by the cannery workers be linked causally with
the demonstrated adverse impact." 827 F.2d at 445. Notwithstanding
the Court of Appeals' apparent adherence to the proper inquiry,
petitioners contend that that court erred by permitting respondents
to make out their case by offering

															"only [one] set of cumulative comparative statistics as evidence
of the disparate impact of each and all of [petitioners' hiring]
practices."

															Brief for Petitioners 31.

															Our disparate impact cases have always focused on the impact of particular hiring practices on employment opportunities
for minorities. Just as an employer cannot escape liability under
Title VII by demonstrating that, "at the bottom line," his
workforce is racially balanced (where particular hiring practices
may operate to deprive minorities of employment opportunities), see Connecticut v. Teal, 457 U.S. at Page 490 U. S. 657 457 U. S. 450 ,
a Title VII plaintiff does not make out a case of disparate impact
simply by showing that, "at the bottom line," there is racial imbalance in the workforce. As a general matter, a
plaintiff must demonstrate that it is the application of a specific
or particular employment practice that has created the disparate
impact under attack. Such a showing is an integral part of the
plaintiff's prima facie case in a disparate impact suit
under Title VII.

															Here, respondents have alleged that several "objective"
employment practices ( e.g., nepotism, separate hiring
channels, rehire preferences), as well as the use of "subjective
decision making" to select noncannery workers, have had a disparate
impact on nonwhites. Respondents base this claim on statistics that
allegedly show a disproportionately low percentage of nonwhites in
the at-issue positions. However, even if, on remand, respondents
can show that nonwhites are underrepresented in the at-issue jobs
in a manner that is acceptable under the standards set forth in
Part II, supra, this alone will not suffice to make out a prima facie case of disparate impact. Respondents will
also have to demonstrate that the disparity they complain of is the
result of one or more of the employment practices that they are
attacking here, specifically showing that each challenged practice
has a significantly disparate impact on employment opportunities
for whites and nonwhites. To hold otherwise would result in
employers being potentially liable for "the myriad of innocent
causes that may lead to statistical imbalances in the composition
of their workforces." Watson v. Fort Worth Bank & Trust,
supra, at 487 U. S.
992 .

															Some will complain that this specific causation requirement is
unduly burdensome on Title VII plaintiffs. But liberal civil
discovery rules give plaintiffs broad access to employers' records
in an effort to document their claims. Also, employers falling
within the scope of the Uniform Guidelines on Employee Selection
Procedures, 29 CFR §1607.1 et seq. (1988), Page 490 U. S. 658 are required to

															"maintain . . . records or other information which will disclose
the impact which its tests and other selection procedures have upon
employment opportunities of persons by identifiable race, sex, or
ethnic group[s]." See §1607.4(A). This includes records concerning "the
individual components of the selection process" where there is a
significant disparity in the selection rates of whites and
nonwhites. See §1607.4(C). Plaintiffs as a general matter
will have the benefit of these tools to meet their burden of
showing a causal link between challenged employment practices and
racial imbalances in the workforce; respondents presumably took
full advantage of these opportunities to build their case before
the trial in the District Court was held. [ Footnote 10 ]

															Consequently, on remand, the courts below are instructed to
require, as part of respondents' prima facie case, a
demonstration that specific elements of the petitioners' hiring
process have a significantly disparate impact on nonwhites. B If, on remand, respondents meet the proof burdens outlined
above, and establish a prima facie case of disparate
impact with respect to any of petitioners' employment practices,
the case will shift to any business justification petitioners offer
for their use of these practices. This phase of the disparate
impact case contains two components: first, a consideration of the
justifications an employer offers for his use of these practices;
and second, the availability of alternative practices to achieve
the same business ends, with less racial impact. See, e.g.,
Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 425 .
We consider these two components in turn. Page 490 U. S. 659 (1) Though we have phrased the query differently in different cases,
it is generally well established that, at the justification stage
of such a disparate impact case, the dispositive issue is whether a
challenged practice serves, in a significant way, the legitimate
employment goals of the employer. See, e.g., Watson v. Fort
Worth Bank & Trust, 487 U.S. at 487 U. S.
997 -999; New York City Transit Authority v.
Beazer, 440 U.S. at 440 U. S. 587 ,
n. 31; Griggs v. Duke Power Co., 401 U.S. at 401 U. S.
432 . The touchstone of this inquiry is a reasoned
review of the employer's justification for his use of the
challenged practice. A mere insubstantial justification in this
regard will not suffice, because such a low standard of review
would permit discrimination to be practiced through the use of
spurious, seemingly neutral employment practices. At the same time,
though, there is no requirement that the challenged practice be
"essential" or "indispensable" to the employer's business for it to
pass muster: this degree of scrutiny would be almost impossible for
most employers to meet, and would result in a host of evils we have
identified above. See supra at 490 U. S.
652 -653.

															In this phase, the employer carries the burden of producing
evidence of a business justification for his employment practice.
The burden of persuasion, however, remains with the disparate
impact plaintiff. To the extent that the Ninth Circuit held
otherwise in its en banc decision in this case, see 810 F.2d at 1485-1486, or in the panel's decision on
remand, see 827 F.2d at 445, 447 -- suggesting that the
persuasion burden should shift to petitioners once respondents
established a prima facie case of disparate impact -- its
decisions were erroneous.

															"[T]he 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. " Watson, supra, at 487 U. S. 997 (O'CoNNOR, J.) (emphasis added). This rule conforms with the usual
method for allocating persuasion and production burdens Page 490 U. S. 660 in the federal courts, see Fed.Rule Evid. 301, and more
specifically, it conforms to the rule in disparate treatment cases
that the plaintiff bears the burden of disproving an employer's
assertion that the adverse employment action or practice was based
solely on a legitimate neutral consideration. See Texas Dept.
of Community Affairs v. Burdine, 450 U.
S. 248 , 450 U. S.
256 -258 (1981). We acknowledge that some of our earlier
decisions can be read as suggesting otherwise. See Watson,
supra, at 487 U. S.
1006 -1008 (BLACKMUN, J., concurring). But to the extent
that those cases speak of an employer's "burden of proof " with
respect to a legitimate business justification defense, see,
e.g., Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 (1977), they should have been understood to mean an employer's
production -- but not persuasion -- burden. Cf., e.g., NLRB v.
Transportation Management Corp., 462 U.
S. 393 , 462 U. S. 404 ,
n. 7 (1983). The persuasion burden here must remain with the
plaintiff, for it is he who must prove that it was "because of such
individual's race, color," etc., that he was denied a desired
employment opportunity. See 42 U.S. C. §2000e-2(a). (2) Finally, if on remand the case reaches this point, and
respondents cannot persuade the trier of fact on the question of
petitioners' business necessity defense, respondents may still be
able to prevail. To do so, respondents will have to persuade the
factfinder that

															"other tests or selection devices, without a similarly
undesirable racial effect, would also serve the employer's
legitimate [hiring] interest[s];"

															by so demonstrating, respondents would prove that "[petitioners
were] using [their] tests merely as a pretext' for
discrimination." Albemarle Paper Co., supra, at 422 U. S. 425 ; see also Watson, 487 U.S. at 487 U. S. 998 (O'CONNOR, J.); id. at 487 U. S.
1005 -1006 (BLACKMUN, J., concurring in part and
concurring in judgment). If respondents, having established a prima facie case, come forward with alternatives to
petitioners' hiring practices that Page 490 U. S. 661 reduce the racially disparate impact of practices currently
being used, and petitioners refuse to adopt these alternatives,
such a refusal would belie a claim by petitioners that their
incumbent practices are being employed for nondiscriminatory
reasons.

