PRESTON R. TISCH, IN HIS CAPACITY AS POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, PETITIONER V. DARLENE SHIDAKER No. 86-468 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit The Solicitor General, on behalf of Preston R. Tisch, in his capacity as Postmaster General of the United States Postal Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutues involved Question Presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The order of the United States Court of Appeals for the Seventh Circuit denying rehearing en banc (App., infra, 48a-49a) is unpublished. The prior panel opinion of the court of appeals (App., infra, 1a-14a) is unpublished to date. The opinion of the United States District Court for the Northern District of Illinois (App., infra, 15a-47a) is published at 593 F. Supp. 823. JURISDICTION The judgment of the court of appeals (App., infra, 1a-14a) was entered on January 29, 1986. A petition for rehearing was denied on May 1, 1986. On July 23, 1986, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including September 28, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 42 U.S.C. 2000e-2(a) provides in pertinent part: It shall be an unlawful employment practice for an employer -- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. 2000e-16(a) provides in pertinent part: All personnel actions affecting employees or applicants for employment * * * in the United States Postal Service * * * shall be made free from any discrimination based on race, color, religion, sex, or national origin. QUESTIONS PRESENTED 1. Whether a plaintiff can state a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., based on alleged disparate impact resulting from a subjective promotion practice or procedure. 2. Whether a plaintiff in a Title VII action establishes that a promotion procedure is prima facie unlawful merely by showing that the employer promotes from within in filling upper level positions requiring managerial ability and other special skills and that a gross disparity exists between the percentage of females occupying those upper level positions and low level positions in the employer's work force. STATEMENT 1. Respondent, Darlene Shidaker, served as acting postmaster and then as postmaster of a small post office in Kenilworth, Illinois from 1962 through 1982. During this time, she was in pay scale level-18. In 1977, the Postal Service advertised vacancies for three pay scale level-22 postmaster positions in other, larger post offices in Illinois. Respondent applied for all three positions. App., infra, 16a-19a. Pursuant to its regulations, the Postal Service convened a Screening Board to assess all applicants for the three vacancies. The Screening Board reviewed each applicant's work experience, educational background, performance appraisals, capacity for growth, and potential in management problem solving, employee development and relations, budget operations, work supervision, and public and community relations. The Screening Board then eliminated applicants lacking minimal qualifications, ranked the qualified candidates by tallying point scores assigned them by each of the Board members, and forwarded the names of the seven highest ranked applicants for each vacancy to a regional selection manager. That manager added the candidates on the Screening Board's list to a list of Postal Service employees who, by regulation, had an absolute right to be considered for the vacancies. From the combined list, the manager recommended five to seven candidates for each vacancy to a Regional Management Selection Board. The Regional Management Selection Board interviewed and evaluated each of these candidates and then recommended a single person for each vacancy to the Postmaster General. The Postmaster General made the final appointments. App., infra, 19a-24a. Respondent was the only female to apply for each of the three postmaster vacancies. She competed with 31 other applicants for two of those vacancies, and with 27 other applicants as to the third. The Screening Board found several instances of prior mismanagement in respondent's personnel history /1/ and determined, based on her composite personnel profile, that she was not among the top seven applicants for any of the available jobs. /2/ Accordingly, respondent was not further considered by the Postal Service for the vacant positions and did not receive a promotion. Respondent, however, believed that the Postal Service did not promote her because of her sex and, after exhausting her administrative remedies, filed this Title VII action in the United States District Court for the Northern District of Illinois. App., infra, 19a-24a. 2. The district court conducted a full trial concerning respondent's claims (App., infra, 16a). Respondent produced evidence showing that the Postal Service had a policy of promoting from within and that an arguably significant disparity existed between the percentage of females occupying low-level and high-level positions in the Postal Service's work force (App., infra, 19a, 24a-25a). /3/ The Postal Service responded with evidence explaining its promotion procedures, the special skills and training that postmasters must have, the fact that postmasters (including respondent) have in the past been promoted both from within and without the Postal Service work force, and the reasons that respondent was not promoted to any of the three vacancies (App., infra, 16a, 19a-24a, 38a-43a). The Postal Service also argued that, since she had not identified a facially neutral selection device which had injured her, respondent had not raised a legally cognizable disparate impact claim (Tr. 24-26, 427-430, 447-449). Respondent countered that the Postal Service's "whole promotion procedure" produced the "disparate impact" (id. at 454). After hearing all of the evidence and the parties' arguments concerning it, the district court concluded that the Postal Service had not discriminated against respondent in its promotion decisions -- under either a "disparate treatment" or a "disparate impact" theory (App., infra, 33a-43a). /4/ With regard to the "disparate treatment" issue, the court found that "(respondent) has not proved, by a preponderance of the evidence, that the Postal Service failed to promote her because she was a woman" (App., infra, 43a). The court said that the Postal Service had a "legitimate, nondiscriminatory business reason" for not promoting respondent -- i.e., that the three candidates actually promoted were either more qualified or had higher composite Screening Board ratings than did respondent (id. at 38a, 41a). Finally, it found that "the procedure used by the Postal Service to initially select candidates for promotion was permissible