9/1: Intro to AD Statutes II: Proof (McD-Dgs & Impact)
Religion & Antidiscrimination Law
Week III: Causes of Action Under Antidiscrimination Statutes
(A) Disparate Treatment Claims
A disparate treatment case involves a claim that the decision-maker intentionally treated the plaintiff differently because of a protected characteristic. Plaintiffs have two ways to bring these cases: (1) Direct Proof; and (2) The McDonnell Douglas Burden Shift.
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(1) Direct Proof
Overview: In a direct proof case, the plaintiff simply introduces evidence tending to show discriminatory intent and the case proceeds like any other civil suit. Normally plaintiffs will use direct proof where they are able to discover persuasive evidence like discriminatory statements made by the decision-maker or direct evidence that the plaintiff was treated differently than similarly situated people who did not share the protected characteristic. Some courts interpreting Title VII seem to require that the plaintiff produce “direct evidence” of discrimination (as opposed to circumstantial evidence) if they want to skip the McDonnell Douglas burden shift. I think this seems unnecessary if the circumstantial evidence is strong, but it may be a requirement in some circuits.
The Sorenson case below is an example of a direct proof case. As you’ll see, the question of discriminatory intent went to the jury without any reference to a burden shift. You might ask yourself whether you think the jury reached the right decision given the full set of evidence described in the case.
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SORENSON v. RAYMOND
532 F.2d 496 (5th Cir. 1976)
GEE, Circuit Judge: The major question in this case is whether an out-of-court admission that conduct was motivated by racial prejudice may be explained away in court like other such liability-creating declarations or whether it is final and fatal. We hold that it may be explained.
Appellants are a white couple who seek compensatory and punitive damages under 42 U.S.C. §1982,2 plus attorneys’ fees and costs. The defendant is their former landlord, who allegedly evicted them because they entertained two black guests. They appeal a judgment entered on special jury verdicts finding that race was not a significant factor in their landlord’s decision to evict them and that they suffered no damages from the eviction.
In detail, appellants complain that the trial court should have ... (2) granted them a directed verdict on the liability issue ... ; (3) granted them a new trial because the verdict is contrary to the greater weight of the evidence; (4) granted them a new trial because of prejudicial comments by appellee’s counsel about possible drug use by appellants; and (5) prohibited appellee from using his peremptory challenges to exclude blacks from the jury. Finding no error in the jury verdict or the court’s rulings, we affirm.
One day during the tenth month of appellants Brad and Gail Sorenson’s year lease, landlord Raymond, after appellants had said they would not be home,3 entered their apartment to find appellants and four other persons, including two black girls4 and a prior tenant whom Raymond disliked. Inviting Brad Sorenson downstairs, Raymond announced that appellants must vacate their apartment, responding “Yes,” when Sorenson inquired whether the presence of two black girls had caused Raymond’s decision. Raymond later testified that his true motive was fury at discovering the presence of an objectionable former tenant and a large number of people preparing for a party. Additionally, he chronicled the frequent complaints by other tenants about loud music, late parties, strewn trash, and other irritating practices by appellants, and he related his concern for the physical condition of his apartment. He insisted that he had responded affirmatively to Sorenson’s inquiry about the two black girls in an impassioned effort to anger Sorenson, having no later opportunity to give his real reasons for the eviction.5
II. Directed Verdict And New Trial. To find a violation of section 1982’s prohibition of racial discrimination in the sale or rental of property, this court in United States v. Pelzer Realty Co., 484 F.2d 438, 443 (5th Cir. 1973), cert. denied, 416 U.S. 936 (1974), declared that the finder of fact must rule that race is at least “one significant factor” in the apartment rental decision. Appellants claim that they deserved a directed verdict on the ground that the use of discriminatory language coupled with the loss of rights makes motive or intent irrelevant, and for support they rely primarily on language in Pelzer that
it is not necessary to show that (defendant) intended to deprive (the victims) of rights granted by the (Fair Housing) Act. A violation occurred because his words had that effect.
Id. at 443. But the Pelzer court, faced with an alleged violation of [§3604(b), which] prohibits discrimination in the terms of sale or rental of a dwelling, found that a verbal demand made of these blacks that would not have been made of whites11 was discriminatory treatment, regardless of motivation, because the unretracted words themselves imposed on blacks a condition which was not imposed on similarly-situated whites.
In support of its ruling, the Pelzer court cited U.S. v. Mintzes, 304 F.Supp. 1305 (D.Md. 1969), which found illegal attempts by whites to induce homeowners to sell their dwellings by representations regarding the prospective entry of blacks into the neighborhood. The representations were themselves actions which violated the “anti-blockbusting” statute, 42 U.S.C. §3604(e), which prohibits attempted inducements to sell using such racially oriented representations, regardless of racial motivation. As to them, there was no question of motive, for they were actionable regardless of the intent with which they were uttered and were specifically made so by statute. Here, however, the questioned conduct challenged as violative of §1982’s prohibition of discrimination in the sale or rental of property, is only evidence of the violation a racially-discriminatory motive, not the violation itself. It may be that there are circumstances where the evidence of racial motivation can be so conclusively inferred from a defendant’s words that a court might direct a verdict based on words alone. But where, as here, the only objectionable word uttered was an inculpatory “Yes,” it would be unjust to deny a defendant the opportunity to explain in his defense that he did not intend to speak the words or that his words, provoked by a leading question, were intended only to enrage, not to convey truthful information.
Appellants argue in the alternative that the evidence so strongly supports a finding that race was a dominant factor in the eviction decision that they were entitled to either a directed verdict or a new trial. But after examining the record, we cannot say that the evidence, considered in the light most favorable to appellee, so strongly supports appellants that they deserved a directed verdict. Nor can we say that the verdict was so contrary to the greater weight of the evidence that we should find that the trial judge abused his discretion in refusing to grant a new trial. ...
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(2) The McDonnell Douglas Burden Shift
THE STRUCTURE OF THE BURDEN SHIFT
In McDonnell Douglas v. Green, 411 U.S. 792 (1973), and Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248 (1981), the Supreme Court elaborated the burdens of production and proof in a lawsuit by a private individual claiming that an employer had violated Title VII, the federal statute prohibiting discrimination in employment. Federal courts interpreting the federal Fair Housing Act have adopted the structure of the McDonnell Douglas burden shift.
The Plaintiff’s Prima Facie Case: In a case in which the plaintiff claims s/he was not hired because of race discrimination, under McDonnell Douglas, the plaintiff bears the initial burden of demonstrating a version of the following prima facie case:
(1) that s/he belongs to a racial minority;
(2) that s/he applied and was qualified for a job for which the employer was seeking applicants;
(3) that s/he was rejected
(4) that after the rejection, the position remained open and the employer continued to seek applicants from persons with similar qualifications.
See McDonnell Douglas, 411 U.S. at 802. The prima facie case creates a rebuttable presumption that discrimination has occurred. Burdine, 450 U.S. at 254.
The Supreme Court has made clear that the precise nature of the prima facie case would vary with the particular claim being made. See McDonnell Douglas, 411 U.S. n.13. For example, in Burdine, the Court held that the plaintiff met the first and fourth prongs of the prima facie case by showing that she was a woman who applied for a job that was eventually given to a man. See 450 U.S. at 253 n.6.
Lower court cases interpreting Title VII have varied the prima facie case for cases challenging other claims such as termination of or failure to promote the plaintiff. Lower court cases have also adopted variations on the burden shift for cases arising under the Fair Housing Act. One example, Asbury v. Brougham, is included in the materials below.