															Of course, any alternative practices which respondents offer up
in this respect must be equally effective as petitioners' chosen
hiring procedures in achieving petitioners' legitimate employment
goals. Moreover,

															"[f]actors 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." Watson, supra, at 487 U. S. 998 (O'CONNOR, J.). "Courts are generally less competent than employers
to restructure business practices," Furnco Construction Corp.
v. Waters, 438 U. S. 567 , 438 U. S. 578 (1978); consequently, the judiciary should proceed with care before
mandating that an employer must adopt a plaintiff 's alternative
selection or hiring practice in response to a Title VII suit. IV For the reasons given above, the judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ]

															Title 42 U.S.C. § 2000e-2(a), 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."

															[ Footnote 2 ]

															"Independent fishermen catch the salmon and turn them over to
company-owned boats called 'tenders,' which transport the fish from
the fishing grounds to the canneries. Once at the cannery, the fish
are eviscerated, the eggs pulled, and they are cleaned. Then,
operating at a rate of approximately four cans per second, the
salmon are filled into cans. Next, the canned salmon are cooked
under precise time-temperature requirement established by the FDA,
and the cans are inspected to ensure that proper seals are
maintained on the top, bottom and sides."

															768 F. 2d 1120, 1123, vacated, 787 F. 2d 462 (CA9
1985).

															[ Footnote 3 ]

															The noncannery jobs were described as follows by the Court of
Appeals:

															"Machinists and engineers are hired to maintain the smooth and
continuous operation of the canning equipment. Quality control
personnel conduct the FDA-required inspections and recordkeeping.
Tenders are staffed with a crew necessary to operate the vessel. A
variety of support personnel are employed to operate the entire
cannery community, including, for example, cooks, carpenters,
storekeepers, bookkeepers, beach gangs for dock yard labor and
construction, etc."

															768 F. 2d at 1123.

															[ Footnote 4 ]

															The fact that neither the District Court, nor the Ninth Circuit en banc , nor the subsequent Court of Appeals panel ruled
for respondents on their disparate treatment claims -- i.e., their allegations of intentional racial
discrimination -- warrants particular attention in light of the
dissents' comment that the canneries "bear an unsettling
resemblance to aspects of a plantation economy." Post at 490 U. S. 664 ,
n. 4 (STEVENS, J., dissenting); post at 490 U. S. 662 (BLACKMUN, J., dissenting).

															Whatever the "resemblance," the unanimous view of the lower
courts in this litigation has been that respondents did not prove
that the canneries practice intentional racial discrimination.
Consequently, JUSTICE BLACKMUN's hyperbolic allegation that our
decision in this case indicates that this Court no longer "believes
that race discrimination . . . against nonwhites . . . is a problem
in our society," post at 490 U. S. 662 ,
is inapt. Of course, it is unfortunately true that race
discrimination exists in our country. That does not mean, however,
that it exists at the canneries -- or more precisely, that it has
been proved to exist at the canneries.

															Indeed, JUSTICE STEVENS concedes that respondents did not press
before us the legal theories under which the aspects of cannery
life that he finds to most resemble a "plantation economy" might be
unlawful. Post at 490 U. S. 664 , n. 4. Thus, the question here is not
whether we "approve" of petitioners' employment practices or the
society that exists at the canneries, but, rather, whether
respondents have properly established that these practices violate
Title VII.

															[ Footnote 5 ]

															The parties dispute the extent to which there is a discrepancy
between the percentage of nonwhites employed as cannery workers and
those employed in noncannery positions. Compare, e.g., Brief for Petitioners 4-9 with Brief for Respondents 4-6.
The District Court made no precise numerical findings in this
regard, but simply noted that there were "significant disparities
between the at-issue jobs [ i.e., noncannery jobs] and the
total workforce at the canneries" which were explained by the fact
that "nearly all employed in the cannery worker' department are
nonwhite." See App. to Pet. for Cert. I-111,
I-42. For reasons explained below, the degree of disparity between
these groups is not relevant to our decision here.

															[ Footnote 6 ]

															In fact, where "figures for the general population might . . .
accurately reflect the pool of qualified job applicants," cf.
Teamsters v. United States, 431 U. S. 324 , 431 U. S. 340 ,
n. 20 (1977), we have even permitted plaintiffs to rest their prima facie cases on such statistics as well. See,
e.g., Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S.
329 -330 (1977).

															[ Footnote 7 ]

															Obviously, the analysis would be different if it were found that
the dearth of qualified nonwhite applicants was due to practices on
petitioners' part which -- expressly or implicitly -- deterred
minority group members from applying for noncannery positions. See, e.g., Teamsters v. United States, supra, at 431 U. S.
365 .

															[ Footnote 8 ]

															We qualify this conclusion -- observing that it is only
"probable" that there has been no disparate impact on minorities in
such circumstances -- because bottom-line racial balance is not a
defense under Title VII. See Connecticut v. Teal, 457 U. S. 440 (1982). Thus, even if petitioners could show that the percentage of
selected applicants who are nonwhite is not significantly less than
the percentage of qualified applicants who are nonwhite,
respondents would still have a case under Title VII, if they could
prove that some particular hiring practice has a disparate impact
on minorities, notwithstanding the bottom-line racial balance in
petitioners' workforce. See Teal, supra, at 457 U. S. 450 ; see also n 8, infra. [ Footnote 9 ]

															As we understand the opinions below, the specific employment
practices were challenged only insofar as they were claimed to have
been responsible for the overall disparity between the number of
minority cannery and noncannery workers. The Court of Appeals did
not purport to hold that any specified employment practice produced
its own disparate impact that was actionable under Title VII. This
is not to say that a specific practice, such as nepotism, if it
were proved to exist, could not itself be subject to challenge if
it had a disparate impact on minorities. Nor is it to say that
segregated dormitories and eating facilities in the workplace may
not be challenged under 42 U.S. C. § 2000e-2(a)(2) without showing
a disparate impact on hiring or promotion.

