This case involves the validity of a qualifying test administered to applicants for positions as police officers in the District of Columbia Metropolitan Police Department. The test was sustained by the District Court but invalidated by the Court of Appeals. We are in agreement with the District Court and hence reverse the judgment of the Court of Appeals.
This action began on April 10, 1970, when two Negro police officers filed suit against the then Commissioner of the District of Columbia, the Chief of the District’s Metropolitan Police Department, and the Commissioners of the United States Civil Service Commission. An amended complaint, filed December 10, alleged that the . . . Department’s recruiting procedures discriminated on the basis of race against black applicants by a series of practices including, but not limited to, a written personnel test which excluded a disproportionately high number of Negro applicants. These practices were asserted to violate respondents’ rights “under the due process clause of the Fifth Amendment to the United States Constitution, under 42 U.S.C. s 1981 and under D.C.Code s 1-320.” Defendants answered, and discovery various other proceedings followed. . . .
According to the findings and conclusions of the District Court, to be accepted by the Department and to enter an intensive 17-week training program, the police recruit was required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on “Test 21,” which is “an examination that is used generally throughout the federal service,” which “was developed by the Civil Service Commission, not the Police Department,” and which was “designed to test verbal ability, vocabulary, reading and comprehension.”
The validity of Test 21 was the sole issue before the court on the motions for summary judgment. The District Court noted that there was no claim of “an intentional discrimination or purposeful discriminatory acts” but only a claim that Test 21 bore no relationship to job performance and “has a highly discriminatory impact in screening out black candidates.” . . . the court nevertheless concluded that on the undisputed facts respondents were not entitled to relief. The District Court relied on several factors. Since August 1969, 44% Of new police force recruits had been black; that figure also represented the proportion of blacks on the total force and was roughly equivalent to 20- to 29-year-old blacks in the 50-mile radius in which the recruiting efforts of the Police Department had been concentrated. It was undisputed that the Department had systematically and affirmatively sought to enroll black officers many of whom passed the test but failed to report for duty. The District Court rejected the assertion that Test 21 was culturally slanted to favor whites and was “satisfied that the undisputable facts prove the test to be reasonably and directly related to the requirements of the police recruit training program and that it is neither so designed nor operated to discriminate against otherwise qualified blacks’ It was thus not necessary to show that Test 21 was not only a useful indicator of training school performance but had also been validated in terms of job performance “The lack of job performance validation does not defeat the Test, given its direct relationship to recruiting and the valid part it plays in this process.” The District Court ultimately concluded that “(t)he proof is wholly lacking that a police officer qualifies on the color of his skin rather than ability” and that the Department “should not be required on this showing to lower standards or to abandon efforts to achieve excellence.” . . . The Court of Appeals, over a dissent, reversed the judgment of the District Court and directed that respondents’ motion for partial summary judgment be granted. We granted the petition for certiorari . . .
As the Court of Appeals understood Title VII, employees or applicants proceeding under it need not concern themselves with the employer’s possibly discriminatory purpose but instead may focus solely on the racially differential impact of the challenged hiring or promotion practices. This is not the constitutional rule. We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today. . . .
As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies “any person . . . equal protection of the laws” simply because a greater proportion of Negroes fail to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular level of verbal skill; and it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the job requires special ability to communicate orally and in writing. Respondents, as Negroes, could no more successfully claim that the test denied them equal protection than could white applicants who also failed. The conclusion would not be different in the face of proof that more Negroes than whites had been disqualified by Test 21. That other Negroes also failed to score well would, alone, not demonstrate that respondents individually were being denied equal protection of the laws by the application of an otherwise valid qualifying test being administered to prospective police recruits.
Nor on the facts of the case before us would the disproportionate impact of Test 21 warrant the conclusion that it is a purposeful device to discriminate against Negroes and hence an infringement of the constitutional rights of respondents as well as other black applicants. As we have said, the test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. Even agreeing with the District Court that the differential racial effect of Test 21 called for further inquiry, we think the District Court correctly held that the affirmative efforts of the Metropolitan Police Department to recruit black officers, the changing racial composition of the recruit classes and of the force in general, and the relationship of the test to the training program negated any inference that the Department discriminated on the basis of race or that “a police officer qualifies on the color of his skin rather than ability.”
Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disprortionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be “validated” in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability, or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed. We are not disposed to adopt this more rigorous standard for the purposes of applying the Fifth and the Fourteenth Amendments in cases such as this
The submission of the defendants in the District Court was that Test 21 complied with all applicable statutory as well as constitutional requirements; and they appear not to have disputed that under the statutes and regulations governing their conduct standards similar to those obtaining under Title VII had to be satisfied. The District Court also assumed that Title VII standards were to control the case identified the determinative issue as whether Test 21 was sufficiently job related and proceeded to uphold use of the test because it was “directly related to a determination of whether the applicant possesses sufficient skills requisite to the demands of the curriculum a recruit must master at the police academy.” The Court of Appeals reversed because the relationship between Test 21 and training school success, if demonstrated at all, did not satisfy what it deemed to be the crucial requirement of a direct relationship between performance on Test 21 and performance on the policeman’s job. . . .
We agree with petitioners and the federal parties that this was error. The advisability of the police recruit training course informing the recruit about his upcoming job, acquainting him with its demands, and attempting to impart a modicum of required skills seems conceded. It is also apparent to us, as it was to the District Judge, that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen. Based on the evidence before him, the District Judge concluded that Test 21 was directly related to the requirements of the police training program and that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer. This conclusion of the District Judge that training-program validation may itself be sufficient is supported by regulations of the Civil Service Commission, by the opinion evidence placed before the District Judge, and by the current views of the Civil Service Commissioners who were parties to the case. Nor is the conclusion closed by either Griggs or Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); and it seems to us the much more sensible construction of the job-relatedness requirement.
The District Court’s accompanying conclusion that Test 21 was in fact directly related to the requirements of the police training program was supported by a validation study, as well as by other evidence of record;(1) and we are not convinced that this conclusion was erroneous. . . .
The judgment of the Court of Appeals accordingly is reversed.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
The Court holds that the job qualification examination (Test 21) given by the District of Columbia Metropolitan Police Department does not unlawfully discriminate on the basis of race under either constitutional or statutory standards.
Initially, it seems to me that the Court should not pass on the statutory questions, because they are not presented by this case. The Court says that respondents’ summary judgment motion “rested on purely constitutional grounds,” and that “the Court of Appeals erroneously applied the legal standards applicable to Title VII cases in resolving the constitutional issue before it.” There is a suggestion, however, that petitioners are entitled to prevail because they met the burden of proof . . . As I understand the opinion, the Court therefore holds that Test 21 is job-related . . . but not necessarily under Title VII. . . . If it was “plain error” for the Court of Appeals to apply a statutory standard to this case, as the Court asserts, then it is unfortunate that the Court does not recognize that it is also plain error to address the statutory issues in its opinion. . . .
In applying a Title VII test, both the District Court and the Court of Appeals held that respondents had offered sufficient evidence of discriminatory impact to shift to petitioners the burden of proving job relatedness. The Court does not question these rulings, and the only issue before us is what petitioners were required to show and whether they carried their burden. The Court agrees with the District Court’s conclusion that Test 21 was validated by a positive relationship between Test 21 scores and performance in police training courses. This result is based upon the Court’s reading of the record, its interpretation of instructions governing testing practices issued by the Civil Service Commission (CSC), and “the current views of the Civil Service Commissioners who were parties to the case.” . . .
But the CSC instructions cited by the Court do not support the District Court’s conclusion. More importantly, the brief filed in this Court by the CSC takes the position that petitioners did not satisfy the burden of proof imposed by the CSC guidelines. It also appears that longstanding regulations of the Equal Employment Opportunity Commission (EEOC) previously endorsed by this Court require a result contrary to that reached by the Court. Furthermore, the Court’s conclusion is inconsistent with my understanding of the interpretation of Title VII in Griggs and Albemarle. I do not find this conclusion “much more sensible” and with all respect I suggest that today’s decision has the potential of significantly weakening statutory safeguards against discrimination in employment. . . .
The provision cited by the Court requires that Test 21 “have a demonstrable and rational relationship to important job-related performance objectives identified by management.” “Success in training” is one example of a possible objective. The statistical correlation established by the Futransky validity study, was between applicants’ scores on Test 21 and recruits’ average scores on final examinations given during the police training course. . . .