The Defendant’s Burden of Production: Once the plaintiff has provided evidence sufficient to state the prima facie case, the burden shifts “to the employer to articulate some legitimate, non-discriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. The defendant’s explanation “must be clear and reasonably specific.” Burdine, 450 U.S. at 258. However, Burdine makes clear that this is merely a burden to produce some evidence, not a burden of proof:
The defendant need not persuade the court that it was actually motivated by the proffered reasons. … It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection.
Id. at 254-55.
Although this burden is quite easy to meet, “the defendant nevertheless retains an incentive to try to persuade the trier of fact that the … decision was lawful [so it] normally will try to prove the factual basis for its explanation.” Id. at 258.
The Plaintiff’s Ultimate Burden: After the defendant meets its burden by articulating a legitimate reason for its actions, the plaintiff has an opportunity to prove by a preponderance of the evidence that the articulated reason was merely a pretext for forbidden discrimination. McDonnell Douglas, 411 U.S. at 804; Burdine, 450 U.S. at 215. The burden to show pretext
merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading a court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.
Burdine, 450 U.S. at 256.
While the trier of fact considers plaintiff’s evidence of pretext, it may continue to consider the evidence that made up the prima facie case. The defendant’s articulation of a legitimate reason eliminates the presumption in favor of a finding of discrimination, but does not undercut the probative value of the evidence that constituted the plaintiff’s initial showing. See id. at 255 n.10.
If the trier of fact finds that the defendant’s articulated reason is false, does the plaintiff automatically win? The Supreme Court said “no” in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). The Court held that because the plaintiff retains the ultimate burden of proving that the defendant engaged in forbidden discrimination, simply disproving the asserted rationale does not provide a victory as a matter of law. The fact-finder still must be convinced that discrimination was the true reason for the defendant’s actions. “It is not enough … to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination. Id. at 519.
However, in Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000), the Court clarified that simply presenting the prima facie case plus evidence rebutting the defendant’s articulated reason can be sufficient to satisfy the plaintiff’s ultimate burden. No additional submission of evidence is necessary. Id. at 148. The Court noted, however, that such a showing would not always be sufficient. For example, judgment as a matter of law for the defendant would be appropriate
if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted evidence that no discrimination had occurred.
Id. at 148-49. Together, Hicks and Reeves suggest that, when a plaintiff’s only evidence beside the prima facie case goes to showing the falsity of the defendant’s proffered reason, the finder of fact will usually be allowed to decide whether there is liability.
JUSTIFICATIONS FOR THE BURDEN SHIFT
The prima facie case serves to “eliminate[ ] the most common non-discriminatory reasons for the plaintiff’s rejection. “ Burdine, 450 U.S. at 254. For example, if the plaintiff cannot provide evidence that s/he was qualified for the job in question, s/he cannot proceed. Similarly, if the employer decided it no longer wanted to hire anyone for the job, the plaintiff should be unable to provide evidence to meet the fourth prong. Once the prima facie case has eliminated these reasons, the employer’s acts, “if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Id. (quoting Furnco Construction Corp., 438 US 567, 577 (1978)). Thus, the creation of a rebuttable presumption of discrimination is appropriate. Id.
The defendant’s burden of production serves to narrow the focus of the case “so that the plaintiff will have a full and fair opportunity to demonstrate pretext.” Id. at 255-56. It prevents the plaintiff from having to anticipate and disprove every possible legitimate reason for the defendant’s acts. It also takes into account that the defendant will usually have much better access to information about the challenged decision. Once the plaintiff knows the defendant’s claimed reason, it can use the discovery process to explore relevant evidence that is in the defendant’s possession. See id. at 258.
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ASBURY v. BROUGHAM
866 F.2d 1276 (10th Cir. 1989)
PARKER, District Judge: Plaintiff Rosalyn Asbury brought suit under 42 U.S.C. §1982 and the Fair Housing Act, claiming that the defendants refused to rent or to allow her to inspect or negotiate for the rental of an apartment or townhouse at Brougham Estates in Kansas City. Defendants Leo Brougham, individually and doing business as Brougham Estates and Brougham Management Company, and Wanda Chauvin, his employee, appeal a jury verdict awarding Asbury compensatory damages of $7,500 against them... . Leo Brougham appeals from the jury verdict awarding punitive damages in the amount of $50,000 solely against him. Defendants contend that the jury verdict awarding compensatory damages is unsupported by the evidence because it failed to establish an intent to discriminate. Defendant Leo Brougham appeals the award of punitive damages on the additional ground that any discriminatory motivation that the jury may have found on the part of Wanda Chauvin could not be attributed to Brougham, on whose behalf she managed leasing of apartments and townhouses at Brougham Estates. The defendants argue, therefore, that the district court erred by denying their motion for a new trial.
I. Sufficiency of Evidence Supporting a Finding of Racial Discrimination in Violation of §1982 and FHA. 42 U.S.C. §1982 and the FHA both prohibit discrimination on the basis of race. In order to prevail on a claim made under these statutes, plaintiff must prove a discriminatory intent. A violation occurs when race is a factor in a decision to deny a minority applicant the opportunity to rent or negotiate for a rental, but race need not be the only factor in the decision. In addition, §3604(d) of the FHA specifically prohibits dissemination of false information about the availability of housing because of a person’s race. Accordingly, failure to provide a minority applicant with the same information about availability of a rental unit or the terms and conditions for rental as is provided to white “testers,” results in false information being provided and is cognizable as an injury under the FHA.
A. Asbury’s Prima Facie Case under §1982 and FHA. The three-part burden of proof analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a Title VII employment discrimination case, has been widely applied to FHA and §1982 claims. E.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032 (2d Cir.1979); Phiffer v. Proud Parrot Motor Hotel, 648 F.2d 548, 551 (9th Cir.1980); see also Denny v. Hutchinson Sales Corp., 649 F.2d 816, 822-23 (10th Cir.1981) (§1982). Under the McDonnell Douglas analysis, plaintiff first must come forward with proof of a prima facie case of discrimination. Second, if plaintiff proves a prima facie case, the burden shifts to defendants to produce evidence that the refusal to rent or negotiate for a rental was motivated by legitimate, non-racial considerations. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). Third, once defendants by evidence articulate non-discriminatory reasons, the burden shifts back to plaintiff to show that the proffered reasons were pretextual. Id. at 256.
The proof necessary to establish a prima facie case under the FHA also establishes a prima facie case of racial discrimination under §1982. Selden Apartments v. U.S. Dept. of Housing & Urban Development, 785 F.2d 152, 159 (6th Cir.1986); Robinson. In order to establish her prima facie case, plaintiff had to prove that:
(1) she is a member of a racial minority;
(2) she applied for and was qualified to rent an apartment or townhouse in Brougham Estates;
(3) she was denied the opportunity to rent or to inspect or negotiate for the rental of a townhouse or apartment; and
(4) the housing opportunity remained available.
Selden Apartments; Robinson.