															[ Footnote 10 ]

															Of course, petitioners' obligation to collect or retain any of
these data may be limited by the Guidelines themselves. See 29 CFR §1602.14(b) (1988) (exempting "seasonal" jobs
from certain recordkeeping requirements).

															JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting.

															I fully concur in JUSTICE STEVENS' analysis of this case. Today
a bare majority of the Court takes three major strides backwards in
the battle against race discrimination. It reaches out to make last
Term's plurality opinion in Watson v. Fort Worth Bank &
Trust, 487 U. S. 977 (1988), the law, thereby upsetting the longstanding distribution of
burdens of proof in Title VII disparate impact cases. It bars the
use of internal workforce comparisons in the making of a prima Page 490 U. S. 662 facie case of discrimination, even where the structure
of the industry in question renders any other statistical
comparison meaningless. And it requires practice-by-practice
statistical proof of causation, even where, as here, such proof
would be impossible.

															The harshness of these results is well demonstrated by the facts
of this case. The salmon industry as described by this record takes
us back to a kind of overt and institutionalized discrimination we
have not dealt with in years: a total residential and work
environment organized on principles of racial stratification and
segregation, which, as JUSTICE STEVENS points out, resembles a
plantation economy. Post at 490 U. S. 664 ,
n. 4. This industry long has been characterized by a taste for
discrimination of the old-fashioned sort: a preference for hiring
nonwhites to fill its lowest level positions, on the condition that
they stay there. The majority's legal rulings essentially immunize
these practices from attack under a Title VII disparate impact
analysis.

															Sadly, this comes as no surprise. One wonders whether the
majority still believes that race discrimination -- or, more
accurately, race discrimination against nonwhites -- is a problem
in our society, or even remembers that it ever was. Cf.
Richmond v. J. A. Croson Co., 488 U.
S. 469 (1989).

															JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE BLACKMUN join, dissenting.

															Fully 18 years ago, this Court unanimously held that Title VII
of the Civil Rights Act of 1964 [ Footnote 2/1 ] prohibits employment practices that have
discriminatory effects, as well as those that are intended to
discriminate. Griggs v. Duke Power Co., 401 U.
S. 424 (1971). Federal courts and agencies consistently
have enforced that interpretation, thus promoting our national goal
of eliminating barriers that define economic opportunity not by
aptitude and ability, but by race, color, national Page 490 U. S. 663 origin, and other traits that are easily identified but utterly
irrelevant to one's qualification for a particular job. [ Footnote 2/2 ] Regrettably, the Court
retreats from these efforts in its review of an interlocutory
judgment respecting the "peculiar facts" of this lawsuit. [ Footnote 2/3 ] Turning a blind eye to the
meaning and purpose of Title VII, the majority's opinion
perfunctorily rejects a longstanding rule of law and underestimates
the probative value of evidence of a racially stratified workforce.
[ Footnote 2/4 ] I cannot join this
latest sojourn into judicial activism. Page 490 U. S. 664 I I would have thought it superfluous to recount at this late date
the development of our Title VII jurisprudence, but the majority's
facile treatment of settled law necessitates such a primer. This
Court initially considered the meaning of Title VII in Griggs
v. Duke Power Co., 401 U. S. 424 (1971), in which a class of utility company employees challenged
the conditioning of entry into higher paying jobs upon a high
school education or passage of two written tests. Despite evidence
that "these two requirements operated to render ineligible a
markedly disproportionate number of Negroes," [ Footnote 2/5 ] the Court of Appeals had held that
because Page 490 U. S. 665 there was no showing of an intent to discriminate on account of
race, there was no Title VII violation. Id. at 401 U. S. 429 .
Chief Justice Burger's landmark opinion established that an
employer may violate the statute even when acting in complete good
faith without any invidious intent. [ Footnote 2/6 ] Focusing on § 703(a)(2), [ Footnote 2/7 ] he explained:

															"The objective of Congress in the enactment of Title VII is
plain from the language of the statute. It was to achieve equality
of employment opportunities and remove barriers that have operated
in the past to favor an identifiable group of white employees over
other employees. Under the Act, practices, procedures, or tests
neutral on their face, and even neutral in terms of intent, cannot
be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Griggs, 401 U.S. at 401 U. S.
429 -430.

															The opinion in Griggs made it clear that a neutral
practice that operates to exclude minorities is nevertheless lawful
if it serves a valid business purpose. "The touchstone is business
necessity," the Court stressed. Id. at 401 U. S. 431 .
Because

															"Congress directed the thrust of the Act to the consequences of employment practices, not simply the
motivation[,] . . . Congress has placed on the employer the burden
of showing Page 490 U. S. 666 that any given requirement must have a manifest relationship to
the employment in question. [ Footnote
2/8 ]" Id. at 401 U. S. 432 (emphasis in original). Congress has declined to act -- as the
Court now sees fit -- to limit the reach of this "disparate impact"
theory, see Teamsters v. United States, 431 U.
S. 324 , 431 U. S. 335 ,
n. 15 (1977); indeed, it has extended its application. [ Footnote 2/9 ] This approval lends added
force to the Griggs holding.

															The Griggs framework, with its focus on ostensibly
neutral qualification standards, proved inapposite for analyzing an
individual employee's claim, brought under § 703(a)(1), [ Footnote 2/10 ] that an employer
intentionally discriminated on account of race. [ Footnote 2/11 ] Page 490 U. S. 667 The means for determining intent absent direct evidence was
outlined in McDonnell Douglas Corp. v. Green, 411 U.
S. 792 (1973), and Texas Dept. of Community Affairs
v. Burdine, 450 U. S. 248 (1981), two opinions written by Justice Powell for unanimous
Courts. In such a "disparate treatment" case, see
Teamsters, 431 U.S. at 431 U. S. 335 ,
n. 15, the plaintiff's initial burden, which is "not onerous," 450
U.S. at 450 U. S. 253 ,
is to establish "a prima facie case of racial
discrimination," 411 U.S. at 411 U. S. 802 ;
that is, to create a presumption of unlawful discrimination by
"eliminat[ing] the most common nondiscriminatory reasons for the
plaintiff's rejection." [ Footnote
2/12 ] 450 U.S. at 450 U. S. 254 .
"The burden then must shift to the employer to articulate some
legitimate, nondiscriminatory reason for the employee's rejection."
411 U.S. at 411 U. S. 802 ; see 450 U.S. at 450 U. S. 254 .
Finally, Page 490 U. S. 668 because

															"Title VII does not . . . permit [the employer] to use [the
employee's] conduct as a pretext for the sort of discrimination
prohibited by § 703(a)(1),"

															the employee

															"must be given a full and fair opportunity to demonstrate by
competent evidence that the presumptively valid reasons for his
rejection were in fact a coverup for a racially discriminatory
decision."