“The documentary evidence submitted in the district court demonstrates that scores on Test 21 are predictive of Recruit School Final Averages. There is little evidence, however, concerning the relationship between the Recruit School tests and the substance of the training program, and between the substance of the training program and the post-training job of a police officer. It cannot be determined, therefore, whether the Recruit School Final Averages are a proper measure of success in training and whether the training program is job-relevant.” Brief for CSC 14-15
The CSC maintains that a positive correlation between scores on entrance examinations and the criterion of success in training may establish the job relatedness of an entrance test thus relieving an employer from the burden of providing a relationship to job performance after training but only subject to certain limitations.
The CSC’s standards thus recognize that Test 21 can be validated by a correlation between Test 21 scores and recruits’ averages on training examinations only if (1) the training averages predict job performance or (2) the averages are proved to measure performance in job-related training. There is no proof that the recruits’ average is correlated with job performance after completion of training. And although a positive relationship to the recruits’ average might be sufficient to validate Test 21 if the average were proved to reflect mastery of material on the training curriculum that was in turn demonstrated to be relevant to job performance, the record is devoid of proof in this regard. First, there is no demonstration by petitioners that the training-course examinations measure comprehension of the training curriculum; indeed, these examinations do not even appear in the record. Furthermore, the Futransky study simply designated an average of 85 on the examination as a “good” performance and assumed that a recruit with such an average learned the material taught in the training course.(2) Without any further proof of the significance of a score of 85, and there is none in the record, I cannot agree that Test 21 is predictive of “success in training.” . . .
The EEOC regulations require that the validity of a job qualification test be proved by “empirical 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.” This construction of Title VII was approved in Albemarle, where we quoted this provision and remarked that “(t)he message of these Guidelines is the same as that of the Griggs case.” The regulations also set forth minimum standards for validation and delineate the criteria that may be used for this purpose.
“The work behaviors or other criteria of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques, the appraisal form(s) and instructions to the rater(s) must be included as a part of the validation evidence. Such criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses.”
If we measure the validity of Test 21 by this standard, which I submit we are bound to do, petitioners’ proof is deficient in a number of ways similar to those noted above. First, the criterion of final training examination averages does not appear to be “fully described.” Although the record contains some general discussion of the training curriculum, the examinations are not in the record, and there is no other evidence completely elucidating the subject matter tested by the training examinations. Without this required description we cannot determine whether the correlation with training examination averages is sufficiently related to petitioners’ need to ascertain “job-specific ability.” Second, the EEOC regulations do not expressly permit validation by correlation to training performance, unlike the CSC instructions. Among the specified criteria the closest to training performance is “training time.” All recruits to the Metropolitan Police Department, however, go through the same training course in the same amount of time, including those who experience some difficulty. Third, the final requirement of [the EEOC regulations] has not been met. There has been no job analysis establishing the significance of scores on training examinations, nor is there any other type of evidence showing that these scores are of “major or critical” importance.
Accordingly, EEOC regulations that have previously been approved by the Court set forth a construction of Title VII that is distinctly opposed to today’s statutory result.
. . . Petitioners do not maintain that there is a demonstrated correlation between Test 21 scores and job performance. Moreover, their validity study was unable to discern a significant positive relationship between training averages and job performance.(3)Thus, there is no proof of a correlation either direct or indirect between Test 21 and performance of the job of being a police officer. . . .
Accordingly, accepting the Court’s assertion that it is necessary to reach the statutory issue, I would hold that petitioners have not met their burden of proof and affirm the judgment of the Court of Appeals.
1. The record includes a validation study of Test 21’s relationship to performance in the recruit training program. The study was made by D. L. Futransky of the Standards Division, Bureau of Policies and Standards, United States Civil Service Commission. App., at 99-109. Findings of the study included data “support(ing) the conclusion that T(est) 21 is effective in selecting trainees who can learn the material that is taught at the Recruit School.” . . .
2. The finding in the Futransky study on which the Court relies, was that Test 21 “is effective in selecting trainees who can learn the material that is taught at the Recruit School,” because it predicts averages over 85. On its face, this would appear to be an important finding, but the fact is that Everyone learns the material included in the training course. The study noted that all recruits pass the training examinations; if a particular recruit has any difficulty, he is given assistance until he passes.
3. Although the validity study found that Test 21 predicted job performance for white officers, no similar relationship existed for black officers. The same finding was made as to the relationship between training examination averages and job performance.