Plainly, then, the District Court's findings relate to "reasons which, if applied generally, would not frustrate the central statutory purposes Ante, at 14. Because respondents waited five years before changing their original position disclaiming backpay and belatedly seeking it, thus suggesting that a desire to be "made whole" was not a major reason for their pursuit of this litigation, I cannot say that the District Court abused its discretion by denying that remedy,2 The Court's treatment of the testing issue is equally troubling. Its entire analysis is based upon a wooden application of EEOC Guidelines which, it says, are entitled to "great deference" as an administrative interpreptation of Title VII under Griggs v. Duke Power Co., 401 U.S. 424 (1971). The Court's reliance upon Griggs is misplaced. There we were dealing with Guidelines which state that a test must be demonstrated to be job-related before it can qualify for the exemption contained in § 703 (h) of Title VII as a devise not "designed, intended or used to discriminate . . . ." Because this interpretation of specific language was supported by both the Act and its legislative history, we observed that there was "good reason to treat the guidelines as expressing the will of Congress," 401 U.S., at 434. See also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 93–95 (1973). In contrast, the Guidelines upon which the Court now relies relate to methods for proving job-relatedness; they interpret no section of Title VII and are nowhere referred to in its legislative history. Moreover, they are not federal regulations which have been submitted to public comment and scrutiny as required by the Administrative Procedure Act. Thus, slavish adherence to the EEOC Guidelines regarding test validation should not be required; those provisions are, as their title suggests, guides entitled to the same weight as other wellfounded testimony by experts in the field of employment testing.

The District Court so considered the Guidelines in this case and resolved any conflicts in favor of Albemarle's experts. For example, with respect to the question whether validating tests for persons at or near the top of a line of progression "is a permissible measure of the minimal qualifications of new workers,” ante, at 27, the District Court found:

"The group tested was typical of employees in the skilled lines of progression. They were selected from the top and middle of various lines. Profsional studies have shown that when tests are validated, in such a narrow range of competence, there is a greater chance that the test will validate even a broader range, that is, if job candidates as well as present employees are tested." App., at 490-491.

Unless this Court is prepared to hold that this and similar factual findings are clearly erroneous, the District Court's conclusion that Albemarle had sustained its burden of showing that its tests were job-related is entitled to affirmance, if we follow traditional standards of review. At the very least, the case should be remanded to the Court of Appeals with instructions that it reconsider the testing issue, giving the District Court's findings of fact the deference to which they are entitled.

SUPREME COURT OF THE UNITED STATES

Nos. 74-389 and 74-428

ALBEMARLE PAPER COMPANY ET AL., PETITIONERS (74-389) v. JOSEPH P. MOODY

ET AL

HALIFAX LOCAL No. 425, UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO,
PETITIONER, (74-428) v. JOSEPH P. MOODY ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT.
June 25, 1975

Mr. JUSTICE REHNQUIST, concurring.

I join the opinion of the Court. The manner in which 42 U.S.C. § 2000 (e ) is construed has important consequences not only as to the circumstances under

2 As the Court points out, ante, at 17 n. 20, the District Court's reasons for denying backpay were cumulative. It did not favor one policy of Title VII to the exclusion of all others, as I fear this Court is now doing.

3 Such comment would not be a mere formality in light of the fact that many of the EEOC Guidelines are not universally accepted. For example, the Guideline relating to "differential validation," upon which the Court relies in this case, ante, at 27-28, has been questioned by the American Psychological Association. See United States v. Georgia Power Co., 474 F. 2d 906, 914 n. 8 (CA5-1974).

which backpay may be awarded, but also as to the method by which any such award is to be determined.

To the extent that an award of backpay were to be analogized to an award of damages, such an award upon proper proof would follow virtually as a matter of course from a finding that an employer had unlawfully discriminated contrary to the provisions of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103. Plaintiffs would be entitled to the benefit of the rule enunciated in Bigelow v. RKO Radio Pictures, 327, U.S. 251, 265:

""The constant tendency of the courts was to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery' for a proven invasion of the plaintiff's rights. Story Parchment Co. v. Patterson Co., [282 U.S. 555], 565."

But precisely to the extent that an award of backpay is thought to flow as a matter of course from a finding of wrongdoing, and thereby becomes virtually indistinguishable from an award for damages, the question (not raised by either party to this case, and therefore quite properly not discussed in the Court's opinion), of whether either party may demand a jury trial under the Seventh Amendment becomes critical. We said in Curtis v. Loether, 415 U.S. 189, 197 (1974) in explaining the difference between the provision for damages under § 812 of the Civil Rights Act of 1968 and the authorization for the award of backpay which we treat here:

"In Title VII cases, also, the courts have relied on the fact that the decision whether to award back pay is committed to the discretion of the trial judge. There is no comparable discretion here: If a plaintiff proves unlawful discrimination and actual damages, he is entitled to judgments for that amount... Whatever may be the merit of the 'equitable' characterization in Title VII cases, there is surely no basis for characterizing the award of compensatory and punitive damages here as equitable relief.” Id., at 197. (Footnote omitted.)

In Curtis, supra, the Court further quoted the description of the Seventh Amendment in Justice Story's opinion for this Court in Parsons v. Bedford, 3 Pet. 433, 446-447 (1830), to the effect that:

"In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal lights." To the extent, then, that the District Court retains substantial discretion as to whether or not to award backpay not withstanding a finding of unlawful discrimination, the nature of the jurisdiction which the Court exercises is equitable, and under our cases neither party may demand a jury trial. To the extent that discretion is replaced by awards which follow as a matter of course from a finding of wrongdoing, the action of the Court in making such awards could not be fairly characterized as equitable in character, and would quite arguably be subject to the provisions of the Seventh Amendment.