and without overt indicia of discrimination" (id. at 42a). With regard to the "disparate impact" issue, the court held that respondent had raised a legally cognizable discriminatory impact claim even though "the system attacked includes both objective and subjective parts" (App., infra, 35a). But the court also concluded that, where "management jobs which demand skills and training possessed by relatively few individuals" are in issue (id. at 37a), statistics showing a disparity -- even a gross disparity -- between the percentage of females in the lower and higher work force levels are not by themselves sufficient to establish discriminatory disparate impact (ibid.). Since respondent had not introduced evidence concerning the dates on which females had entered the Postal Service's work force, the number of females who had actually applied for promotions, the distribution of females by pay scale levels in the workforce, or the number of females who qualified for promotion, the court found her evidence of disparate impact wanting and granted judgment to the Postal Service on the disparate impact claim as well (ibid.). 3. The court of appeals affirmed in part, reversed in part, and remanded for further proceedings, (App., infra, 1a-14). The court agreed with the district court that respondent had not supported her allegations of disparate treatment (id. at 14a). However, the court allowed respondent to proceed on a disparate impact theory and disagreed with the district court's conclusion that respondent had failed to support her disparate impact claim. /5/ "Once (respondent) proved that the Postal Service promotes from within and introduced statistical evidence showing that there is a gross disparity between the percentage of women occupying lower level positions and upper level positions, she made a sufficient prima facie showing of discriminatory impact" (id. at 5a). Accordingly, the court remanded the case to the district court to allow the postal Service to bring forward evidence "that few women occupying lower level positions have applied for upper level positions or are qualified for upper level positions, or to bring forward evidence of the job relatedness of its promotion standards" (id. at 7a). REASONS FOR GRANTING THE PETITION This case presents two questions of continuing importance in the administration of Title VII: First, whether a Title VII plaintiff can state a cause of action based on an alleged disparate impact arising from a subjective decision-making process, /6/ and, second, whether a Title VII plaintiff establishes a prima facie disparate impact claim when she shows that her employer promotes from within in filling upper level positions requiring managerial ability and other special skills and that a gross disparity exists between the percentage of females occupying those upper level positions and the lower level positions in the employer's work force. We submit that both questions warrant this Court's review. 1. As to the first question, the Postal Service argued to both the district court and the court of appeals that respondent had not raised a legally cognizable disparate impact claim since she did not identify an objective, facially neutral practice or procedure that served disproportionately to limit, segregate, or classify female employees. Respondent countered that it is permissible for her to attack the Postal Service's decisionmaking process as a whole, notwithstanding its subjective character. The district court agreed with respondent, holding that "discriminatory impact analysis may be applied here, though the (multi-component) procedure which is challenged consists of subjective parts" (App., infra, 35a). The court of appeals affirmed. The decision of the court of appeals here conflicts with the decisions of other courts of appeals and represents an incorrect and unworkable application of the disparate impact doctrine. a. There is much confusion among the courts of appeals concerning whether a Title VII plaintiff can maintain a disparate impact cause of action without first identifying an objective employment practice or procedure that causes an alleged adverse impact. See generally B. Schlei & P. Grossman, Employment Discrimination Law 1288 (2d ed. 1983). The Second and Fourth Circuits have held that disparate impact analysis does not apply in challenges to subjective decisionmaking processes. See, e.g., Rossini v. Ogilvy & Mather, Inc., No. 85-7776 (2d Cir. Aug. 14, 1986), slip op.; EEOC v. Federal Reserve Bank, 698 F.2d 633, 638-639 (4th Cir. 1983), rev'd on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984); Stastny v. Southern Bell Telephone & Telegraph Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980). The First Circuit has expressed grave concerns about the theory's applicability to subjective decisionmaking processes. See, e.g., Latino Unidos v. Secretary of HUD, 41 Fair Empl. Prac. Cas. (BNA) 839, 848 (1st Cir. 1986); Robinson v. Polaroid Corp., 732 F.2d 1010, 1015 (1st Cir. 1984). By contrast, the Sixth, Eleventh, and District of Columbia Circuits have held that a disparate impact claim is cognizable even though an objective, facially neutral, employment practice has not been identified. See, e.g., Rowe v. Cleveland Pneumatic Co. Numerical Control, 690 F.2d 88, 93 (6th Cir. 1982); Griffin v. Carlin, 755 F.2d 1516, 1524-1525 (11th Cir. 1985); Segar v. Smith, 738 F.2d 1249, 1270-1272, 1288 n.4 (D.C. Cir. 1984), cert. denied, 471 U.S. 1115 (1985). The Courts of Appeals for the Fifth, /7/ Seventh, /8/ Eight, /9/ Ninth, /10/ and Tenth /11/ Circuits have found the issue so perplexing that panels within those circuits have reached conflicting answers. /12/ This Court's intervention is needed to resolve the conflicts and to settle the confusion that presently exists among the courts of appeals. b. On the merits, we submit that the court of appeals erred in allowing respondent to challenge the Postal Service's subjective, multi-component promotion procedure on a disparate impact theory. The court's holding on this issue is inconsistent with the decisions of this Court. By enacting Title VII, Congress in 1964 made clear that employers could no longer intentionally select among applicants and employees on the basis of race, sex, or other criteria listed in the statute (42 U.S.C. 2000e-2(a)(1)). Less clear, however, was whether employers could, in good faith and without intent to discriminate, continue to use standardized tests and other mechanical selection devices. See S. Rep. 91-1137, 91st Cong., 2d Sess. 4 (1970). For a number of reasons, employers often prefer to use objective rather than subjective selection procedures: Standardized selection devices are less expensive to administer; they