A review of the evidence in this case shows that plaintiff established her prima facie case. Defendants stipulated that Asbury is black. Plaintiff testified that on February 23, 1984, she went to Brougham Estates with her daughter to obtain rental housing. At the rental office at Brougham Estates, Asbury encountered Wanda Chauvin, the manager,4 and explained to Chauvin that she was being transferred to Kansas City and needed to rent housing. Asbury told Chauvin that she needed to secure housing by the middle of March or the beginning of April. In response, Chauvin said there were no vacancies, but told Asbury she could call back at a later time to check on availability. Chauvin provided no information concerning availability of rental units that would assist Asbury in her efforts to rent an apartment or townhouse at Brougham Estates. Asbury asked for the opportunity to fill out an application, but Chauvin did not give her an application, again stating that there were no vacancies and that she kept no waiting list. Asbury also requested floor plans or the opportunity to view a model unit, and Chauvin refused. Instead, Chauvin suggested Asbury inquire at the Westminister Apartments, an apartment complex housing mostly black families. Although Chauvin did not ask Asbury about her qualifications, plaintiff was employed with the Federal Aviation Authority at a salary of $37,599. Based on her salary, defendants concede that Asbury would likely be qualified to rent an apartment or townhouse at Brougham Estates.
Defendants argue that Asbury was not rejected because Chauvin courteously invited her to call back. However, there is ample evidence in the record to support the jury’s finding that defendants’ failure or refusal to provide Asbury the opportunity to rent or inspect or negotiate for the rental of a townhouse or apartment constituted a rejection because of her race cognizable under §1982 and the FHA.
Although there was a conflict in the evidence as to the availability of housing at the time Asbury attempted to inspect and negotiate for rental, there was abundant evidence from which the jury could find that housing was available. Defendants testified that families with a child are housed exclusively in the townhouses at Brougham Estates, and that there were no townhouses available on the date Asbury inquired. Asbury introduced evidence suggesting that both apartments and townhouses were available and, in addition, that exceptions previously had been created to allow children to reside in the apartments.
On February 24, 1984, the day after Asbury inquired about renting, Asbury’s sister-in-law, Linda Robinson, who is white, called to inquire about the availability of two-bedroom apartments. The woman who answered the telephone identified herself as “Wanda” and invited Robinson to come to Brougham Estates to view the apartments. The following day, February 25, 1984, Robinson went to the rental office at Brougham Estates and met with Wanda Chauvin. Chauvin provided Robinson with floor plans of available one- and two-bedroom apartments at Brougham Estates. Robinson specifically asked Chauvin
about rental to families with children, and Chauvin did not tell Robinson that children were restricted to the townhouse units. Robinson accompanied Chauvin to inspect a model unit and several available two-bedroom apartments. Upon inquiry by Robinson, Chauvin indicated that the apartments were available immediately and offered to hold an apartment for her until the next week.
Asbury also provided evidence indicating that townhouses were available for rent. On February 1, 1984, Daniel McMenay, a white male, notified Brougham Estates that he intended to vacate his townhouse. On April 4, 1984, Brougham Estates rented the townhouse vacated by McMenay to John Shuminski, a white male. On March 10, 1984, Randall Hockett, a white male, also rented a townhouse at Brougham Estates. In addition, Asbury provided computer data sheets generated by Brougham Estates which indicated that a third townhouse was unoccupied at the time of her inquiry on February 23, 1984 and remained vacant as of April 10, 1984. There was also evidence that a building which included townhouse units had been closed for the winter but would be available for rent beginning in the spring. On February 22, 1984, one day prior to Asbury’s inquiry into vacancies, James Vance, a white male, paid a deposit for a townhouse which he occupied when the building opened on April 10, 1984. Since Asbury testified that she told Chauvin she did not need to occupy a rental unit until the beginning of April, the jury could have concluded that at least one of the townhouses which was subsequently rented to the white males was available at the time Asbury inquired. Although defendants took the position at trial that the townhouses were closed or out of order for repair and therefore not available to rent, the jury was free to accept the evidence of availability presented by the plaintiff.
Since Asbury met her burden of proving a prima facie case of racial discrimination, the burden shifted to defendants to prove a legitimate, non- discriminatory reason for denial of housing. McDonnell Douglas Corp.; Burdine.
B. Failure of Proof of Legitimate, Non-discriminatory Reason for Rejection. Defendants claimed their legitimate, nondiscriminatory reasons for rejecting Asbury arose out of the policies at Brougham Estates that families with one child could rent townhouses but not apartments, and that families with more than one child were not permitted to move into Brougham Estates. Defendants further argued that they made no exceptions to these rules. Defendants contended that in accordance with these rental policies, no appropriate housing was available for Asbury when she inquired. However, plaintiff introduced evidence indicating that exceptions to these rules had been made on several occasions; families with children had rented apartments, and families with more than one child had been permitted to move into Brougham Estates. Asbury was not provided information about the terms and conditions that gave rise to an exception to the policy concerning children being restricted to the townhouses. The jury could therefore find that defendants’ reasons for denying Asbury the opportunity to negotiate for rental were not legitimate and nondiscriminatory.
Defendants also argue that evidence of a high percentage of minority occupancy in Brougham Estates conclusively rebuts the claim of intentional racial discrimination.5 Although such statistical data is relevant to rebutting a claim of discrimination, statistical data is not dispositive of a claim of intentional discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 580 (1977). Moreover, there was other evidence from which the jury could have determined that race was a motivating factor in defendants’ decision to refuse to negotiate with Asbury for a rental unit.
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(3) The Problem of Mixed Motives
The articulations of the burden shift in McDonnell Douglas and Burdine do not address the problem of mixed motives. That is, is an employer guilty of discrimination if it takes action against an employee partly because of some forbidden reason like race or sex and partly for legitimate reasons such as mediocre job performance or insubordination? Early cases applying the Fair Housing Act stated that a defendant violated the Act if prohibited discrimination was a “significant factor” in the challenged decision. See Sorenson.
The Supreme Court addressed this issue in the context of Title VII in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Justices wrote four opinions in that case, none of which commanded a majority. However, the opinions between them did establish a relatively clear procedure for addressing mixed motives cases. Under Price Waterhouse, if the plaintiff’s evidence demonstrates that forbidden discrimination was a substantial reason for the challenged decision, but was not the only reason, an additional step is added to the McDonnell Douglas scheme. At that point, the burden shifts to the defendant to demonstrate by a preponderance of the evidence that it would have made the same decision even if discrimination had played no part in the decision at all. If the defendant meets this burden, there is no violation of Title VII.
Congress responded to Price Waterhouse by amending Title VII as part of the Civil Rights Act of 1991. One section added by the Act, 42 U.S.C. §2000e-2 (m), provides that Title VII is violated in any case in which the complaining party establishes that forbidden discrimination was “a motivating factor” in the challenged decision. A second added provision, §2000e-5(g)(2)(B), governs the remedies available in mixed motive cases. Where the plaintiff has shown that discrimination was “a motivating factor” in the decision, but the defendant “demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor,” the court can award the plaintiff with declaratory relief, some injunctive relief, costs and attorney’s fees, but cannot award damages or order hiring or reinstatement.
The significance of these changes is that, under the Price Waterhouse analysis, even if discrimination was a motivating factor, if the fact-finder decides the employer would have reached the same decision anyway, Title VII is not violated and the plaintiff cannot get attorney’s fees. Under the new statutory provisions, so long as the plaintiff proves that discrimination was a motivating factor in the employment decision, Title VII is violated and the plaintiff is entitled to attorney’s fees even if the employer would have made the same decision anyway. This means that, in practice, attorneys are much more likely to accept mixed motive cases.
Lower federal courts have applied the Price Waterhouse analysis in FHA cases. Because when Congress overruled Price Waterhouse it amended Title VII but not the FHA, it is not clear whether the old or new analysis applies in FHA mixed motive cases.