															411 U.S. at 411 U. S.
804 -805; see 450 U.S. at 450 U. S. 256 .
While the burdens of producing evidence thus shift, the

															"ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff. [ Footnote 2/13 ]"

															450 U.S. at 450 U. S.
253 .

															Decisions of this Court and other federal courts repeatedly have
recognized that, while the employer's burden in a disparate
treatment case is simply one of coming forward with evidence of
legitimate business purpose, its burden in a disparate impact case
is proof of an affirmative defense of business necessity. [ Footnote 2/14 ] Although the majority's
opinion blurs Page 490 U. S. 669 that distinction, thoughtful reflection on common law pleading
principles clarifies the fundamental differences between the two
types of "burdens of proof." [ Footnote 2/15 ] In the ordinary civil trial, the
plaintiff bears the burden of persuading the trier of fact that the
defendant has harmed her. See, e.g., 2 Restatement
(Second) of Torts §§ 328 A, 433 B (1965) (hereinafter Restatement).
The defendant may undercut plaintiff's efforts both by confronting
plaintiff's evidence during her case in chief and by submitting
countervailing evidence during its own case. [ Footnote 2/16 ] But if the plaintiff proves the
existence of the harmful act, the defendant can escape liability
only by persuading the factfinder that the act was justified or
excusable. See, e.g., Restatement §§454-461, 463-467. The
plaintiff in turn may try to refute this affirmative defense.
Although the burdens of producing evidence regarding the existence
of harm or excuse thus shift between the plaintiff Page 490 U. S. 670 and the defendant, the burden of proving either proposition
remains throughout on the party asserting it.

															In a disparate treatment case, there is no "discrimination"
within the meaning of Title VII unless the employer intentionally
treated the employee unfairly because of race. Therefore, the
employee retains the burden of proving the existence of intent at
all times. If there is direct evidence of intent, the employee may
have little difficulty persuading the factfinder that
discrimination has occurred. But in the likelier event that intent
has to be established by inference, the employee may resort to the McDonnell/Burdine inquiry. In either instance, the
employer may undermine the employee's evidence, but has no
independent burden of persuasion.

															In contrast, intent plays no role in the disparate impact
inquiry. The question, rather, is whether an employment practice
has a significant adverse effect on an identifiable class of
workers -- regardless of the cause or motive for the practice. The
employer may attempt to contradict the factual basis for this
effect; that is, to prevent the employee from establishing a prima facie case. But when an employer is faced with
sufficient proof of disparate impact, its only recourse is to
justify the practice by explaining why it is necessary to the
operation of business. Such a justification is a classic example of
an affirmative defense. [ Footnote
2/17 ] Page 490 U. S. 671 Failing to explore the interplay between these distinct orders
of proof, the Court announces that our frequent statements that the
employer shoulders the burden of proof respecting business
necessity "should have been understood to mean an employer's
production -- but not persuasion -- burden." [ Footnote 2/18 ] Ante at 490 U. S. 660 .
Our opinions always have emphasized that, in a disparate impact
case, the employer's burden is weighty. "The touchstone," the Court
said in Griggs, "is business necessity." 401 U.S. at 401 U. S. 431 .
Later, we held that prison administrators had failed to

															"rebu[t] the prima facie case of discrimination by
showing that the height and weight requirements are . . . essential
to effective job performance," Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S.
331 (1977). Cf. n. 14, supra. I am thus
astonished to read that the

															"touchstone of this inquiry is a reasoned review of the
employer's justification for his use of the challenged practice. .
. . [T]here is no requirement that the challenged practice be . . .
'essential,'" ante at 490 U. S. 659 .
This casual -- almost summary -- rejection Page 490 U. S. 672 of the statutory construction that developed in the wake of Griggs is most disturbing. I have always believed that the Griggs opinion correctly reflected the intent of the
Congress that enacted Title VII. Even if I were not so persuaded, I
could not join a rejection of a consistent interpretation of a
federal statute. Congress frequently revisits this statutory
scheme, and can readily correct our mistakes if we misread its
meaning. Johnson v. Transportation Agency, Santa Clara
Cty., 480 U. S. 616 , 480 U. S. 644 (1987) (STEVENS, J., concurring); Runyon v. McCrary, 427 U. S. 160 , 427 U. S.
190 -192 (1976) (STEVENS, J., concurring). See
McNally v. United States, 483 U. S. 350 , 483 U. S. 376 (1987) (STEVENS, J., dissenting); Commissioner v. Fink, 483 U. S. 89 , 483 U. S.
102 -105 (1987) (STEVENS, J., dissenting); see also
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 , 490 U. S. 486 (1989) (STEVENS, J., dissenting).