produce consistent and comparable results; and, by depriving personnel officers of discretionary authority, they help ensure that Title VII's commands are obeyed by those with the greatest opportunity to abuse them. See Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach To Objective Criteria Of Hiring and Promotion, 82 Harv. L. Rev. 1598, 1637-1638 (1969). Because, however, it is difficult and expensive to fine-tune such objective devices so that they measure only qualities necessary to specific jobs, employers sometimes use tests and other specific qualifications that overstate what is necessary for competent performance and that, because of the lingering effects of society's past discrimination, may disproportionately exclude members of minority groups from various employment opportunities. See id. at 1638-1649; see generally Blumrosen, Strangers In Paradise: Griggs v. Duke Power Co. And The Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 66-75 (1972). It is against this background that the Court, in Griggs v. Duke Power Co., 401 U.S. 424 (1971), first approved the use of disparate impact theory to establish unlawful employment discrimination. In Griggs, the Court held that "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" (401 U.S. at 430). The Court determined that Congress had "required * * * the removal of artificial, arbitrary, and unnecessary barriers to employment" (id. at 431) and, in the Court's view, "employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability" constitute such artificial barriers (id. at 432). Thus, while the Court concluded that "(n)othing in the Act precludes the use of testing or measuring procedures" (id. at 436), it also determined that "Congress has forbidden * * * giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance" (ibid.) (emphasis added). Rather, the Court held, "Congress has commanded * * * that any tests used must measure the person for the job and not the person in the abstract" (ibid.). Thus, in approving use of the disparate impact theory, the Griggs Court was responding to the special exclusionary problems associated with the use of objective selection devices -- "practices, procedures or tests neutral on their face." This focus on the problems caused by objective selective devices reappears in the Court's subsequent disparate impact cases, each of which has involved an objective, facially neutral employment practice. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (written tests); General Electric Co. v. Gilbert, 429 U.S. 125 (1976) (exclusion from disability plan due to pregnancy); Dothard v. Rawlinson, 433 U.S. 321 (1977) (height and weight requirements); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) (rule denying accumulated seniority to employees returning to work after pregnancy); New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) (anti-narcotics rule); Connecticut v. Teal, 457 U.S. 440 (1982) (written examination). In contrast, where subjective selection devices have been in issue, and thus where the unique exclusionary problems associated with objective selection devices are not present, the Court has instead required plaintiffs to prove discriminatory motivation. See, e.g., Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) (subjective hiring practice); Hazelwood School Dist. v. United States, 433 U.S. 299 (1977) (same); Teamsters v. United States, 431 U.S. 324 (1977) (same); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (subjective refusal to rehire). Indeed, the Court has twice indicated that the reasoning of Griggs does not apply in cases where plaintiffs are challenging subjective decisionmaking processes. Most specifically, in Furnco Construction Corp. v. Waters, the Court expressly contrasted the selection device in issue -- an employer's subjective hiring practices -- with "employment tests * * * or particularized requirements such as the height and weight specifications * * *" (438 U.S. at 575 n.7). The Court determined that these subjective hiring practices should be assessed under the disparate treatment, and not under the disparate impact, framework (id. at 575 & n.7). /13/ More generally, in McDonnell Douglas Corp. v. Green, 411 U.S. at 805-807, the Court contrasted a subjective decision to dismiss an employee for misconduct with the type of objective decisionmaking processes at issue in Griggs. The Court noted that Griggs (411 U.S. at 806 (citation omitted)): * * * dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in * * * education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Respondent, however, appears in different clothing. * * * (His employer) does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification * * *. (His employer) assertedly rejected (him) for unlawful conduct * * * and * * * this cannot be thought the kind of "artificial, arbitrary, and unnecessary barriers to employment" which the Court found to be the intention of Congress to remove. Thus, the Court in McDonnell Douglas vacated a lower court decision that had apparently applied the Griggs requirement of "job-relatedness" to the reasons given to justify a subjective dismissal decision (411 U.S. at 805-806). The holdings in Furnco and McDonnell Douglas "derive from the basic distinction * * * between disparate impact and disparate treatment litigation" (3 A. Larson & L. Larson, Employment Discrimination Section 76.34, at 15-87 (1984)). Disparate impact litigation challenges "facially neutral" selection procedures -- i.e., employment practices that are mechanical in nature and that limit, segregate, or classify independently of operator bias. See Teamsters v. United States, 431 U.S. at 335-336 n.15. Disparate treatment litigation challenges "judgmental" selection -- i.e., the use or application of non-mechanical, operator-dependent procedures or criterion. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802-806; Teamsters v. United States, 431 U.S. at 335-336 n.15; Burrus v. United Tel. Co., 683 F.2d 339 (10th Cir.), cert. denied, 459 U.S. 1071 (1982); O'Brien v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir. 1982). When an employer's decisionmaking process is in part discretionary, "there is simply no 'neutral' factor involved. * * * (W)hat is going on is an ad hoc decision process in which a subjective judgment is being made about an individual" (3 A. Larson & L. Larson, supra, at 15-87 to 15-88; see also id. at 15-91 to 15-98). Accordingly, such subjective decisionmaking processes are rightly assessed only for their operator's motivation -- the sine qua non of a disparate treatment case. /14/ In suggesting that disparate impact theory is applicable only to objective (and not to subjective) decisionmaking processes, we do not imply that the line between subjective and objective decisionmaking processes -- and thus the line between cases subject to disparate impact and disparate treatment analysis -- is always obvious. We suggest, however, that the distinction turns on whether the decisionmaking process involves "quantifiable or objectively verifiable selection criteria which are mechanically applied * * *" (Zahorik v. Cornell University, 729 F.2d 85, 95 (2d Cir. 1984); see also McDonnell Douglas Corp. v. Green, 411 U.S. at 806 & n.21), and we believe that courts can reasonably make this determination. Here, of course, the district court did precisely that and found the process in issue to be partially subjective. See App., infra, 35a-36a. /15/ Allowing plaintiffs to proceed on a disparate impact theory against such decisionmaking processes, which are neither quantifiable or objectively verifiable, would have consequences incompatible with the policies underlying Title VII itself. Those consequences result from the different defenses legally available to employers in disparate treatment and disparate impact cases. In a disparate treatment case, after a plaintiff establishes an inference of discriminatory intent (by use of the McDonnell Douglas factors or by other circumstantial or statistical evidence), the employer must offer evidence of a legitimate, nondiscriminatory reason for the action it has taken. See Teamsters v. United States, 431 U.S. at 342; McDonnell Douglas Corp. v. Green, 411 U.S. at 802. Having weighed alternatives and exercised judgment, the employer is required to articulate the reasons it had for the actions it took, and in that way is given the chance to refute the inference that an improper discriminatory motive was at work. By contrast, in a disparate impact case, after a plaintiff establishes a statistically significant disparity in the treatment of majority and minority workers, the employer must "validate" the device that cause the disparity -- i.e., show by rigorous empirical proof that the selection device accurately assesses necessary job criteria. See Albemarle Paper Co. v. Moody, 422 U.S. at 425-436. While this is an extremely expensive and time-consuming process, /16/ written examinations, height and weight requirements, and other objective personnel selection devices arguably can be validated in this fashion. The same cannot be said of subjective selection processes: They are not susceptible to such rigorous validation and, practically speaking, may not be susceptible to validation at all. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 806 n.21; 3 A. Larson & L. Larson, supra, at 15-85 to 15-86; see also 29 C.F.R. 1607.6B(1). Thus, employers are inherently less able to show that a subjective decisionmaking process is justified by business necessity and, if plaintiffs are allowed to challenge subjective decisionmaking processes on a disparate impact theory, will have "little choice * * * but to engage in * * * subjective quota system(s) of employment selection." Albemarle Paper Co. v. Moody, 422 U.S. at 449 (Blackmun, J., concurring in the judgment); see also Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1133 (9th Cir. 1985) ("Were the facial-neutrality threshold to disappear or be ignored, * * * (r)ather than being an irrelevant factor as envisioned, race (or sex, etc.) could then become an overriding factor in employment decisions."). "This, of course, (would be) far from the intent of Title VII" (Albemarle Paper Co. v. Moody, 422 U.S. at 449) (Blackmun, J., concurring in the judgment). Title VII does "not require employers or labor unions to use racial quotas or to grant preferential treatment to racial minorities in order to avoid being charged with unlawful discrimination" (Sheet Metal Workers v. EEOC, No. 84-1656 (July 2, 1986), slip op. 27). To the contrary, it prohibits them from doing so. See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976); Firefighters v. Stotts, 467 U.S. 561, 589 n.4 (1984) (O'Connor, J., concurring). To be sure, in some circumstances, employers might avoid this dilemma by replacing their subjective decisionmaking processes with completely objective ones. But, for many employment decisions, especially decisions involving professional positions or managerial positions of the type that respondent sought here, objective criteria do not exist and cannot reasonably be derived. See Maltz, Title VII and Upper Level Employment -- A Response to Professor Bartholet, 77 Nw. U. L. Rev. 776, 787-788 (1983). Moreover, the "statute was not intended to 'diminish traditional management prerogatives'" (Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981) (quoting Steelworkers v. Weber, 443 U.S. 193, 207 (1979)), or to "impose a duty to adopt * * * procedure(s) that maximize() (selection) of minority employees" (Furnco Construction Corp. v. Waters, 438 U.S. at 577-578). The legislative history of Title VII demonstrates that Congress intended that "'management prerogatives, and union freedoms * * * be left undisturbed to the greatest extent possible.'" Steelworkers v. Weber, 443 U.S. at 206 (quoting H.R. Rep. 914, 88th Cong., 1st Sess. Pt. 2, at 29 (1963)). Congress simply did not intend to discourage employers from experimenting and using innovative personnel selection methods, or to require employers to use only objective selection devices. See Contreras v. City of Los Angeles, 656 F.2d 1267, 1278 (9th Cir. 1981), cert. denied, 455 U.S. 1021 (1982); 110 Cong. Rec. 11848 (1964) (remarks of Senator Humphrey) (Title VII does not "permit the Government to control the internal affairs of employers * * *"). Congress required only that employers' subjective decisions not be intentionally discriminatory. See Furnco Construction Corp. v. Waters, 438 U.S. at 575, 577-578. Significantly, in addition to her disparate impact claim, respondent raised a disparate treatment claim on which both the district court and the court of appeals found for the Postal Service. The district court expressly found that "the procedure used by the Postal Service to initially select candidates for promotion consideration was permissible and without overt indicia of discrimination" (App. infra, 42a). The court also found that the Postal Service had a "legitimate, nondiscriminatory reason" for not promoting respondent (id. at 41a). The court of appeals affirmed these findings. See App., infra, 14a. We submit that any additional inquiry into such promotion procedures will undermine the delicate accommodation of policies that Title VII makes. /17/ The contrary resolution of this issue by the court of appeals warrants review by this Court. 