Connecticut v. Teal

Facts

The statutory framework. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., reaches more than deliberate bias. Section 703(a)(2) makes it an unlawful employment practice for an employer “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” (Teal, supra, 457 U.S. at pp. 445–446, quoting 42 U.S.C. § 2000e-2(a)(2).) A companion provision, § 703(h), protects “professionally developed ability test[s]” so long as they are “not designed, intended or used to discriminate.” (Id. at pp. 451–452, quoting 42 U.S.C. § 2000e-2(h).)

The promotion process. Four respondents — Winnie Teal, Rose Walker, Edith Latney, and Grace Clark — were Black employees of the Department of Income Maintenance of the State of Connecticut. (Id. at p. 442.) Each had been “promoted provisionally to the position of Welfare Eligibility Supervisor and served in that capacity for almost two years.” (Id. at p. 443.) To attain permanent supervisory status, however, they “had to participate in a selection process that required, as the first step, a passing score on a written examination.” (Ibid.)

The disparate test results. The written test was administered on December 2, 1978, to 329 candidates, of whom 48 identified as Black and 259 as white. (Ibid.) With the passing score set at 65, “54.17 percent of the identified black candidates passed,” which “was approximately 68 percent of the passing rate for the identified white candidates.” (Ibid.) The four respondents were among the Black candidates who failed and were “thus excluded from further consideration for permanent supervisory positions.” (Id. at pp. 443–444.) Petitioners did not contest the District Court’s implicit finding that the examination produced disparate impact under the “eighty percent rule” of the EEOC’s Uniform Guidelines. (Id. at p. 444, fn. 4.)

The “bottom line.” More than a year after suit was filed and roughly a month before trial, petitioners made promotions from the eligibility list the test had generated, considering past performance, supervisor recommendations, and seniority, and applying what the Court of Appeals called “an affirmative-action program.” (Id. at p. 444.) The upshot: “of the 48 identified black candidates who participated in the selection process, 22.9 percent were promoted and of the 259 identified white candidates, 13.5 percent were promoted.” (Id. at pp. 444–445.) The Court observed that “[t]he actual promotion rate of blacks was thus close to 170 percent that of the actual promotion rate of whites.” (Id. at p. 444, fn. 6.) “It is this ‘bottom-line’ result, more favorable to blacks than to whites, that petitioners urge should be adjudged to be a complete defense to respondents’ suit.” (Id. at p. 445.)

Procedural history

Respondents sued the State of Connecticut, two state agencies, and two state officials in the United States District Court for the District of Connecticut, alleging that petitioners violated Title VII “by imposing, as an absolute condition for consideration for promotion, that applicants pass a written test that excluded blacks in disproportionate numbers and that was not job related.” (Id. at p. 444.) After trial, the District Court entered judgment for petitioners. (Id. at p. 445.) Although the court found that “the comparative passing rates for the examination indicated a prima facie case of adverse impact,” it held that “the result of the entire hiring process reflected no such adverse impact,” and that these “‘bottom-line’ percentages precluded the finding of a Title VII violation” — so the employer “was not required to demonstrate that the promotional examination was job related.” (Ibid.)

The United States Court of Appeals for the Second Circuit reversed, holding that the District Court “erred in ruling that the results of the written examination alone were insufficient to support a prima facie case of disparate impact in violation of Title VII.” (Ibid., citing 645 F.2d 133 (1981).) Where “an identifiable pass-fail barrier denies an employment opportunity to a disproportionately large number of minorities and prevents them from proceeding to the next step in the selection process,” the Court of Appeals reasoned, “that barrier must be shown to be job related.” (Ibid.) The Supreme Court granted certiorari (454 U.S. 813 (1981)) and affirmed. (Ibid.)

Issue

The Court framed the question narrowly: “whether an employer sued for violation of Title VII … may assert a ‘bottom-line’ theory of defense.” (Id. at p. 442.) Under that theory, “an employer’s acts of racial discrimination in promotions — effected by an examination having disparate impact — would not render the employer liable … if the ‘bottom-line’ result of the promotional process was an appropriate racial balance.” (Ibid.) Put doctrinally, the Court “must first decide whether an examination that bars a disparate number of black employees from consideration for promotion, and that has not been shown to be job related, presents a claim cognizable under Title VII.” (Id. at p. 445.)