															Also troubling is the Court's apparent redefinition of the
employees' burden of proof in a disparate impact case. No prima
facie case will be made, it declares, unless the employees
" isolat[e] and identif[y] the specific employment practices
that are allegedly responsible for any observed statistical
disparities.'" Ante at 490 U. S. 656 (quoting Watson v. Fort Worth Bank & Trust, 487 U. S. 977 , 487 U. S. 994 (1988) (plurality opinion)). This additional proof requirement is
unwarranted. [ Footnote 2/19 ] It
is elementary that a plaintiff cannot recover upon proof of injury
alone; rather, the plaintiff must connect the injury to an act of
the defendant in order to establish prima facie that the
defendant is liable. E.g., Restatement § 430. Although the
causal link must have substance, the act Page 490 U. S. 673 need not constitute the sole or primary cause of the harm.
§§431-433; cf. Price Waterhouse v. Hopkins, 490 U.
S. 228 (1989). Thus in a disparate impact case, proof of
numerous questionable employment practices ought to fortify an
employee's assertion that the practices caused racial disparities.
[ Footnote 2/20 ] Ordinary
principles of fairness require that Title VII actions be tried like
"any lawsuit." Cf. United States Postal Service Bd. of
Governors v. Aikens, 460 U. S. 711 , 460 U. S. 714 ,
n. 3 (1983). The changes the majority makes today, tipping the
scales in favor of employers, are not faithful to those
principles. II Petitioners seek reversal of the Court of Appeals and dismissal
of this suit on the ground that respondents' statistical evidence
failed to prove a prima facie case of discrimination.
Brief for Petitioners 48. The District Court concluded "there were significant disparities'" between the racial composition of the
cannery workers and the noncannery workers, but it "made no precise
numerical findings" on this and other critical points. See
ante at 490 U. S. 650 ,
n. 5. Given this dearth of findings and the Court's newly
articulated preference for individualized proof of causation, it
would be manifestly unfair to consider respondents' evidence in the
aggregate and deem it insufficient. Thus, the Court properly
rejects petitioners' request for a final judgment and remands for
further determination of the strength of respondents' prima
facie case. See ante at 490 U. S. 655 .
Even at this juncture, however, I believe that respondents'
evidence deserves greater credit than the majority allows. Page 490 U. S. 674 Statistical evidence of discrimination should compare the racial
composition of employees in disputed jobs to that " of the
qualified . . . population in the relevant labor market.'" Ante at 490 U. S. 650 (quoting Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S. 308 (1977)). That statement leaves open the definition of the qualified
population and the relevant labor market. Our previous opinions, e.g., New York City Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S.
584 -586 (1979); Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S.
329 -330 (1977); Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 (1975); Griggs, 401 U.S. at 401 U. S. 426 , 401 U. S. 430 ,
n. 6, demonstrate that, in reviewing statistical evidence, a court
should not strive for numerical exactitude at the expense of the
needs of the particular case. The District Court's findings of fact depict a unique industry.
Canneries often are located in remote, sparsely populated areas of
Alaska. 34 EPD � 34,437, p. 33,825 (WD Wash. 1983). Most jobs are
seasonal, with the season's length and the canneries' personnel
needs varying not just year to year, but day to day. Ibid. To fill their employment requirements, petitioners must recruit and
transport many cannery workers and noncannery workers from States
in the Pacific Northwest. Id. at 33,828. Most cannery
workers come from a union local based outside Alaska or from Native
villages near the canneries. Ibid. Employees in the
noncannery positions -- the positions that are "at issue" -- learn
of openings by word of mouth; the jobs seldom are posted or
advertised, and there is no promotion to noncannery jobs from
within the cannery workers' ranks. Id. at
33,827-33,828.

															In general, the District Court found the at-issue jobs to
require "skills," ranging from English literacy, typing, and
"ability to use seam micrometers, gauges, and mechanic's hand
tools" to "good health" and a driver's license. [ Footnote 2/21 ] Id. at Page 490 U. S. 675 33,833-33,834. All cannery workers' jobs, like a handful of
at-issue positions, are unskilled, and the court found that the
intensity of the work during canning season precludes on-the-job
training for skilled noncannery positions. Id. at 33,825.
It made no findings regarding the extent to which the cannery
workers already are qualified for at-issue jobs: individual
plaintiffs testified persuasively that they were fully qualified
for such jobs, [ Footnote 2/22 ]
but the court neither credited nor discredited this testimony.
Although there are no findings concerning wage differentials, the
parties seem to agree that wages for cannery workers are lower than
those for noncannery workers, skilled or unskilled. The District
Court found that "nearly all" cannery workers are nonwhite, while
the percentage of nonwhites employed in the entire Alaska salmon
canning industry "has stabilized at about 47% to 50%." Id. at 33,829. The precise stratification of the workforce is not
described in the findings, but the parties seem to agree that the
noncannery jobs are predominantly held by whites.

															Petitioners contend that the relevant labor market in this case
is the general population of the " external' labor market for
the jobs at issue." Brief for Petitioners 17. While they would rely
on the District Court's findings in this regard, those findings are
ambiguous. At one point, the District Court specifies "Alaska, the
Pacific Northwest, and California" as "the geographical region from
which [petitioners] draw their employees," but its next finding
refers to "this relevant geographical area for cannery worker,
laborer, and other nonskilled jobs," 34 EPD � 34,437, p. 33,828.
There Page 490 U. S.
676 is no express finding of the relevant labor market for
noncannery Jobs. Even assuming that the District Court properly defined the
relevant geographical area, its apparent assumption that the
population in that area constituted the "available labor supply," ibid., is not adequately founded. An undisputed
requirement for employment either as a cannery or noncannery worker
is availability for seasonal employment in the far reaches of
Alaska. Many noncannery workers, furthermore, must be available for
preseason work. Id. at 33,829, 33,833-33,834. Yet the
record does not identify the portion of the general population in
Alaska, California, and the Pacific Northwest that would accept
this type of employment. [ Footnote
2/23 ] This deficiency respecting a crucial job qualification
diminishes the usefulness of petitioners' statistical evidence. In
contrast, respondents' evidence, comparing racial compositions
within the workforce, identifies a pool of workers willing to work
during the relevant times and familiar with the workings of the
industry. Surely this is more probative than the untailored general
population statistics on which petitioners focus. Cf.
Hazelwood, 433 U.S. at 433 U. S. 308 ,
n. 13; Teamsters, 431 U.S. at 431 U. S.
339 -340, n. 20. Page 490 U. S. 677 Evidence that virtually all the employees in the major
categories of at-issue jobs were white, [ Footnote 2/24 ] whereas about two-thirds of the cannery
workers were nonwhite, [ Footnote
2/25 ] may not by itself suffice to establish a prima
facie case of discrimination. [ Footnote 2/26 ] But such evidence of racial
stratification puts the specific employment practices challenged by
respondents into perspective. Petitioners recruit employees for
at-issue jobs from outside the workforce, rather than from lower
paying, overwhelmingly nonwhite cannery worker positions. 34 EPD �
34,437, p. 33,828-33,829. Information about availability of
at-issue positions is conducted by word of mouth; [ Footnote 2/27 ] therefore, Page 490 U. S. 678 the maintenance of housing and mess halls that separate the
largely white noncannery workforce from the cannery workers, id. at 33,836, 33,843-33,844, coupled with the tendency
toward nepotistic hiring, [ Footnote
2/28 ] are obvious barriers to employment opportunities for
nonwhites. Putting to one side the issue of business
justifications, it would be quite wrong to conclude that these
practices have no discriminatory consequence. [ Footnote 2/29 ] Thus, I agree with the Court of
Appeals, 827 F.2d 439, 444-445 (CA9 1987), that, when the District
Court makes the additional findings prescribed today, it should
treat the evidence of racial stratification in the workforce as a
significant element of respondents' prima facie case. III The majority's opinion begins with recognition of the settled
rule that that

															"a facially neutral employment practice may be deemed violative
of Title VII without evidence of the employer's subjective intent
to discriminate that is required in a 'disparate treatment'
case." Ante at 490 U. S.
645 -646. It then departs from the body of law engendered
by this disparate Page 490 U. S. 679 impact theory, reformulating the order of proof and the weight
of the parties' burdens. Why the Court undertakes these unwise
changes in elementary and eminently fair rules is a mystery to
me.

															I respectfully dissent.