2. Assuming, arguendo, that the Postal Service's subjective promotion procedure can be challenged under the disparate impact theory, we further ask that the Court determine whether respondent's statistics were sufficient to establish that that procedure has a prima facie discriminatory impact. The district court held those statistics to be patently inadequate. It held that, where "management jobs which demand skills and training possessed by relatively few individuals" are in issue, statistics reflecting the selection rate rather than data relating only to some imbalance in the workforce are required to establish such a prima facie case (App., infra, 37a). The court of appeals reversed, holding that, "(o)nce (respondent) proved that the Postal Service promotes from within and introduced statistical evidence showing that there is a gross disparity between the percentage of women occupying lower level positions and upper level positions, she made a sufficient prima facie showing of discriminatory impact" (id. at 5a). This holding of the court of appeals is worthy of this Court's review. a. The court of appeals' holding is substantially inconsistent with the decisions of at least four other circuit courts dealing with the use of statistical proof in employment discrimination cases. /18/ In situations involving promotion or selection for higher level positions requiring special skills or abilities, the courts of appeals for the Second, Fourth, Fifth, and District of Columbia Circuits have all held that a plaintiff cannot establish a prima facie case merely by showing that the employer promotes from within and that there is an imbalance between minority representation in the higher and lower levels of the employer's workforce. See Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d 395, 400-401 (2d Cir. 1981); EEOC v. Radiator Specialty Co., 610 F.2d 178, 184-186 (4th Cir. 1979); EEOC v. Chesapeake & O. Ry., 577 F.2d 229, 233 (4th Cir. 1978); Rivera v. City of Wichita Falls, 665 F.2d 531, 546 (5th Cir. 1982); Metrocare v. Washington Metropolitan Area Transit Auth., 679 F.2d 922, 930 (D.C. Cir. 1982). Rather, in such cases, the courts have held that, to support an inference that minority employees have been selected at a substantially disproportionate rate, a Title VII plaintiff must offer evidence from which conclusions can reasonably be drawn about the results produced by the selection process. That is, the plaintiff must present evidence about the actual selections during the relevant time period and, in appropriate circumstances, evidence about the qualifications of those in the work force, the expressed interests of those minority persons in advancing to the positions in question, and/or, the actual group of candidates considered for promotion. Because respondent's statistical data says nothing about actual selections made, and does not account for any of these other critical variables, it cannot support any inference of a disproportionate selection rate (as the district court held). We therefore ask this Court to intervene and clarify the thresholds that a Title VII plaintiff's statistics must satisfy in order to establish a prima facie case of adverse selection. b. On the merits, we submit that the court of appeals erred in finding that respondent's quite limited statistical evidence, relating to the proportion of women in various parts of the Postal Service's work force, was sufficient to establish a prima facie case. Respondent demonstrated, and the district court found, that women occupied approximately one-fifth of both the overall Postal Service work force /19/ and the postmaster positions in the North Suburban MSC in 1978, the year of the challenged decisions. See App., infra, 5a n.1. Respondent also showed that none of the female postmasters were rated higher than pay scale level-20 and that 15 of the 23 female postmasters were at pay scale level-15 or below (ibid.). Finally, respondent demonstrated that, while the Postal Service has positions of unspecified description in the North Suburban MSC ranging as high as pay scale level-27, only five percent of the women in that work force were rated in pay scale levels-19 or higher (ibid.). These statistics are not probative of adverse selection. "Statistics * * * come in infinite variety and, like any other evidence, * * * their usefulness depends on all of the surrounding facts and circumstances" (Teamsters v. United States, 431 U.S. at 340). When properly constructed, statistics can aid in determining whether employment actions have resulted from discrimination or from legitimate, nondiscriminatory employment requirements (id. at 339-340). But, like other circumstantial evidence, statistics must meet certain thresholds of sufficiency if they are to be probative of discrimination. See ibid.; Bazemore v. Friday, No. 85-93 (July 1, 1986), slip op. 12-13 & n.10; see generally B. Schlei & P. Grossman, supra, at 1331-1346. Specifically, as noted in Dothard v. Rawlinson, 433 U.S. 321 (1977), the plaintiff's proof must create an inference that the "standards in question select applicants * * * in a significantly discriminatory pattern" (id. at 329) (emphasis added); see also 29 C.F.R. 1607.4 (EEOC Guidelines emphasizing that proof of disparate impact must focus on selection rates). In New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), the Court discussed deficiencies in statistical proof that prevent the drawing of any inference about the rate of selection. In Beazer, the plaintiffs challenged a public employer's policy against hiring persons on methadone maintenance. They claimed that the policy had a discriminatory disparate impact on blacks and Hispanics and, in that regard, introduced statistics showing that 63 to 65% of the persons in New York receiving methadone maintenance in public programs were black and Hispanic. But the Court found the plaintiffs' evidence too unrefined to be helpful (440 U.S. at 585): We do not know * * * how many of these persons ever worked for or sought to work for (this employer). Th(ese) statistic(s) revea(l) little if anything about the racial composition of the class of (this employer's) employees receiving methadone treatment. More particularly, it tells us nothing about the class of otherwise-qualified applicants and employees * * * improperly excluded (from) the * * * analysis. 