Holding

Reasoning

The text of § 703(a)(2) targets barriers, not bottom lines. The Court grounded its holding in statutory language. The examination “barred promotion and had a discriminatory impact on black employees,” and so “clearly falls within the literal language of § 703(a)(2), as interpreted by Griggs.” (Id. at p. 448.) Critically, “[t]he statute speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities.” (Ibid.) When “an employer uses a non-job-related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier has a significant adverse effect … then the applicant has been deprived of an employment opportunity ‘because of … race, color, religion, sex, or national origin.’” (Id. at pp. 448–449.) The Court contrasted § 703(a)(1), which protects against discrimination in “compensation, terms, conditions or privileges of employment” and which, “if it were the only protection … might support petitioners’ exclusive focus on the overall result.” (Id. at p. 448, fn. 9.)

The Griggs line and the three-part framework. The Court anchored its analysis in Griggs v. Duke Power Co. (1971) 401 U.S. 424, which held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation,” such that “[i]f an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” (Teal, supra, 457 U.S. at pp. 446–447, quoting 401 U.S. at p. 431.) From Griggs and its progeny the Court drew the now-canonical three-step framework: the plaintiff “must show that the facially neutral employment practice had a significantly discriminatory impact”; if shown, “the employer must then demonstrate that ‘any given requirement [has] a manifest relationship to the employment in question’”; and even then “the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination.” (Id. at pp. 446–447.) Title VII, the Court reiterated, demands “the removal of artificial, arbitrary, and unnecessary barriers to employment” and forbids “procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups.” (Id. at pp. 447–448, quoting 401 U.S. at pp. 431–432.)

Precedent has always focused on the barrier, never the headcount. The Court canvassed its post-Griggs decisions to show that none measured impact “at the bottom line.” It “has consistently focused on employment and promotion requirements that create a discriminatory bar to opportunities” and “has never read § 703(a)(2) as requiring the focus to be placed instead on the overall number of minority or female applicants actually hired or promoted.” (Id. at p. 450.) In Dothard v. Rawlinson (1977) 433 U.S. 321, the Court’s “focus was not on this ‘bottom line’” of how many women held the jobs, but “instead on the disparate effect that the minimum height and weight standards had on applicants.” (Ibid.) In Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, the Court “did not suggest that by promoting a sufficient number of the black employees who passed the examination, the employer could avoid” the job-relatedness burden. (Ibid.) Synthesizing, the Court declared that to measure impact “only at the bottom line ignores the fact that Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria.” (Id. at p. 451.)

Section 703(h) is no “special haven” for discriminatory tests. The United States, as amicus, argued that the test was not “used to discriminate” under § 703(h) because it did not actually reduce the number of Black promotions. (Id. at p. 452.) The Court rejected the premise. Reviewing Griggs, it explained that Congress added § 703(h) “intended only to make clear that tests that were job related would be permissible despite their disparate impact,” and that the subsection “did not alter the meaning of Title VII, but ‘merely [clarified] its present intent and effect.’” (Ibid., quoting American Tobacco Co. v. Patterson (1982) 456 U.S. 63, 73, fn. 11.) Accordingly, “[a] non-job-related test that has a disparate racial impact, and is used to ‘limit’ or ‘classify’ employees, is ‘used to discriminate’ within the meaning of Title VII, whether or not it was ‘designed or intended’ to have this effect and despite an employer’s efforts to compensate for its discriminatory effect.” (Ibid.)

The individual, not the group, is the unit of protection. The decisive move came in Part III. Because § 703(a)(2) bars practices that “deprive or tend to deprive ‘any individual of employment opportunities,’” the Court held that “[t]he principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole.” (Id. at pp. 453–454.) Petitioners’ bottom-line defense “confuse[d] unlawful discrimination with discriminatory intent.” (Id. at p. 454.) A balanced workforce might rebut an inference of intentional discrimination, but “resolution of the factual question of intent is not what is at issue in this case.” (Ibid.) Rather, petitioners sought “to justify discrimination against respondents on the basis of their favorable treatment of other members of respondents’ racial group” — and “‘[a] racially balanced work force cannot immunize an employer from liability for specific acts of discrimination.’” (Ibid., quoting Furnco Construction Corp. v. Waters (1978) 438 U.S. 567, 579.) The obligation is “to provide an equal opportunity for each applicant regardless of race, without regard to whether members of the applicant’s race are already proportionately represented in the work force.” (Id. at pp. 454–455.) Drawing on Los Angeles Dept. of Water & Power v. Manhart (1978) 435 U.S. 702, 708, the Court emphasized that “fairness to the class … as a whole could not justify unfairness to the individual,” because the “statute’s focus on the individual is unambiguous.” (Id. at p. 455.)

