EDWIN MEESE, III, ATTORNEY GENERAL, ET AL., PETITIONERS V. HENRY W.
SEGAR, ET AL.

   No. 84-1200

   In the Supreme Court of the United States

   October Term, 1984

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Reply Memorandum for the Petitioner

   1. Respondents contend (Br. in Opp. 2-3) that "(F)rom the outset,
the case proceeded on both disparate treatment and disparate impact
theories", and allege that we inaccurately portray this case as one in
which "a disparate treatment case (has been) transformed, by a stroke
of the court of appeals' pen, into a disparate impact case" (Br. in
Opp. 10).  It is true, as we acknowledged in our petition (at 2 n.2),
that respondents labeled several of their claims as involving
disparate impact.  The courts below did not dispute these labels,
although respondents did not identify any test or other employment
selection criterion as the basis for their claims.  /1/ Those claims
were presented, and treated by the courts, largely on the basis of the
same kind of statistical evidence that underlay the disparate
treatment claims.  The argument put forth by respondents and
incorrectly accepted by the courts below was that such evidence, if
sufficient to establish a disparate treatment claim, is a fortiori
sufficient to show disparate impact (Pet. App. 139a, 19a-20a, 31a;
Plaintiffs' Post-Trial Memo. 8-11).  It is precisely this blurring of
the difference between disparate impact and disparate treatment
analysis that, we submit, merits review by this Court (see Pet.
16-17).

   Indeed, the need for this Court's review has now been highlighted
by Griffin v. Carlin, No. 84-3070 (Mar. 28, 1985), in which the
Eleventh Circuit agreed with the analysis of the instant court, and
directed the district court, on remand, that "defendants may not rebut
(a) presumption of discrimination by reliance on (neutral selection
procedures) unless those procedures have been validated as required
under a disparate impact analysis" (slip op. 2781).  /2/ That decision
thus confirms our prediction (Pet. 20) that the rule announced by the
court below will have an immediate adverse impact on the orderly
conduct of Title VII litigation.

   2. Respondents incorrectly asset (Br. in Opp. 15) that the decision
below is consistent with established Title VII principles.  But in
fact, this Court has emphasized (Hazelwood School District v. United
States, 433 U.S. 299, 308 n.13 (1977), citing Mayor v. Educational
Equality League, 415 U.S. 605, 620-621 (1974)) that comparative
statistics are competent only when they take into account the special
qualifications for the position in question.  By ignoring the
specialized experience required of persons hired at the GS-9 level,
the courts below relied on statistical evidence that failed to
establish a prima facie case, because it failed to reflect the
relevant basic objective job requirements.

   3. Finally, respondents' repeated assertions (Br. in Opp. 5, 11,
12) that petitioners cannot prevail because they failed to introduce
evidence to support their claims reflect a basic misapprehension of
the applicable burdens of proof.  Since, as we have explained in our
petition (at 20-27), respondents' statistical evidence had no
significant probative value, petitioners should not have been required
to assume the burden of establishing the existence of disparities in
specialized experience among blacks and whites to justify the
differences in entry level grades.  /3/ In any event, it is inaccurate
to assert that petitioners "produced not a shred of evidence that a
difference between the races in 'specialized experience' even existed,
let alone that it explained the (statistical) disparities" (Br. in
Opp. 12).  The relevance of disparities in experience was not
initially apparent;  it was raised at trial by the inadequacy of
respondents' statistics.  When the burden of showing that the
difference in experience explained the statistical disparity was
improperly placed on the defendants, we met and carried that burden by
demonstrating that the differences in initial placement allegedly
attributable to race were, in fact, due to varying amounts of prior
job related experience (see Pet. 9-10).

   For the foregoing reasons and the reasons stated in the petition,
it is respectfully submitted that the petition for a writ of
certiorari should be granted.

   REX E. LEE

      Solicitor General

   APRIL 1984

   /1/ In their response to our petition, respondents state that they
"identified before trial each employment practice they challenged * *
*(, and) presented evidence separately and independently on each" (Br.
in Opp. 2).  But both their citation of authority and the response
itself reveal that the "employment practice(s)" to which they refer
are "initial grade assignments, work assignments, supervisory
evaluations, discipline, and promotions" (Br. in Opp. 1), and the
evidence presented as to each was simply statistical comparisons of
the cumulative effect of each of these on blacks and whites (see,
e.g., Pet. App. 106a-119a).  As the Fifth Circuit explained in Pouncy
v. Prudential Insurance Co., 668 F.2d 795, 801-802 (1982):

         The disparate impact model requires proof of a causal
      connection between a challenged employment practice and the
      composition of the work force.  Aptitude tests, height and
      weight requirements, and similar selection criteria all may be
      shown to affect one class of employees more harshly than another
      by controlling for the impact of the employment practice on one
      class in the employer's work force so that it can be measured.
      For example, in Griggs (v. Duke Power Co., 401 U.S. 424 (1971))
      the plaintiff proved not just a racial imbalance in the
      employer's work force, but also that the employer's educational
      requirement resulted in disqualifying a higher percentage of
      black employees than white employees.  401 U.S. at 430 n.6 * *
      *.  In an action challenging an employer's height and weight
      requirements, the plaintiff demonstrated that, as compared to
      men, a disproportionate number of women were automatically
      disqualified from obtaining jobs as corrections counselors.
      Dothard (v. Rawlinson), 433 U.S. (321,) at 329-30 & n.12 * * *
      (1977).

         By contrast, Pouncy has not shown, nor can he show, that
      independent of other factors the employment practices he
      challenges (the failure to post job openings and the reliance on
      in-house promotions and subjective employee evaluation criteria)
      have caused the racial imbalance in Prudential's work force.
      The statistics presented by the appellant do show that, on the
      whole, blacks are over-represented in the lower levels of
      Prudential's work force.  But this might result from any number
      of causes.  Absent proof that the disparate impact is caused by
      one or more of the challenged employment practices, we do not
      require the employer to justify the legitimacy of any (or all)
      employment practices.

   /2/ We are lodging 10 copies of the Griffin decision with the clerk
of this Court.

   /3/ Respondents' quotation (Br. in Opp. 5) from petitioners' expert
witness Spradlin is taken out of context.  Spradlin was explaining his
use of cohort analyses, in which the employment history of employees
who enter at the same grades are compared.  In context, therefore, he
was simply stating that there did not appear to be significant
disparities among various individuals who were hired at grade 7, or
among those hired at grade 9.  He was not considering the differences
between those hired at grade 9 and those hired at grade 7, or whether
whites were more likely than blacks to have the extra year of
specialized experience required for entry at grade 9.