4440 U.S. at 585-586. Thus, while the Court did not have to decide whether the plaintiffs' statistics actually established a prima facie case of disparate impact (because the employer showed that the challenged policy was job-related) (id. at 587), the Court emphasized that the plaintiffs' demonstration of the challenged policy's effect on applicants was "(a)t best * * * weak" (ibid.), and concluded that, "when the entire record is examined(,) it is clear that the two statistics on which (the plaintiffs) and the district court relied (did) not prove a violation of Title VII" (id. at 584). Like Griggs, Albemarle, and Dothard before it, Beazer teaches that, to establish a prima facie case of disparate impact, the plaintiff must create an inference that the selection procedure "select(s) applicants for hire or promotion in a racial (or gender) pattern significantly different from that of the pool of applicants" (Albemarle Paper Co. v. Moody, 422 U.S. at 425) or, in appropriate circumstances, in a pattern different from that of the general work force as a whole. See New York City Transit Authority v. Beazer, 440 U.S. at 584-587; see also Albemarle Paper Co. v. Moody, 422 U.S. at 425; Griggs v. Duke Power Co., 401 U.S. at 429-430; Dothard v. Rawlinson, 433 U.S. at 329. Statistics merely showing a disparity between levels of a work force will not do so. They show nothing about how many people were promoted or who among those promoted were male or female (or black or white). See New York City Transit Authority v. Beazer, 440 U.S. at 585-586; Rivera v. City of Wichita Falls, 665 F.2d at 546-547. Nor do such statistics address in any way whether members of the minority group were interested in, or considered for, the jobs in question. See New York City Transit Authority v. Beazer, 440 U.S. at 585-586. And they do not indicate what skills or training members of the identified labor pools have or can easily acquire. See Metrocare v. Washington Metropolitan Area Transit Auth., 679 F.2d at 930; cf. Mayor v. Educational Equality League, 415 U.S. 605, 619-621 (1974). Accordingly, both this Court and the courts of appeals have held that, where statistics do not expressly reflect or reasonably approximate the rates at which employees are selected, they do not establish an inference that the procedure has adversely selected minority employees. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. at 585-587; Hazelwood School Dist. v. United States, 433 U.S. at 308 n.13; Mayor v. Educational Equality League, 415 U.S. at 620-621; Rivera v. City of Wichita Falls, 665 F.2d at 546-547; Metrocare v. Washington Metropolitan Area Transit Auth., 679 F.2d at 930. /20/ Here, of course, respondent made no effort to account for any of the variables that this Court has indicated can be used to establish an inference of disparate selection rate. She presented no evidence about the relative numbers of men and women who have actually been promoted. She made no effort to account for the flow of applicants into and within the Postal Service's work force. She did not show the time period over which the disparity in minority representation had developed, or how women are distributed in the various pay scale levels. And, though the Postal Service "demonstrated that the persons selected to fill the vacancies were required to have high levels of management skills" (App., infra, 41a; see also id. at 35a-37a), and that numerous applicants were deemed lacking even the minimum qualifications necessary for promotion (id. at 20a), respondent presented no evidence about the qualifications of women in the lower levels of the work force. She showed only that the Postal Service has a policy of promoting from within and that an arguably gross disparity exists between the percentage of females occupying the low-level and high-level positions in the Postal Service's work force. Such proof sheds no light on the operation or exclusionary effects of the challenged promotion procedure and, accordingly, is insufficient to establish any inference of an adverse selection rate. Moreover, the Postal Service, by cross-examination and rebuttal, argued that respondent's statistics had no probative value whatsoever. It showed that, in each of the three promotions that respondent challenged, only one of approximately 30 applicants was female (and, thus, that females may not regularly seek promotion); that the Postal Service has in the past hired postmasters from outside of its own work force; that women have only recently begun to enter the Postal Service's work force in large numbers (and that this recent entrance may account for the high percentage of females in the lower levels); that pay scale level-22 jobs require unique management skills; and that the Postal Service denied respondent a promotion because other, more highly-skilled, employees were available. On the basis of this full evidentiary record, the district court held that respondent's statistics did not establish that the Postal Service had selected employees at a discriminatory rate. This finding is supported by the evidence and should have disposed of the case. In remanding the case with instructions that the Postal Service can rebut respondent's statistics only with "evidence of a low percentage of female applicants for upper level jobs or evidence of the lack of qualifications of women in lower level positions" (App., infra, 7a-8a.), the court of appeals has apparently dismissed out of hand the Postal Service's cross-examination and rebuttal testimony and held instead that gross statistical imbalances can be refuted only with applicant flow or qualifications data. This approach requires the Postal Service to bear the burden and expense of actually proving that its procedure does not have a disparate impact, rather than simply producing evidence to dispel any inference created by respondent's meager proof. In doing so, the court of appeals has reversed traditional burdens of proof in a way that will unnecessarily delay the resolution of legitimate Title VII suits, complicate and impede the prompt evaluation and disposition of frivolous Title VII claims, and further none of the policies that Title VII seeks to promote. /21/ This Court's review is warranted. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD WM. BRADFORD REYNOLDS Assistant Attorneys General DONALD B. AYER Deputy Solicitor General JAMES M. SPEARS MICHAEL CARVIN Deputy Assistant Attorneys General GLEN D. NAGER Assistant to the Solicotor General DAVID K. FLYNN E. ROY HAWKENS Attorneys SEPTEMBER 1986 /1/ Two members of the Screening Board had "first-hand knowledge of the conditions of the post office run by (respondent). (Mr.) Wright, as a postal inspector, had investigated an instance of poor security in connection with the issuance of money orders and he described (respondent's) management as sloppy. (Mr.) Wright * * * told the Screening Board that Christmas mail deliveries were two or three days late. (Mr.) Besteda also told the Screening Board that the Kenilworth post office was not well managed" (App., infra, 21a). /2/ The Screening Board ranked respondent thirteenth out of the 16 applicants that it deemed minimally qualified for the Glenview, Illinois postmaster position (App., infra, 21a). It ranked respondent sixteenth out of the 17 applicants that it deemed minimally qualified for the Palatine, Illinois postmaster position (id. at 21a-22a). And the Screening Board ranked respondent fifteenth out of the 17 applicants that it deemed minimally qualified for the Franklin Park, Illinois postmaster position (id. at 22a). /3/ Specifically, respondent introduced evidence showing that (App., infra, 36a-37a): In November, 1974, women held 20.8% of the positions in the Postal Service workforce. The percentage had moved to 23.5% by November 1980. Nationally, women held 11.5% of the positions at PES-15 and above in January, 1980. In 1978, the year of (respondent's) failed promotion, women occupied 23 of the 108 postmaster positions in the North Suburban MSC, or 21.2% of the total postmaster positions. However, none of the women postmasters were rated higher than PES-20 and 15 of them were at level PES-15 or lower. Additionally in 1977-1978 a total of 2,008 women were employed in the North Suburban MSC, 29.4% of the entire Postal Service workforce in the area. Despite that overall percentage, only four women or 5% (of those filing positions of PES-19 of higher) were rated in positions of PES-19 or higher. /4/ The district court also rejected respondent's claim that the Postal Service had retaliated against her in 1982 -- by reducing her in grade -- for initially raising her Title VII claim in 1978 (App., infra, 43a-47a). The court held that the Postal Service had demoted her for "misfeasance and malfeasance and not in retaliation for * * * her civil rights claim" (id. at 46a-47a). The court of appeals affirmed (App., infra, 8a-14a). The retaliation claim has no bearing on the issues raised by this petition and, accordingly, we discuss it no further. /5/ The court of appeals did not explicitly address in its opinion whether respondent's challenge to the Postal Service's subjective, multi-component promotion procedure presents a legally cognizable disparate impact claim. But the Postal Service fully briefed the issue as an alternative ground for affirming the district court's judgment. See Brief for the Defendant-Appellee at 14-17 (filed May 3, 1985); see also Appellee's Petition for Rehearing and Suggestion for Rehearing En Banc at 8-13 (filed Mar. 13, 1986). Thus, the Postal Service clearly raised the issue to the court below and, in deciding that respondent has in fact established a prima facie case of disparate impact, the court necessarily decided it. /6/ By "subjective decisionmaking process," we mean a decisionmaking process that is not exclusively comprised of "quantifiable or objectively verifiable selection criteria which * * * (can be) mechanically applied * * *" (Zahorik v. Cornell University, 729 F.2d 85, 95 (2d Cir. 1984)). We discuss this definitional issue more fully (page 15, & n.15 infra). /7/ Compare Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795, 800-801 (5th Cir. 1982) (disparate impact analysis does not apply to subjective, mixed-component employment decisions), and Pegues v. Mississippi State Employment Serv., 699 F.2d 760, 765 (5th Cir.), cert. denied, 464 U.S. 991 (1983) (same), with Page v. United States Industries, Inc., 726 F.2d 1038, 1045-1046 (5th Cir. 1984) (assessing lawfulness of a "subjective promotional system" under both disparate treatment and disparate impact analysis). /8/ Compare Coates v. Johnson & Johnson Co., 756 F.2d 524, 530-531 n.4 (7th Cir. 1985) (no disparate impact claim where no "facially neutral" rules identified), with Stewart v. General Motors Corp., 542 F.2d 445, 450-451 (7th Cir. 1976), cert. denied, 433 U.S. 919 (1977) ("highly subjective and loosely structured" promotion practices subject to disparate impact theory), and Regner v. City of Chicago, 789 F.2d 534, 539 (7th Cir. 1986) (same). /9/ Compare Taylor v. Teletype Corp., 648 F.2d 1129, 1132-1133 n.6 (8th Cir.), cert. denied, 454 U.S. 969 (1981) (disparate impact theory not available to challenge subjective decisionmaking process), Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir. 1981) (same), and Talley v. United States Postal Service, 720 F.2d 505, 507 (8th Cir. 1983), cert. denied, 466 U.S. 952 (1984) (same), with Gilbert v. City of Little Rock, 722 F.2d 1390, 1397-1398 (8th Cir. 1983), cert. denied 466 U.S. 972 (1984) (allowing plaintiff to use disparate impact theory without identifying an objective, neutral employment practice), and EEOC, v. Rath Packing Co., 787 F.2d 318, 328 (8th Cir. 1986), petition for cert. pending, No. 86-67 (same). /10/ Compare Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1131-1133 (9th Cir. 1985) (petition for rehearing en banc granted) (rejecting disparate impact challenge to subjective hiring procedures), with Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1148 (9th Cir. 1982) (applying disparate impact challenge to the absence of an objective promotion standard). /11/ Compare Mortensen v. Callaway, 672 F.2d 822, 824 (10th Cir. 1982) (plaintiff could not assert disparate impact claim since "she ha(d) not pointed to any employment practice that, neutral on its face, has caused women not to be promoted"), with Bauer v. Bailar, 647 F.2d 1037, 1043 (10th Cir. 1981) (applying disparate impact to subjective hiring and promotion decisions). /12/ To our knowledge, the Third Circuit has not yet addressed the issue. /13/ Justice Marshall dissented "from the Court's apparent decision * * * to foreclose on remand further litigation on the Griggs question of whether (the employer's) hiring practices had a disparate impact" (438 U.S. at 583) (Marshall, J., concurring in part and dissenting in part). /14/ Of course, a plaintiff can still use statistical evidence to prove disciminatory motivation. See Hazelwood School Dist. v. United States, 433 U.S. 299, 306-313 (1977); Teamsters v. United States, 431 U.S. at 335-336 n.15, 339-340 n.20. /15/ Because we suggest that only quantifiable or objectively verifiable decisionmaking processes are subject to disparate impact theory, we agree with Professor Larson that selection processes which include both objective and subjective components must be considered non-quantifiable or verifiable, and thus subjective. See 3 A. Larson & L. Larson, supra, at 15-91 to 15-98. In this case, the district court held that the Postal Service's promotion procedure is precisely such a mixed component system. See App., infra, 35a-36a. Accordingly, we believe that the courts below erred in allowing respondent to proceed on a disparate impact theory. Of course, even where a mixed-component selection process is involved, a plaintiff can challenge an objective component