(B) Disparate Impact Claims
Overview: A disparate impact claim is a challenge to a facially neutral policy, rule or practice. The basis of the claim is not that the neutral policy is a pretext for unlawful discriminatory animus, but that the policy disproportionately burdens a group of people defined by one of the protected characteristics. The requested remedy usually is elimination or modification of the challenged policy. Generally, the defendant in a disparate impact claim is allowed to defend by showing that the challenged policy is sufficiently important to be used despite the disproportionate burden.
The leading case under Title VII is Griggs v. Duke Power Co., included in the materials below. Subsequent to Griggs, the Supreme Court decided several controversial cases addressing the details of the disparate impact cause of action. These were subsequently overturned by the Civil Rights Act of 1991. See 42 U.S.C. 2000e-(2)(k). We will examine these details only if they prove to be important in disparate impact cases on the basis of religion that we find.
The Supreme Court held in Washington v. Davis, 426 U.S. 229 (1976), that no disparate impact cause of action is available in cases brought under the Equal Protection Clause. The courts have also held that disparate impact claims are not available under the Civil Rights Act of 1866.
Although the Supreme Court has never ruled on the availability of disparate impact claims under the Fair Housing Act, every lower court to rule on the issue since 1988 has allowed plaintiffs to raise disparate impact claims under §3604. The various federal circuits have evolved several different sets of legal tests some applicable to government defendants, some to private defendants and some to both. The Mountain Side case included below shows you an example of the kind of fact pattern in which FHA disparate impact claims arise, although I don’t think its analysis is very good.
Note that plaintiffs can challenge a particular unfavorable decision by an employer, a municipality or a housing provider by characterizing the reason for the decision as a neutral policy. For example, if a landlord turns down a prospective tenant because she has no college degree, she could try to show that the policy of rejecting people with no college degree has a disproportionate effect on, e.g., women or particular racial or ethnic minorities. Similarly, if a municipality rejects a proposal for a particular apartment complex relying on specific zoning provisions, it’s decision can be challenged on the grounds that the zoning provisions have the effect of reinforcing existing segregation.
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GRIGGS v. DUKE POWER CO.
401 U.S. 424 (1971)
CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ in this case to resolve the question whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites.
Congress provided, in Title VII of the Civil Rights Act of 1964, for class actions for enforcement of provisions of the Act and this proceeding was brought by a group of incumbent Negro employees against Duke Power Company. All the petitioners are employed at the Company’s Dan River Steam Station, a power generating facility located at Draper, North Carolina. At the time this action was instituted, the Company had 95 employees at the Dan River Station, 14 of whom were Negroes; 13 of these are petitioners here.
The District Court found that prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, the Company openly discriminated on the basis of race in the hiring and assigning of employees at its Dan River plant. The plant was organized into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4) Maintenance, and (5) Laboratory and Test. Negroes were employed only in the Labor Department where the highest paying jobs paid less than the lowest paying jobs in the other four “operating” departments in which only whites were employed. Promotions were normally made within each department on the basis of job seniority. Transferees into a department usually began in the lowest position.
In 1955 the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any “inside” department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a prerequisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employees hired before the time of the high school education requirement continued to perform satisfactorily and achieve promotions in the “operating” departments. Findings on this score are not challenged.
The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department it became necessary to register satisfactory scores on two professionally prepared aptitude tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable departments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. In September 1965 the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an “inside” job by passing two tests - the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. The requisite scores used for both initial hiring and transfer approximated the national median for high school graduates. 3
The District Court had found that while the Company previously followed a policy of overt racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only and, consequently, the impact of prior inequities was beyond the reach of corrective action authorized by the Act.
The Court of Appeals was confronted with a question of first impression, as are we, concerning the meaning of Title VII. After careful analysis a majority of that court concluded that a subjective test of the employer’s intent should govern, particularly in a close case, and that in this case there was no showing of a discriminatory purpose in the adoption of the diploma and test requirements. On this basis, the Court of Appeals concluded there was no violation of the Act.
The Court of Appeals reversed the District Court in part, rejecting the holding that residual discrimination arising from prior employment practices was insulated from remedial action.4 The Court of Appeals noted, however, that the District Court was correct in its conclusion that there was no showing of a racial purpose or invidious intent in the adoption of the high school diploma requirement or general intelligence test and that these standards had been applied fairly to whites and Negroes alike. It held that, in the absence of a discriminatory purpose, use of such requirements was permitted by the Act. In so doing, the Court of Appeals rejected the claim that because these two requirements operated to render ineligible a markedly disproportionate number of Negroes, they were unlawful under Title VII unless shown to be job related.5 We granted the writ on these claims.
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.
The Court of Appeals’ opinion, and the partial dissent, agreed that, on the record in the present case, “whites register far better on the Company’s alternative requirements” than Negroes.6 This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences in Gaston County v. United States, 395 U.S. 285 (1969). There, because of the inferior education received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.
Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job-seeker be taken into account. It has - to resort again to the fable - provided that the vessel in which the milk is proffered be one all seekers can use. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the overall quality of the work force.
The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used.7 The promotion record of present employees who would not be able to meet the new criteria thus suggests the possibility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advancement within the Company. In the context of this case, it is unnecessary to reach the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements fulfill a genuine business need. In the present case the Company has made no such showing.
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.
The Company’s lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.
The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.
The Company contends that its general intelligence tests are specifically permitted by 703 (h) of the Act. That section authorizes the use of “any professionally developed ability test” that is not “designed, intended or used to discriminate because of race....” (Emphasis added.)
The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting 703 (h) to permit only the use of job-related tests.9 The administrative interpretation of the Act by the enforcing agency is entitled to great deference. Since the Act and its legislative history support the Commission’s construction, this affords good reason to treat the guidelines as expressing the will of Congress.
Section 703 (h) was not contained in the House version of the Civil Rights Act but was added in the Senate during extended debate. For a period, debate revolved around claims that the bill as proposed would prohibit all testing and force employers to hire unqualified persons simply because they were part of a group formerly subject to job discrimination.10 Proponents of Title VII sought throughout the debate to assure the critics that the Act would have no effect on job-related tests. Senators Case of New Jersey and Clark of Pennsylvania, co-managers of the bill on the Senate floor, issued a memorandum explaining that the proposed Title VII “expressly protects the employer’s right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” (Emphasis added.) Despite these assurances, Senator Tower of Texas introduced an amendment authorizing “professionally developed ability tests.” Proponents of Title VII opposed the amendment because, as written, it would permit an employer to give any test, “whether it was a good test or not, so long as it was professionally designed. Discrimination could actually exist under the guise of compliance with the statute.”
The amendment was defeated and two days later Senator Tower offered a substitute amendment which was adopted verbatim and is now the testing provision of 703 (h). Speaking for the supporters of Title VII, Senator Humphrey, who had vigorously opposed the first amendment, endorsed the substitute amendment, stating: “Senators on both sides of the aisle who were deeply interested in title VII have examined the text of this amendment and have found it to be in accord with the intent and purpose of that title.” The amendment was then adopted. From the sum of the legislative history relevant in this case, the conclusion is inescapable that the EEOC’s construction of 703 (h) to require that employment tests be job related comports with congressional intent.
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. …
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MOUNTAIN SIDE MOBILE ESTATES PARTNERSHIP v.