															[ Footnote 2/1 ]

															178 Stat. 253, as amended, 42 U.S. C. § 2000e et
seq. [ Footnote 2/2 ]

															Title VII also bars discrimination because of religion or sex.
42 U.S. C. § 2000e-2(a). Discrimination based on other
characteristics has been challenged under other statutes. See,
e.g., School Board of Nassau County v. Arline, 480 U.
S. 273 (1987) (determining scope of protection for
handicapped schoolteacher under § 504 of the Rehabilitation Act of
1973, 87 Stat. 394, 29 U.S. C. § 794); Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U.
S. 669 (1983) (Pregnancy Discrimination Act of 1978,
Pub. L. 95-555, §1, 92 Stat. 2076, 42 U.S. C. §2000e-(k)); Lorillard v. Pons, 434 U. S. 575 (1978) (Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S. C. § 621 et seq. ); Corning Glass Works v. Brennan, 417 U.
S. 188 (1974) (Equal Pay Act of 1963, 77 Stat. 56, §3,
enacted as §6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C.
§206(d)).

															[ Footnote 2/3 ] See ante at 490 U. S. 654 .
The majority purports to reverse the Court of Appeals, but in fact
directs the District Court to make additional findings, some of
which had already been ordered by the Court of Appeals. Compare 827 F.2d 439, 445 (CA9 1987), with ante at 490 U. S.
657 -658. Furthermore, nearly half the majority's opinion
is devoted to two questions not fairly raised at this point: "the
question of causation in a disparate impact case," ante at 490 U. S. 656 ,
and the nature of the employer's defense, ante at 490 U. S. 658 .
Because I perceive no urgency to decide "these disputed questions," ante at 490 U. S. 650 ,
at an interlocutory stage of such a factually complicated case, I
believe the Court should have denied certiorari and allowed the
District Court to make the additional findings directed by the
Court of Appeals.

															[ Footnote 2/4 ]

															Respondents constitute a class of present and former employees
of petitioners, two Alaskan salmon canning companies. The class
members, described by the parties as "nonwhite," include persons of
Samoan, Chinese, Filipino, Japanese, and Alaska Native descent, all
but one of whom are United States citizens. 34 EPD � 34,437, pp.
33,822, 33,836-33,838 (WD Wash. 1983). Fifteen years ago, they
commenced this suit, alleging that petitioners engage in hiring,
job assignment, housing, and messing practices that segregate
nonwhites from whites in violation of Title VII. Evidence included
this response in 1971 by a foreman to a college student's inquiry
about cannery employment:

															"We are not in a position to take many young fellows to our
Bristol Bay canneries, as they do not have the background for our
type of employees. Our cannery labor is either Eskimo or Filipino,
and we do not have the facilities to mix others with these
groups." Id. at 33,836.

															Some characteristics of the Alaska salmon industry described in
this litigation -- in particular, the segregation of housing and
dining facilities and the stratification of jobs along racial and
ethnic lines -- bear an unsettling resemblance to aspects of a
plantation economy. See generally Plantation, Town, and
County, Essays on the Local History of American Slave Society
163-334 (E. Miller & E. Genovese eds. 1974). Indeed the
maintenance of inferior, segregated facilities for housing and
feeding nonwhite employees, see 34 EPD n 34,437, pp.
33,836, 33,843-33,844, strikes me as a form of discrimination that,
although it does not necessarily fit neatly into a disparate impact
or disparate treatment mold, nonetheless violates Title VII. See generally Brief for National Association for the
Advancement of Colored People as Amicus Curiae. Respondents, however, do not press this theory before us.

															[ Footnote 2/5 ]

															This Court noted that census statistics showed that in the
employer's State, North Carolina,

															"while 34% of white males had completed high school, only 12% of
Negro males had done so. . . . Similarly, with respect to
standardized tests, the EEOC in one case found that use of a
battery of tests, including the Wonderlic and Bennett tests used by
the Company in the instant case, resulted in 58% of whites passing
the tests, as compared with only 6% of the blacks." Griggs, 401 U.S. at 401 U. S. 430 ,
n. 6.

															[ Footnote 2/6 ]

															"The Court of Appeals held that the Company had adopted the
diploma and test requirements without any 'intention to
discriminate against Negro employees.' We do not suggest that
either the District Court or the Court of Appeals erred in
examining the employer's intent; but good intent or absence of
discriminatory intent does not redeem employment procedures or
testing mechanisms that operate as 'built-in headwinds' for
minority groups, and are unrelated to measuring job
capability. " Id. at 401 U. S. 432 (emphasis added) (citation omitted).

															[ Footnote 2/7 ] See id. at 401 U. S. 426 ,
n. 1. This subsection provides that

															"[i]t shall be an unlawful employment practice for an employer
-- "

															"(a) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual's race, color, religion, sex, or national origin."

															42 U.S. C. § 2000e-2(a)(2).

															[ Footnote 2/8 ]

															The opinion concluded:

															"Nothing in the Act precludes the use of testing or measuring
procedures; obviously, they are useful. What Congress has forbidden
is giving these devices and mechanisms controlling force unless
they are demonstrably a reasonable measure of job performance.
Congress has not commanded that the less-qualified be preferred
over the better-qualified simply because of minority origins. Far
from disparaging job qualifications as such, Congress has made such
qualifications the controlling factor, so that race, religion,
nationality, and sex become irrelevant. What Congress has
commanded is that any tests used must measure the person for the
job, and not the person in the abstract. "

															401 U.S. at 401 U. S. 436 (emphasis added).

															[ Footnote 2/9 ]

															Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat.
131, 134, as amended, codified at 42 U.S. C. §§1973,1973b
(1982 ed. and Supp. V). Legislative reports leading to 1972
amendments to Title VII also evince support for disparate impact
analysis. H.R.Rep. No. 92-238, pp. 8, 20-22 (1971); S.Rep. No.
92-415, p. 5, and n. 1 (1971); accord, Connecticut v. Teal, 457 U. S. 440 ,
447, n. 8 (1982). Moreover, the theory is employed to enforce fair
housing and age discrimination statutes. See Note,
Business Necessity in Title VIII: Importing an Employment
Discrimination Doctrine into the Fair Housing Act, 54 Ford.L.Rev.
563 (1986); Note, Disparate Impact Analysis and the Age
Discrimination in Employment Act, 68 Minn.L.Rev. 1038 (1984).

															[ Footnote 2/10 ]

															This subsection makes it unlawful for an employer:

															"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. . . ."