of that process for its own disparate impact. See Connecticut v. Teal, 457 U.S. 440 (1982). However, since respondent has not made any such allegation in this case, the decisions below cannot be defended on that basis. Finally, we note that this petition does not address the permissibility of a plaintiff pursuing a disparate impact claim directed at the bottom line results of a multi-step, but completely objective, decisionmaking process. Compare Pouncy v. Prudential Insurance Co. of America, 668 F.2d at 800-801 (suggesting that disparate impact theory never applies to any multi-component systems, even if completely objective), with Griffin v. Carlin, 755 F.2d at 1525 (suggesting that disparate impact theory always applies to all multi-component systems). That issue is not raised by the facts of this case, which involve the Postal Service's mixed-component promotion procedure. /16/ Lerner, Employment Discrimination: Adverse Impact, Validity, and Equality, 1979 Sup. Ct. Rev. 17, 18 n.6; Gwartney, Asher, Haworth & Haworth, Statistics, the Law, and Title VII: An Economist's View, 54 Notre Dame Law. 633, 643 (1979). /17/ Though the Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures (1978), 29 C.F.R. Pt. 1607, contain directives which point in different directions, those Guidelines are not inconsistent with the position taken here. The Guidelines provide that the "use of any selection procedure which has an adverse impact on * * * employment * * * opportunities of members of any race, sex, or ethnic group will be considered discriminatory * * * unless * * * the procedure has been validated * * * or the provisions of section 6 (of the Guideline) * * * are satisfied" (29 C.F.R. 1607.3A) (emphasis added). A "selection procedure" is defined to include "(a)ny measure, combination of measures, or procedure used as a basis for any employment decision(s) * * * includ(ing) the full range of assessment techniques from traditional paper and pencil tests * * * through informal or casual interviews and unscored application forms" (29 C.F.R. 1607.16Q). Section 6 of the Guidelines goes on to state, however, that "(t)here are circumstances in which a user cannot or need not utilize the validation techniques contemplated by these guidelines" (29 C.F.R. 1607.6B (emphasis added)), that such "circumstances" include the use of "informal or unscored selection procedure(s)" (Section 1607.6B(1)), and that where such informal or unscored selection procedures are involved, the user need only "justify continued use of the procedure(s) in accord with Federal law" (ibid.). See generally 43 Fed. Reg. 38290, 38291 & n.17 (1978); 44 Fed. Reg. 11196, 12001-12002 (1979). While the Guidelines do not expressly so state, we believe that an employer justifies "continued use of the procedure in accord with Federal law" by setting forth legitimate, nondiscriminatory reasons for maintaining the selection procedure and for applying it in particular cases, as is required in disparate treatment cases. See Teamsters v. United States, 431 U.S. at 342; McDonnell Douglas Corp. v. Green, 411 U.S. at 802. Otherwise, the Guidelines would leave the employer with no possible defense to a showing that its subjective decisionmaking process has an adverse impact and, as the inclusion of Section 6 indicates, the Guidelines clearly do not contemplate placing the employer in such a dilemma. /18/ The cases we cite include disparate treatment as well as disparate impact cases. In citing disparate treatment cases, we are not unmindful that the plaintiff in a disparate treatment case carries the added burden of proving discriminatory intent. See Teamsters v. United States, 431 U.S. at 335-336 n.15. However, where statistics are involved, both disparate treatment and disparate impact challenges to promotion procedures must, as a threshold requirement, present data sufficient to give rise to an inference of a substantially disproportionate rate of selection. See B. Schlei & P. Grossman, supra, at 1286-1289, 1331-1346. Accordingly, disparate treatment cases pointing out the insufficiencies of plaintiffs' prima facie statistical proofs are highly probative of the issue at hand. /19/ The statistics showed that between 1974 and 1980 the representation of women in the Postal Service work force changed from 20.8% to 23.5%. /20/ In Dothard, this Court accepted plaintiffs' "generalized national statistics" as a proxy for the potential applicant pool available to the employer. See Dothard v. Rawlinson, 433 U.S. at 330. But, in using these general availability figures, the Court still recognized that the ultimate question was whether the selection process in issue had a disproportionate exclusionary effect on women as compared to men. See id. at 329-330 & n.12. The Court did not simply inquire whether there were fewer women in the work force than in the general population. Moreover, the Dothard Court was only willing to use such generalized statistics because "there was no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national population" (433 U.S. at 330), and because "(t)he application process itself might not (have) adequately reflect(ed) the actual potential applicant pool, since otherwise qualified people might (have) be(en) discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory" (ibid.). The Dothard Court's use of such generalized data, therefore, does not excuse respondent, in a case involving promotions to management or higher level positions, from her ordinary burden of accounting for qualifications of potential applicants, actual applicant flow data, or at least actual selection rates. See New York City Transit Authority v. Beazer, 440 U.S. at 584-587; Dothard v. Rawlinson, 433 U.S. at 348-349 (opinion of White, J.) (arguing that plaintiff did not establish that all members of labor pool used were interested in job in issue); Rivera v. City of Wichita Falls, 655 F.2d at 546-547; Metrocare v. Washington Metropolitan Area Transit Auth., 679 F.2d at 930. /21/ That the district court found respondent to be less qualified than those actually promoted underscores the incorrectness of the court of appeals' remand. It is axiomatic that Title VII limits "make-whole" relief to those employees who would have received the contested benefit "but for" their sex (or race). See Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978); see also Arizona Governing Committee v. Norris, 463 U.S. 1073, 1080 (1983). Thus, the district court has no authority to order any relief for respondent, since she was refused "* * * advancement * * * for (a) reason other than discrimination on account of * * * sex * * *." 42 U.S.C. 2000e-5(g). The court of appeals' remand serves no readily apparent purpose. APPENDIX