SECRETARY OF HOUSING AND URBAN DEVELOPMENT
56 F.3d 1243 (10th Cir. 1995)
BARRETT, Senior Circuit Judge. … Mountain Side owns a mobile home park in Jefferson County, Colorado, which was built in the 1960’s. Robert and Marilyn Dalke have been the park’s resident managers since December, 1989. The park consists of 229 mobile home lots each of which is available to be leased as real property for placement of one mobile home. The park provides utilities, including water, power, telephone, and sewer hookups, to each lot. The park was built to accommodate “older” single-wide mobile homes of 8 to 10 feet wide and 30 to 55 feet long. The park cannot accommodate the modern single-wide or double-wide mobile homes, which are much wider and longer. The density in the park is almost 10 mobile homes per acre, whereas modern parks average 5 to 6 mobile homes per acre.
Prior to March, 1989, the park was an adults-only park; Mountain Side prohibited any person under 21 ... from living in the park. After the 1988 amendments to the FHA, effective March 12, 1989, Mountain Side instituted a new occupancy policy of no more than three persons per mobile home. The FHA amendments prohibit discrimination on the basis of familial status unless a housing provider can meet a narrow exemption for “housing for older persons.” Mountain Side determined that it could not meet the exception. Since March, 1989, it has accepted all residents, including families with minor children, subject to its occupancy policy.
In September, 1991, Jacqueline VanLoozenoord (VanLoozenoord), her three minor children, and her “roommate and companion,” Michael Brace (Brace), moved into a mobile home in the park. Neither VanLoozenoord nor Brace contacted the park management or submitted an application for tenancy prior to their occupancy. They purchased the mobile home in place. The sellers did not advise them that the park had a three person occupancy limit.
Shortly after they moved in, Robert Dalke inquired of Brace as to the number of residents in the mobile home. When Brace informed him that five people were living there, Dalke informed him of the park’s three person per lot occupancy limit and told him they would have to move. Subsequently, Mountain Side served VanLoozenoord and Brace with a notice ... demanding that they vacate the park ...
[The couple filed complaints with HUD and the case was tried before an administrative law judge on a disparate impact theory. The ALJ ruled that the occupancy limit had an unlawful disparate impact on preople with children.] …
The three factors we will consider in determining whether a plaintiff’s prima facie case of disparate impact makes out a violation of Title VIII are: (1) the strength of the plaintiff’s showing of discriminatory effect; (2) the defendant’s interest in taking the action complained of; and (3) whether the plaintiff seeks to compel the defendant affirmatively to provide housing … or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. …
Strength of Plaintiff’s Showing of Discriminatory Effect. The Secretary relied on national statistics that “at least 71.2% of all U.S. households with four or more persons contain one or more children under the age of 18 years; that at least 50.5% of U.S. families with minor children have four or more individuals; and that at most 11.7% of households without minor children have four or more persons” to determine that the plaintiffs had proven discriminatory effect. Although discriminatory effect is generally shown by statistical evidence, any statistical analysis must involve the appropriate comparables. … In some cases national statistics may be the appropriate comparable population. See Dothard (district court did not err in using national height and weight statistics to find discriminatory effect on women “where there is no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national population”). However, those cases are the rare exception and this case is not such an exception.
In this case, the appropriate comparables must focus on the local housing market and local family statistics. The farther removed from local statistics the plaintiffs venture, the weaker their evidence becomes. There is no dispute about the veracity of the Secretary’s findings of discriminatory effect on the national level. However, this national level discriminatory effect, although substantially supported by the record, is so far removed from the local arena that it is of little weight in our analysis.
Interest of Defendant in Taking the Action Complained Of. The second factor which we consider is the interest of the defendant in taking the action which produces the discriminatory effect. The Arlington Heights II court recognized that “[i]f the defendant is a private individual or a group of private individuals seeking to protect private rights, the courts cannot be overly solicitous when the effect is to perpetuate segregated housing.” On the other hand, when a defendant can present valid non-pretextual reasons for the challenged practices, the courts should not be overzealous to find discrimination.
Mountain Side presented two legitimate, non-pretextual reasons for its occupancy limit: (1) sewer systems limitations, and (2) concern over the quality of park life. These overcame plaintiffs’ prima facie case, as more fully hereafter discussed.
Nature of Relief Sought. … In Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 269 n.20, (1st Cir.1993) the court, in an elderly and handicapped Title VIII discrimination action, concluded that “Where plaintiff seeks a judgment which would require defendant to take affirmative action to correct a Title VIII violation, plaintiff must make a greater showing of discriminatory effect. On the other hand, if plaintiff seeks a judgment merely enjoining defendant from further interference with the exercise of plaintiff’s Title VIII rights, a lesser showing of discriminatory effect would suffice.”
Business Necessity. … [W]e hold that for the purposes of Title VIII FHA housing discrimination cases, the defendant must demonstrate that the discriminatory practice has a manifest relationship to the housing in question. A mere insubstantial justification in this regard will not suffice, because such a low standard would permit discrimination to be practiced through the use of spurious, seemingly neutral practices. At the same time, there is no requirement that the defendant establish a “compelling need or necessity” for the challenged practice to pass muster since this degree of scrutiny would be almost impossible to satisfy.
Mountain Side presented two reasons for the three person per lot occupancy limit: (1) sewer capacity limitations, and (2) concern over quality of park life. In support of the occupancy limit, Mountain Side presented extensive evidence before the ALJ. In his Findings of Fact, the Secretary found: …
11. By March of 1989, [Mountain Side] became aware of the addition of families with children to the classes protected by the [FHA], and that it must decide whether the Park should remain an adult park or whether residency should be thrown open to families with children. At the time, there were many Park vacancies because of the limited market for an adult mobile home community. Accordingly, [Mountain Side] decided that the option of becoming a family park was a more “viable opportunity.” However, the elimination of the adult restriction meant that there would be an increase in Park population. Therefore, [Mountain Side] … examined instituting occupancy limits.
12. An October 15, 1988, survey of the Park population was used to establish the new policy. According to the study, 318 people resided on 213 lots. Each occupied unit had one or two residents. [Park managers] opined that the condition and age of the utilities, the density of homes, and the overall size of the Park would not support more than a three-person per lot limit without negatively affecting the quality of life at the Park. Accordingly, [Mountain Side] determined that a limit of three residents per unit, resulting in a total of 687 residents, was the maximum number that the Park could reasonably accommodate.
19. After the imposition of the occupancy limit, [Mountain Side’s] counsel advised [the managers] that their own opinion alone might not be sufficient to support the three-person limit and that an independent expert would be able to assist in evaluating the legitimacy of the policy. In early 1991, [Mountain Side] retained QCI Development Services Group, Inc. (“QCI”) and its president and principal engineer, Roger Walker, to perform a study to assist [Mountain Side] in evaluating the three-person occupancy limit. Mr. Walker was not provided with any target population limit or instructions concerning methodology. Neither was he requested to provide alternatives or suggestions for improvements or repairs to increase any recommended population limit. ...
21. In March 1991, QCI completed its study entitled “Community Guidelines Report, Mountainside Mobile Home Park” (“QCI Study”). It evaluates two sets of concerns which affect Park residents: 1) their health and safety based on an objective evaluation of the infrastructure of the Park (i.e., the adequacy of the Park’s water and sewerage pipes), and 2) their comfort based on the size of homes and lots, recreational facilities, and the adequacy of parking.
22. Mr. Walker estimated the adequacy of the Park’s sewer system based on repair records and interviews with David Ramstetter, who performed maintenance for the Park. Based on these sources, the Study concluded that sewer pipes were adequate to support a maximum of 916 persons. … Because the 916 population limit is a recommended maximum, Mr. Walker opined that if an additional 30 guests are at the Park at peak time, “some portion of the [sewer] system will be overloaded.”