Answering the facially-neutral objection. Petitioners noted that Furnco, Manhart, and Phillips v. Martin Marietta Corp. (1971) 400 U.S. 542 all involved facially discriminatory policies, whereas the test here was facially neutral. (Id. at p. 455.) The Court found the distinction immaterial: “irrespective of the form taken by the discriminatory practice, an employer’s treatment of other members of the plaintiffs’ group can be ‘of little comfort to the victims of … discrimination.’” (Ibid.) Title VII “does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired,” and “[t]hat answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory.” (Id. at pp. 455–456.)

Powell, J., dissenting. Justice Powell, joined by the Chief Justice and Justices Rehnquist and O’Connor, charged that the majority “blurs” the “critical difference” between disparate-treatment and disparate-impact claims. (Id. at p. 456 (dis. opn. of Powell, J.).) Disparate-impact theory, he wrote, “invites the plaintiff to prove discrimination by reference to the group rather than to the allegedly affected individual,” such that “[t]here can be no violation of Title VII on the basis of disparate impact in the absence of disparate impact on a group.” (Id. at pp. 458–459.) Having “undertaken to prove discrimination by reference to one set of group figures,” respondents could not then “deny petitioners the opportunity to rebut their evidence by introducing figures of the same kind.” (Id. at p. 459.) Powell would have decided the case “by reference to the total process,” under which “22.9% of the blacks who entered the selection process were ultimately promoted, compared with only 13.5% of the whites.” (Id. at p. 458.) He warned of practical fallout — that employers facing the ruling might “eliminate tests,” adopt “simple quota hiring,” or fold tests into a single discretionary decision, with the perverse risk of “employing fewer minority members.” (Id. at pp. 463–464.)

Significance

Teal is the Supreme Court’s definitive rejection of the “bottom-line” defense and a cornerstone of modern disparate-impact doctrine. Building on Griggs, it confirms that a Title VII plaintiff may attack a single discriminatory “pass-fail barrier” inside a larger selection process, even where the process as a whole yields a racially proportionate — or favorable — outcome. (Id. at p. 452.) The decision relocates the analytical focus from aggregate results to the specific gate the plaintiff was forced through, holding that “disparate impact should be measured” at that barrier and not “only at the bottom line.” (Id. at p. 451.) Its enduring contribution is the principle that Title VII protects “each applicant,” not the statistical fortunes of the applicant’s racial group. (Id. at pp. 454–455.) The holding has shaped how courts analyze multi-step hiring and promotion systems and how the EEOC processes individual charges. Its limits are equally important: the Court reaffirmed that job-related barriers survive (id. at p. 451), preserved the employer’s business-necessity defense (id. at pp. 446–447), and acknowledged that a balanced workforce remains relevant in disparate-treatment (intent) cases (id. at p. 454). For California practitioners, Teal’s framework is mirrored in CACI No. 2502 and informs the parallel disparate-impact analysis under the Fair Employment and Housing Act.

Key quotes

“The suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria.” (Teal, supra, 457 U.S. at p. 451.)

“The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority group as a whole.” (Id. at pp. 453–454.)

“Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired. That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory.” (Id. at pp. 455–456.)

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Practice pointer

Open questions

Was this examination actually job related? The Court did not decide. It held only that respondents’ rights are violated “unless petitioners can demonstrate that the examination given was not an artificial, arbitrary, or unnecessary barrier,” and remanded that factual question to the District Court. (Id. at pp. 451, 456.)

Was petitioners’ post-test selection truly an affirmative-action program? Petitioners contested the Court of Appeals’ characterization, and the Court declined to resolve it: “We have no need, however, to resolve this dispute in the context of the present controversy.” (Id. at p. 444, fn. 5.)

Does the prima facie case require focusing on the overall process or a single barrier? The dissent expressly flagged the issue — “[r]egardless of whether the plaintiff’s prima facie case must itself focus on the defendant’s overall selection process or whether it is sufficient that the plaintiff establish that at least one pass-fail barrier has resulted in disparate impact” — but the majority resolved the case without delineating that boundary. (Id. at p. 459, fn. 3 (dis. opn. of Powell, J.).)

How would an integrated, single-step decision fare? The dissent observed that an employer folding test results into “one overall hiring decision based on that ‘factor’ and additional factors” would not, “even under the Court’s reasoning, result in a finding of discrimination on the basis of disparate impact unless the actual hiring decisions had a disparate impact.” (Id. at p. 463, fn. 8.) The majority did not address this design directly.