															42 U.S. C. §2000e-2(a)(1).

															[ Footnote 2/11 ]

															In McDonnell Douglas Corp. v. Green, 411 U.
S. 792 (1973), Justice Powell explained:

															" Griggs differs from the instant case in important
respects. It dealt with standardized testing devices which, however
neutral on their face, operated to exclude many blacks who were
capable of performing effectively in the desired positions. 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. Respondent, however, appears in different clothing.
He had engaged in a seriously disruptive act against the very one
from whom he now seeks employment. And petitioner does not seek his
exclusion on the basis of a testing device which overstates what is
necessary for competent performance, or through some sweeping
disqualification of all those with any past record of unlawful
behavior, however remote, insubstantial, or unrelated to
applicant's personal qualifications as an employee. Petitioner
assertedly rejected respondent for unlawful conduct against it,
and, in the absence of proof of pretext or discriminatory
application of such a reason, this cannot be thought the kind of
'artificial, arbitrary, and unnecessary barriers to employment'
which the Court found to be the intention of Congress to
remove." Id. at 411 U. S. 806 (citations omitted).

															[ Footnote 2/12 ]

															"This may be done 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." Id. at 411 U. S.
802 .

															[ Footnote 2/13 ]

															Although disparate impact and disparate treatment are the most
prevalent modes of proving discrimination violative of Title VII,
they are by no means exclusive. See generally B. Schlei
& P. Grossman, Employment Discrimination Law 13-289 (2d ed.
1983) (four chapters discussing "disparate treatment," "present
effects of past discrimination," "adverse impact," and "reasonable
accommodation" as "categories" of discrimination). Cf. n.
4, supra. Moreover, either or both of the primary theories
may be applied to a particular set of facts. See Teamsters v.
United States, 431 U. S. 324 , 431 U. S. 336 ,
n. 15 (1977).

															[ Footnote 2/14 ] See McDonnell Douglas, 411 U.S. at 411 U. S. 802 ,
n. 14. See also, e.g., Teal, 457 U.S. at 457 U. S. 446 ("employer must . . . demonstrate that any given requirement
[has] a manifest relationship to the employment in question'"); New York City Transit Authority v. Beazer, 440 U.
S. 568 , 440 U. S. 587 (1979) (employer "rebutted" prima facie case by
"demonstration that its narcotics rule . . . `is job-related'"); Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 (1977) (employer has to "prov[e] that the challenged requirements
are job related"); Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 (1975) (employer has "burden of proving that its tests are
`job-related'"); Griggs, 401 U.S. at 401 U. S. 432 (employer has "burden of showing that any given requirement must
have a manifest relationship to the employment"). Court of Appeals
opinions properly treating the employer's burden include Bunch
v. Bullard, 795 F.2d 384, 393-394 (CA5 1986); Lewis v.
Bloomsburg Mills, Inc., 773 F.2d 561, 572 (CA4 1985); Nash
v. Jacksonville, 763 F.2d 1393, 1397 (CA11 1985); Segar v.
Smith, 238 U.S.App.D.C. 103, 121, 738 F.2d 1249, 1267 (1984), cert. denied sub nom. Meese v. Segar, 471 U.S. 1115
(1985); Moore v. Hughes Helicopters, Inc., Div. of Summa
Corp., 708 F.2d 475, 481 (CA9 1983); Hawkins v.
Anheuser-Busch, Inc., 697 F.2d 810, 815 (CA8 1983); Johnson v. Uncle Ben's, Inc., 657 F.2d 750 (CA5 1981), cert. denied, 459 U.S. 967 (1982); contra, Croker v.
Boeing Co., 662 F.2d 975, 991 (CA3 1981) ( en banc ). Cf. Equal Employment Opportunity Comm'n, Uniform
Guidelines on Employee Selection Procedures, 29 CFR §1607.1 et
seq. (1988). [ Footnote 2/15 ] See, e.g., 9 J. Wigmore, Evidence §§2485-2498 (J.
Chadbourn rev. 1981); D. Louisell & C. Mueller, Federal
Evidence §§ 65-70 (1977) (hereinafter Louisell); 21 C. Wright &
K. Graham, Federal Practice and Procedure § 5122 (1977)
(hereinafter Wright); J. Thayer, A Preliminary Treatise on Evidence
353-389 (1898) (hereinafter Thayer); C. Langdell, Equity Pleading
108-115 (2d ed. 1883).

															[ Footnote 2/16 ] Cf. Thayer 357 (quoting Caldwell v. New Jersey S.
B. Co., 47 N.Y. 282, 290 (1872)) (" The burden of
maintaining the affirmative of the issue, and, properly speaking,
the burden of proof, remained upon the plaintiff throughout the
trial; but the burden or necessity was cast upon the defendant to
relieve itself from the presumption of negligence raised by the
plaintiff's evidence'"). [ Footnote 2/17 ] Accord, Fed.Rule Civ.Proc. 8(c) ("In pleading to a
preceding pleading, a party shall set forth affirmatively . . . any
. . . matter constituting an avoidance or affirmative defense"). Cf. Thayer 368-369:

															"An admission may, of course, end the controversy; but such an
admission may be, and yet not end it; and if that be so, it is
because the party making the admission sets up something that
avoids the apparent effect of it. . . . When this happens, the
party defending becomes, in so far, the actor or plaintiff. In
general, he who seeks to move a court in his favor, whether as an
original plaintiff whose facts are merely denied, or as a
defendant, who, in admitting his adversary's contention and setting
up an affirmative defence, takes the role of actor ( reus excipiendo fit actor ), must satisfy the court of the
truth and adequacy of the grounds of his claim, both in point of
fact and law."

															Similarly, in suits alleging price discrimination in violation
of § 2 of the Clayton Act, as amended by the Robinson Patman Act,
15 U.S. C. §13, it is well settled that the defendant has the
burden of affirmatively establishing as a defense either a cost
justification, under the proviso to subsection (a), United
States v. Borden Co., 370 U. S. 460 , 370 U. S. 467 (1962), or a good faith effort to meet a competitor's equally low
price, pursuant to subsection (b), Standard Oil Co. v.
FTC, 340 U. S. 231 , 340 U. S. 250 (1951).

															[ Footnote 2/18 ]

															The majority's only basis for this proposition is the plurality
opinion in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 , 487 U. S. 997 (1988), which in turn cites no authority. As JUSTICE BLACKMUN
explained in Watson, 487 U.S. at 487 U. S.
1001 -1002 (concurring in part and concurring in
judgment), and as I have shown here, the assertion profoundly
misapprehends the difference between disparate impact and disparate
treatment claims.

															The Court also makes passing reference to Federal Rule of
Evidence 301. Ante at 490 U. S. 660 .
That Rule pertains only to shifting of evidentiary burdens upon
establishment of a presumption, and has no bearing on the
substantive burdens of proof. See Louisell §§ 65-70; Wright §
5122.