23. Mr. Walker described his figure of 916 as a “brick wall,” or an absolute maximum. If the Park had 916 residents, he asserted that the sewer system would not be able to accommodate additional visitors. The Park is located in a resort area near the Rocky Mountains. Accordingly, Park residents have numerous seasonal visitors that increase the population during the summer and holiday seasons. …
26. The QCI Study also made recommendations based on its evaluation of the Park in terms of human comfort. Mr. Walker opined that the Park has “very small lots ... [and is] crowded.” Based on the assumption that most of the homes currently in the Park have two bedrooms, the Study recommends a populations limit of two people per bedroom in addition to the previously discussed absolute maximum population of 916. The QCI Study also recommended a limit of two vehicles per trailer for traffic flow and pedestrian safety.
27. Notwithstanding Mr. Walker’s recommendation of a maximum of 916 residents, or four residents per home, [Mountain Side] has continued to maintain the limit of three, rather than four, residents per unit. Because of the parking problems, density of the homes, and overall size of the Park, [Mountain Side] decided that the quality of life at the Park would be severely diminished if the Park had a maximum of 916 residents. Furthermore, if the Park reached maximum capacity, it could not accommodate guests, including visiting children.
Based on the foregoing findings, Mountain Side demonstrated that the three person occupancy limit has a manifest relationship to housing in the Park [and] overcame Complainants’ prima facie case ….
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(C) Harassment
Overview: Actionable harassment claims come in two forms, (i) “quid pro quo” harassment; and (ii) “hostile environment” harassment. Most quid pro quo harassment cases involve sexual harassment claims. They involve allegations that an employer or supervisor made a job, a raise or a promotion conditional on the employee providing sexual favors. Courts have concluded that conditioning terms of employment on sexual activity generally constitutes discrimination on the basis of sex. Courts have also found quid pro quo sex discrimination actionable under the FHA where, e.g., a landlord offers to reduce the rent due if a tenant provides sexual favors. Unsurprisingly no quid pro quo causes of action have been recognized for race, color, national origin or disability. However, as we’ll see, some lower courts have found quid pro quo religious discrimination where terms of employment are conditioned on an unwilling employee participating in religious activities.
Hostile environment harassment involves significant ill treatment of the plaintiff by supervisors, landlords, co-workers or neighbors based on one of the plaintiff’s protected characteristics. Courts have found causes of action based on any of the characteristics listed in Title VII and the FHA including religion. The relevant standards are based on the language of the two Supreme Court cases laid out below.
Subsequent Supreme Court cases have established standards for when an employer (and presumably a building owner) can be liable for harassment by a supervisor. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Supreme Court also has held that in sufficiently severe cases, employees can quit in response to harassment and claim that they were “constructively discharged.” See Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). In this course, we will explore the standards created by these cases only if they prove to be important in religious harassment cases we find.
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MERITOR SAVINGS BANK v. VINSON
477 U.S. 57 (1986)
JUSTICE REHNQUIST delivered the opinion of the Court. This case presents important questions concerning claims of workplace “sexual harassment” brought under Title VII of the Civil Rights Act of 1964….
I. In 1974, respondent Mechelle Vinson met Sidney Taylor, a vice president of what is now petitioner Meritor Savings Bank (bank) and manager of one of its branch offices. When respondent asked whether she might obtain employment at the bank, Taylor gave her an application, which she completed and returned the next day; later that same day Taylor called her to say that she had been hired. With Taylor as her supervisor, respondent started as a teller-trainee, and thereafter was promoted to teller, head teller, and assistant branch manager. She worked at the same branch for four years, and it is undisputed that her advancement there was based on merit alone. In September 1978, respondent notified Taylor that she was taking sick leave for an indefinite period. On November 1, 1978, the bank discharged her for excessive use of that leave.
Respondent brought this action against Taylor and the bank, claiming that during her four years at the bank she had “constantly been subjected to sexual harassment” by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney’s fees.
At the 11-day bench trial, the parties presented conflicting testimony about Taylor’s behavior during respondent’s employment. Respondent testified that during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions. These activities ceased after 1977, respondent stated, when she started going with a steady boyfriend.
Respondent also testified that Taylor touched and fondled other women employees of the bank, and she attempted to call witnesses to support this charge. But while some supporting testimony apparently was admitted without objection, the District Court did not allow her “to present wholesale evidence of a pattern and practice relating to sexual advances to other female employees in her case in chief, but advised her that she might well be able to present such evidence in rebuttal to the defendants’ cases.” Respondent did not offer such evidence in rebuttal. Finally, respondent testified that because she was afraid of Taylor she never reported his harassment to any of his supervisors and never attempted to use the bank’s complaint procedure.
Taylor denied respondent’s allegations of sexual activity, testifying that he never fondled her, never made suggestive remarks to her, never engaged in sexual intercourse with her, and never asked her to do so. He contended instead that respondent made her accusations in response to a business-related dispute. The bank also denied respondent’s allegations and asserted that any sexual harassment by Taylor was unknown to the bank and engaged in without its consent or approval.
The District Court denied relief, but did not resolve the conflicting testimony about the existence of a sexual relationship between respondent and Taylor. It found instead that
“[i]f [respondent] and Taylor did engage in an intimate or sexual relationship during the time of [respondent’s] employment with [the bank], that relationship was a voluntary one having nothing to do with her continued employment at [the bank] or her advancement or promotions at that institution.”
The court ultimately found that respondent “was not the victim of sexual harassment and was not the victim of sexual discrimination” while employed at the bank. …
The Court of Appeals for the District of Columbia Circuit reversed. Relying on its earlier holding in Bundy v. Jackson, 641 F.2d 934 (1981), decided after the trial in this case, the court stated that a violation of Title VII may be predicated on either of two types of sexual harassment: harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment. The court drew additional support for this position from the Equal Employment Opportunity Commission’s Guidelines on Discrimination Because of Sex, which set out these two types of sexual harassment claims. Believing that “Vinson’s grievance was clearly of the [hostile environment] type,” and that the District Court had not considered whether a violation of this type had occurred, the court concluded that a remand was necessary.
The court further concluded that the District Court’s finding that any sexual relationship between respondent and Taylor “was a voluntary one” did not obviate the need for a remand. “[U]ncertain as to precisely what the [district] court meant” by this finding, the Court of Appeals held that if the evidence otherwise showed that “Taylor made Vinson’s toleration of sexual harassment a condition of her employment,” her voluntariness “had no materiality whatsoever.” The court then surmised that the District Court’s finding of voluntariness might have been based on “the voluminous testimony regarding respondent’s dress and personal fantasies,” testimony that the Court of Appeals believed “had no place in this litigation.” …
In accordance with the foregoing, the Court of Appeals reversed the judgment of the District Court and remanded the case for further proceedings. … We granted certiorari … and now affirm but for different reasons.
II. Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... 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.” The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives. The principal argument in opposition to the amendment was that “sex discrimination” was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment. This argument was defeated, the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on “sex.”
Respondent argues, and the Court of Appeals held, that unwelcome sexual advances that create an offensive or hostile working environment violate Title VII. Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex. Petitioner apparently does not challenge this proposition. It contends instead that in prohibiting discrimination with respect to “compensation, terms, conditions, or privileges” of employment, Congress was concerned with what petitioner describes as “tangible loss” of “an economic character,” not “purely psychological aspects of the workplace environment.” In support of this claim petitioner observes that in both the legislative history of Title VII and this Court’s Title VII decisions, the focus has been on tangible, economic barriers erected by discrimination.
We reject petitioner’s view. First, the language of Title VII is not limited to “economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “`to strike at the entire spectrum of disparate treatment of men and women’” in employment. Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 , n.13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). Petitioner has pointed to nothing in the Act to suggest that Congress contemplated the limitation urged here.
Second, in 1980 the EEOC issued Guidelines specifying that “sexual harassment,” as there defined, is a form of sex discrimination prohibited by Title VII. As an “administrative interpretation of the Act by the enforcing agency,” Griggs v. Duke Power Co., 401 U.S. 424, 433-434 (1971), these Guidelines, “‘while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,’” General Electric Co. v. Gilbert, 429 U.S. 125, 141-142 (1976), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The EEOC Guidelines fully support the view that harassment leading to noneconomic injury can violate Title VII.
In defining “sexual harassment,” the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited “sexual harassment,” whether or not it is directly linked to the grant or denial of an economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”.
In concluding that so-called “hostile environment” (i.e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U.S. 957 (1972), was apparently the first case to recognize a cause of action based upon a discriminatory work environment. In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee’s protections under Title VII extend beyond the economic aspects of employment:
[T]he phrase ‘terms, conditions or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. . . . One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.... 454 F.2d, at 238.
Courts applied this principle to harassment based on race, e.g., Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506, 514-515 (CA8), cert. denied sub nom. Banta v. United States, 434 U.S. 819 (1977); Gray v. Greyhound Lines, East, 545 F.2d 169, 176 (D.C. Cir. 1976), religion, e.g., Compston v. Borden, Inc., 424 F. Supp. 157 (SD Ohio 1976), and national origin, e.g., Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87, 88 (CA8 1977). Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law.
Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982):
Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.
Accord, Katz v. Dole, 709 F.2d 251, 254-255 (CA4 1983); Bundy v. Jackson, 641 F.2d at 934-944; Zabkowicz v. West Bend Co., 589 F. Supp. 780 (ED Wis. 1984).
Of course, as the courts in both Rogers and Henson recognized, not all workplace conduct that may be described as “harassment” affects a “term, condition, or privilege” of employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 (“mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not affect the conditions of employment to sufficiently significant degree to violate Title VII); Henson, 682 F.2d, at 904 (quoting same). For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.” Ibid. Respondent’s allegations in this case - which include not only pervasive harassment but also criminal conduct of the most serious nature - are plainly sufficient to state a claim for “hostile environment” sexual harassment.
The question remains, however, whether the District Court’s ultimate finding that respondent “was not the victim of sexual harassment,” effectively disposed of respondent’s claim. The Court of Appeals recognized, we think correctly, that this ultimate finding was likely based on one or both of two erroneous views of the law. First, the District Court apparently believed that a claim for sexual harassment will not lie absent an economic effect on the complainant’s employment. See ibid. (“It is without question that sexual harassment of female employees in which they are asked or required to submit to sexual demands as a condition to obtain employment or to maintain employment or to obtain promotions falls within protection of Title VII”) (emphasis added). Since it appears that the District Court made its findings without ever considering the “hostile environment” theory of sexual harassment, the Court of Appeals’ decision to remand was correct.
Second, the District Court’s conclusion that no actionable harassment occurred might have rested on its earlier “finding” that “[i]f [respondent] and Taylor did engage in an intimate or sexual relationship . . ., that relationship was a voluntary one.” But the fact that sex-related conduct was “voluntary,” in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” [EEOC Guidelines]. While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.
Petitioner contends that even if this case must be remanded to the District Court, the Court of Appeals erred in one of the terms of its remand. Specifically, the Court of Appeals stated that testimony about respondent’s “dress and personal fantasies,” which the District Court apparently admitted into evidence, “had no place in this litigation.” The apparent ground for this conclusion was that respondent’s voluntariness vel non in submitting to Taylor’s advances was immaterial to her sexual harassment claim. While “voluntariness” in the sense of consent is not a defense to such a claim, it does not follow that a complainant’s sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of “the record as a whole” and “the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.” Respondent’s claim that any marginal relevance of the evidence in question was outweighed by the potential for unfair prejudice is the sort of argument properly addressed to the District Court. In this case the District Court concluded that the evidence should be admitted, and the Court of Appeals’ contrary conclusion was based upon the erroneous, categorical view that testimony about provocative dress and publicly expressed sexual fantasies “had no place in this litigation.” While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind, there is no per se rule against its admissibility. …
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HARRIS v. FORKLIFT SYSTEMS
510 U.S. 17 (1993)
JUSTICE O’CONNOR delivered the opinion of the Court. In this case, we consider the definition of a discriminatorily “abusive work environment” (also known as a “hostile work environment”) under Title VII of the Civil Rights Act of 1964….
I. Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April, 1985, until October, 1987. Charles Hardy was Forklift’s president.
The Magistrate found that, throughout Harris’ time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos. Hardy told Harris on several occasions, in the presence of other employees, “You’re a woman, what do you know” and “We need a man as the rental manager”; at least once, he told her she was “a dumb ass woman.” Again in front of others, he suggested that the two of them “go to the Holiday Inn to negotiate [Harris’] raise.” Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. He made sexual innuendos about Harris’ and other women’s clothing.
In mid-August, 1987, Harris complained to Hardy about his conduct. Hardy said he was surprised that Harris was offended, claimed he was only joking, and apologized. He also promised he would stop, and, based on this assurance Harris stayed on the job. Ibid. But in early September, Hardy began anew: While Harris was arranging a deal with one of Forklift’s customers, he asked her, again in front of other employees, “What did you do, promise the guy . . . some [sex] Saturday night?” On October 1, Harris collected her paycheck and quit.
Harris then sued Forklift, claiming that Hardy’s conduct had created an abusive work environment for her because of her gender. The United States District Court for the Middle District of Tennessee, adopting the report and recommendation of the Magistrate, found this to be “a close case,” but held that Hardy’s conduct did not create an abusive environment. The court found that some of Hardy’s comments “offended [Harris], and would offend the reasonable woman,” but that they were not
“so severe as to be expected to seriously affect [Harris’] psychological wellbeing. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person’s work performance.
“Neither do I believe that [Harris] was subjectively so offended that she suffered injury . . . . Although Hardy may at times have genuinely offended [Harris], I do not believe that he created a working environment so poisoned as to be intimidating or abusive to [Harris].”
In focusing on the employee’s psychological wellbeing, the District Court was following Circuit precedent. See Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (CA6 1986), cert. denied, 481 U.S. 1041 (1987). The United States Court of Appeals for the Sixth Circuit affirmed in a brief unpublished decision.
We granted certiorari to resolve a conflict among the Circuits on whether conduct, to be actionable as “abusive work environment” harassment (no quid pro quo harassment issue is present here), must “seriously affect [an employee’s] psychological wellbeing” or lead the plaintiff to “suffe[r] injury.”
II. Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... 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.” As we made clear in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), this language “is not limited to “economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “to strike at the entire spectrum of disparate treatment of men and women” in employment,” which includes requiring people to work in a discriminatorily hostile or abusive environment. Id., at 64, quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978). When the workplace is permeated with “discriminatory intimidation, ridicule, and insult,” 477 U.S., at 65 , that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” id., at 67, Title VII is violated.
This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, “mere utterance of an . . . epithet which engenders offensive feelings in a employee,” does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological wellbeing, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “`so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,’” supra, at 66, quoting Rogers v. EEOC, 454 F.2d 234, 238 (CA5 1971), cert. denied, 406 U.S. 957 (1972), merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.