															[ Footnote 2/19 ]

															The Solicitor General's brief amicus curiae on behalf
of the employers agrees:

															"[A] decision rule for selection may be complex: it may, for
example, involve consideration of multiple factors. And certainly
if the factors combine to produce a single ultimate selection
decision and it is not possible to challenge each one, that
decision may be challenged (and defended) as a whole."

															Brief for United States as Amicus Curiae 22 (footnote
omitted).

															[ Footnote 2/20 ]

															The Court discounts the difficulty its causality requirement
presents for employees, reasoning that they may employ "liberal
civil discovery rules" to obtain the employer's statistical
personnel records. Ante at 490 U. S. 657 .
Even assuming that this generally is true, it has no bearing in
this litigation, since it is undisputed that petitioners did not
preserve such records. Brief for Respondents 42-43; Reply Brief for
Petitioners 18-19.

															[ Footnote 2/21 ]

															The District Court found that, of more than 100 at-issue job
titles, all were skilled except these 15: kitchen help,
waiter/waitress, janitor, oil dock crew, night watchman, tallyman,
laundry, gasman, roustabout, store help, stockroom help, assistant
caretaker (winter watchman and watchman's assistant), machinist
helper/trainee, deckhand, and apprentice carpenter/carpenter's
helper. 34 EPD � 34,437, p. 33,835.

															[ Footnote 2/22 ]

															Some cannery workers later became architects, an Air Force
officer, and a graduate student in public administration. Some had
college training at the time they were employed in the canneries. See id. at 33,837-33,838; App. 38, 52-53; Tr. 76, 951-952,
1036, 1050, 2214.

															[ Footnote 2/23 ]

															The District Court's justification for use of general population
statistics occurs in these findings of fact:

															"119. Most of the jobs at the canneries entail migrant, seasonal
labor. While, as a general proposition, most people prefer
full-year, fixed location employment near their homes, seasonal
employment in the unique salmon industry is not comparable to most
other types of migrant work, such as fruit and vegetable harvesting
which, for example, may or may not involve a guaranteed wage."

															"120. Thus, while census data is [ sic ] dominated by
people who prefer full-year, fixed-location employment, such data
is [ sic ] nevertheless appropriate in defining labor
supplies for migrant, seasonal work."

															34 EPD � 34,437, p. 33,829. The court's rather confusing
distinction between work in the cannery industry and other
"migrant, seasonal work" does not support its conclusion that the
general population composes the relevant labor market.

															[ Footnote 2/24 ]

															For example, from 1971 to 1980, there were 443 persons hired in
the job departments labeled "machinists," "company fishing boat,"
and "tender" at petitioner Castle & Cooke, Inc.'s Bumble Bee
cannery; only 3 of them were nonwhites. Joint Excerpt of Record 35
(Exh. 588). In the same categories at the Red Salmon cannery of
petitioner Wards Cove Packing Co., Inc., 488 whites and 42
nonwhites were hired. Id. at 36 (Exh. 589).

															[ Footnote 2/25 ]

															The Court points out that nonwhites are "overrepresented" among
the cannery workers. Ante at 490 U. S. 654 .
Such an imbalance will be true in any racially stratified
workforce; its significance becomes apparent only upon examination
of the pattern of segregation within the workforce. In the cannery
industry, nonwhites are concentrated in positions offering low
wages and little opportunity for promotion. Absent any showing that
the "underrepresentation" of whites in this stratum is the result
of a barrier to access, the "overrepresentation" of nonwhites does
not offend Title VII.

															[ Footnote 2/26 ]

															The majority suggests that at-issue work demands the skills
possessed by "accountants, managers, boat captains, electricians,
doctors, and engineers." See ante at 490 U. S. 651 .
It is at least theoretically possible that a disproportionate
number of white applicants possessed the specialized skills
required by some at-issue jobs. In fact, of course, many at-issue
jobs involved skills not at all comparable to these selective
examples. See 34 EPD � 34,437, p. 33,833-33,834. Even the
District Court recognized that, in a year-round employment setting,
"some of the positions which this court finds to be skilled, e.g., truckdriving on the beach, [would] fit into the
category of jobs which require skills that are readily acquirable
by persons in the general public." Id. at 33,841.

															[ Footnote 2/27 ]

															As the Court of Appeals explained in its remand opinion:

															"Specifically, the companies sought cannery workers in Native
villages and through dispatches from ILWU Local 37, thus securing a
workforce for the lowest paying jobs which was predominantly Alaska
Native and Filipino. For other departments, the companies relied on
informal word-of-mouth recruitment by predominantly white
superintendents and foremen, who recruited primarily white
employees. That such practices can cause a discriminatory impact is
obvious."

															827 F.2d at 446.

															[ Footnote 2/28 ]

															The District Court found, but downplayed the fact, that
relatives of employees are given preferential consideration. See 34 EPD � 34,437, p. 33,840. But "of 349 nepotistic
hires in four upper-level departments during 1970-75, 332 were of
whites, 17 of nonwhites," the Court of Appeals noted.

															"If nepotism exists, it is by definition a practice of giving
preference to relatives, and where those doing the hiring are
predominantly white, the practice necessarily has an adverse impact
on nonwhites."

															827 F.2d at 445.

															[ Footnote 2/29 ]

															The Court suggests that the discrepancy in economic
opportunities for white and nonwhite workers does not amount to
disparate impact within the meaning of Title VII unless respondents
show that it is "petitioners' fault." Ante at 490 U. S. 651 ; see also ante at 490 U.
S. 653 -654. This statement distorts the disparate impact
theory, in which the critical inquiry is whether an employer's
practices operate to discriminate. E.g., Griggs, 401 U.S.
at 401 U. S. 431 .
Whether the employer intended such discrimination is
irrelevant.

Summary:
The Supreme Court case Wards Cove Packing v. Atonio (1989) concerned allegations of racial discrimination in hiring and promotion practices at Alaskan salmon canneries. The case was brought by a class of nonwhite cannery workers who claimed that they were denied employment in better-paying "noncannery jobs" due to their race.

The Court's key holdings were:

1. To establish a prima facie case of disparate impact, the correct comparison is between the racial composition of the "at-issue jobs" (those alleged to be discriminatory) and the racial composition of the qualified population in the relevant labor market, not simply between different types of jobs within the company.

2. The absence of minorities in skilled positions may reflect a lack of qualified nonwhite applicants, and employers cannot be held responsible for racial imbalances that occur for reasons beyond their control.

3. With respect to unskilled noncannery jobs, the employer's selection process likely does not have a disparate impact on minorities if there are no barriers deterring qualified nonwhites from applying.

4. The concentration of nonwhites in low-wage, low-opportunity positions does not violate Title VII unless it is shown that this is due to a barrier to access for minorities.

The case addressed the interpretation of Title VII of the Civil Rights Act and the standards for proving disparate impact in employment discrimination cases.