We therefore believe the District Court erred in relying on whether the conduct “seriously affect[ed] plaintiff’s psychological wellbeing” or led her to “suffe[r] injury.” Such an inquiry may needlessly focus the factfinder’s attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological wellbeing, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious.
This is not, and by its nature cannot be, a mathematically precise test. We need not answer today all the potential questions it raises…. But we can say that whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological wellbeing is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But, while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.
III. Forklift, while conceding that a requirement that the conduct seriously affect psychological wellbeing is unfounded, argues that the District Court nonetheless correctly applied the Meritor standard. We disagree. Though the District Court did conclude that the work environment was not “intimidating or abusive to [Harris],” it did so only after finding that the conduct was not “so severe as to be expected to seriously affect plaintiff’s psychological well-beingand that Harris was not “subjectively so offended that she suffered injury.” The District Court’s application of these incorrect standards may well have influenced its ultimate conclusion, especially given that the court found this to be a “close case.”
We therefore reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. So ordered.
JUSTICE SCALIA, concurring. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), held that Title VII prohibits sexual harassment that takes the form of a hostile work environment. The Court stated that sexual harassment is actionable if it is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive work environment.’” Id., at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (CA11 1982)). Today’s opinion elaborates that the challenged conduct must be severe or pervasive enough “to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive.”
“Abusive” (or “hostile,” which in this context I take to mean the same thing) does not seem to me a very clear standard - and I do not think clarity is at all increased by adding the adverb “objectively” or by appealing to a “reasonable person’s” notion of what the vague word means. Today’s opinion does list a number of factors that contribute to abusiveness, , but since it neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative, it thereby adds little certitude. As a practical matter, today’s holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. One might say that what constitutes “negligence” (a traditional jury question) is not much more clear and certain than what constitutes “abusiveness.” Perhaps so. But the class of plaintiffs seeking to recover for negligence is limited to those who have suffered harm, whereas, under this statute “abusiveness” is to be the test of whether legal harm has been suffered, opening more expansive vistas of litigation.
Be that as it may, I know of no alternative to the course the Court today has taken. One of the factors mentioned in the Court’s nonexhaustive list - whether the conduct unreasonably interferes with an employee’s work performance - would, if it were made an absolute test, provide greater guidance to juries and employers. But I see no basis for such a limitation in the language of the statute. Accepting Meritor’s interpretation of the term “conditions of employment” as the law, the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered. I know of no test more faithful to the inherently vague statutory language than the one the Court today adopts. For these reasons, I join the opinion of the Court.
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(D) Retaliation
Overview: The retaliation cause of action arises when a plaintiff is punished for making or participating in an anti-discrimination claim against an employer or housing provider or for opposing discriminatory behavior. The cause of action is necessary to ensure that people can feel safe asserting their rights under antidiscrimination statutes.
Under Title VII, the retaliation cause of action arises under 42 U.S.C. §2000e-3(a):
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
Similar state statutes include Alaska Stat. §18.80.220 and Fla. Stat. §760.10.
Under the FHA, retaliation claims arise under 42 U.S.C. §3617, which prohibits interference with fair housing rights. See also Cal. Govt. Code §12955 (expressly prohibiting retaliation in the housing context).
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(E) Key Issue #2: Belief/Conduct Issues
The exercise of many religions involves conduct as well as belief. When does penalizing conduct strongly associated with a particular religion constitute discrimination because of religion?
When, if ever, should any of the following be permitted, assuming anti-discrimination laws generally apply, but reasonable accommodations are not required:
a) A homeowners’ association forbids residents from putting displays or decorations on the exterior of their units and allows no exceptions for religious holiday displays or other religious symbols.
b) A homeowners’ association or landlord forbids residents from proselytizing, handing out religious literature, or engaging in religious rituals in the common areas.
c) A landlord or hotel operator places limitations on use of the premises based on religious beliefs (e.g., no pork/shellfish; no meat; no alcohol; no graven images/religious idols).
d) The operators of a restaurant or movie theater in a neighborhood experiencing gang violence institute a dress code that excludes most types of hats and jewelry and allow no exceptions for head coverings or jewelry related to religious observance.
2 They do not appeal the lower court’s dismissal, based on the statute of limitations, of their companion claim under 42 U.S.C. §3604.
3 Raymond had called to ask about a briefcase he had forgotten earlier, which the Sorensons left at a neighbor’s apartment because of their intention to leave for the evening.
4 Whom he had seen earlier. In response to an anxious neighboring tenant’s inquiry, he had stated that he did not intend to rent an apartment to the two girls, although he insists he meant only that they had never inquired about renting.
5 Although Raymond admitted to federal investigators several days after the incident that he would prefer not to rent to blacks for fear that having black tenants would lower the value of his property, no black had ever applied, and he did not complain about fearing the effect of black visitors on his investment. Raymond countered any suggestion of actual racial animus by pointing to his participation in several civic projects designed to improve race relations.
11 A real estate agent, concerned about having difficulty selling the remaining vacant lots in a subdivision if he sold two to blacks, offered to waive closing costs, a discount given all white purchasers, only if the black found buyers for the other lots.
4 Although there is some dispute in the record concerning the precise relationship between Chauvin and Brougham, Chauvin worked for Brougham on a commission basis, and he specifically referred to her as his employee and rental agent. As discussed elsewhere in the opinion, Brougham’s liability arises directly from establishing discriminatory policies and procedures. In addition, discriminatory conduct on the part of Chauvin in her capacity as Brougham’s rental agent or employee is attributable to Brougham as owner and managing partner of Brougham Estates. Phiffer v. Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 552 (9th Cir.1980) (“The duty of the owner ... to obey the laws relating to racial discrimination is non-delegable.”)
5 Defendants introduced evidence indicating that in 1983 total black occupancy was 20% and in 1984 total black occupancy was 25%.
3 The test standards are thus more stringent than the high school requirement, since they would screen out approximately half of all high school graduates.
4 The Court of Appeals ruled that Negroes employed in the Labor Department at a time when there was no high school or test requirement for entrance into the higher paying departments could not now be made subject to those requirements, since whites hired contemporaneously into those departments were never subject to them. The Court of Appeals also required that the seniority rights of those Negroes be measured on a plant-wide, rather than a departmental, basis. However, the Court of Appeals denied relief to the Negro employees without a high school education or its equivalent who were hired into the Labor Department after institution of the educational requirement.
5 One member of that court disagreed with this aspect of the decision, maintaining, as do the petitioners in this Court, that Title VII prohibits the use of employment criteria that operate in a racially exclusionary fashion and do not measure skills or abilities necessary to performance of the jobs for which those criteria are used.
6 In North Carolina, 1960 census statistics show that, 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.
7 For example, between July 2, 1965, and November 14, 1966, the percentage of white employees who were promoted but who were not high school graduates was nearly identical to the percentage of non-graduates in the entire white work force.
9 EEOC Guidelines on Employment Testing Procedures… provide: “The Commission accordingly interprets `professionally developed ability test’ to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant’s ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII.” The EEOC position has been elaborated in the new Guidelines on Employee Selection Procedures, 29 CFR 1607.4(c) (1970). These guidelines demand that employers using tests have available “data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.”
10 The congressional discussion was prompted by the decision of a hearing examiner for the Illinois Fair Employment Commission in Myart v. Motorola Co. That case suggested that standardized tests on which whites performed better than Negroes could never be used. The decision was taken to mean that such tests could never be justified even if the needs of the business required them. A number of Senators feared that Title VII might produce a similar result.
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