Thus I believe that the broad latitude which the Court's opinion reposes in the district courts in the decision as to whether backpay shall be awarded is not only consistent with the statute, but is supported by policy considerations which would favor the more expeditious disposition which may be made of numerous claims on behalf of frequently large classes by a court sitting without a jury. As the Court states, ante, at 12, the backpay remedy provided by Title VII is modeled on the remedial provisions of the NLRA. This Court spoke to the breadth of the latter provision in Phelps Dodge v. NLRB, 313 U.S. 177, 198 (1941) when it said:

"We must avoid the rigidities of an either-or rule. The remedy of back pay, it must be remembered, is entrusted to the Board's discretion; it is not mechanically compelled by the Act. And in applying its authority over back pay awards, the Board has not used stereotyped formulas but has availed itself of the freedom given it by Congress under the Act to obtain just results in diverse, complicated situations."

I agree nonetheless, with the Court that the District Court should not have denied backpay in this case simply on the ground that petitioner's breach of

Title VII had not been in "bad faith." Good faith is a necessary condition for obtaining equitable consideration, but in view of the narrower "good faith" defense created by statute, 42 U.S.C. §§ 2000 (e)-12 (b), it is not for this Court to expand such a defense beyond those situations to which Congress had made it applicable. I do not read the Court's opinion to say, however, that the facts upon which the District Court based its conclusion, ante, at 15 n. 15, would not have supported a finding that the conduct of petitioner was reasonable under the circumstances as well as being simply in good faith. Nor do I read the Court's opinion to say that such a combination of facts might not, in appropriate circumstances, be an adequate basis for denial of backpay. See Shaeffer v. San Diego Yellow Cabs, Inc., 462 F. 2d 1002, 1006 (CA9 1972); United States v. Georgia Power Co., 474 F. 2d 906, 922 (CA5 1973).

A cursory canvass of the decisions of the district courts and courts of appeals who confront these problems much more often than we do suggests that the most frequently recurring problem in this area is the difficulty of ascertaining a sufficient casual connection between the employer's conduct properly found to have been in violation of the statute and a ascertainable amount of backpay lost by a particular claimant as a result of that conduct. United States v. St. Louis & S. F. R. Co., 464 F. 2d 301, 311 (CA8 1972), cert. denied, 409 U.S. 1104 (1972). The Court of Appeals for the Eighth Circuit aptly described the difficulty of fashioning an award of backpay in the circumstances before it, and upheld the District Court's refusal to award backpay, in Norman v. Missouri Pacific Railroad, 497 F. 2d 594, 597 (CA8 1974), cert. denied, —U.S. (1975):

"No standard could determine the right to back pay itself nor the date from which to compute any right to back pay. Courts that have found back pay awards to the appropriate remedies in Title VII actions have generally recognized that such awards should be limited to actual damages .

As the Court recognizes, ante, at 17-18, another factor presented in the instant case which is relevant to the District Court's exercise of discretion is the possible detrimental reliance of petitioners on prior representations of respondents that they were not seeking classwide backpay. In 1966 respondents in replying to a motion for summary judgment expressly represented to the District Court that they had no interest in classwide backpay:

"It is important to understand the exact nature of the relief sought by plaintiffs. No money damages are sought for any member of the class not before the court. [T]he matter of specific relief for other class mem

bers is not before the court." App. at 13-14. Five years later, respondents reversed their position and asserted a claim for classwide backpay. Petitioners have argued here and below that they reasonably relied to their detriment on respondents' statement in numerous ways including an interim sale of the mill at a price which did not take into account the ruinous liability with which the new owners are now faced, failure to investigate and prepare defenses to individual backpay claims which are now nine years old, and failure to speed resolution of this lawsuit. 474 F. 2d., at 146 n. 2. This conduct by the respondents presents factual and legal questions to be resolved in the first instance by the District Court, reviewable only on whether its factual findings are "clearly erroneous" and whether its ultimate conclusion is an "abuse of discretion" under all the circumstances of this case. Ante, at 17-18. In the same manner that the good faith of an employer may not be viewed in isolation as precluding backpay under any and all circumstances, the excusable nature of respondents' conduct, if found excusable, will not necessarily preclude denial of a backpay award if petitioners are found to have substantially and justifiably relied on respondents' prior representations.

If the award of backpay is indeed governed by equitable considerations, and not simply a thinly disguised form of damages, factors such as these and others, which may argue in favor of or against the equities of either plaintiff or defendants, must be open for consideration by the District Court. It, like the Labor Board, must avail itself "of the freedom given it by Congress under the Act to obtain just results in diverse, complicated situations." Phelps Dodge v. NLRB, 313 U.S. 177, 198 (1941).

SUPREME COURT OF THE UNITED STATES

Syllabus

ALBEMARLE PAPER Co. ET AL.

v.

MOODY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT

No. 74-389. Argued April 14, 1975-Decided June 25, 1975*

Respondents, a certified class of present and former employees, brought this action against petitioners, their employer, Albemarle Paper Co., and the employees' union, seeking injunctive relief against "any policy, practice, custom, or usage" at the plant violative of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and after several years of discovery moved to add a class backpay demand. At the trial, the major issues were the plant's seniority system, its program of employment testing, and backpay. The District Court found that, following a reorganization under a new collective-bargaining agreement, the Negro employees had been "locked in the lower paying job classifications," and ordered petitioners to implement a system of plant-wide seniority. The court refused, however, to order backpay for losses sustained by the plaintiff class under the discriminatory system, on the ground that (1) Albemarle's breach of Title VII was found not to have been in "bad faith," and (2) respondents, who had initially disclaimed interest in backpay, had delayed making their backpay claim until five years after the complaint was filed, thereby prejudicing petitioners. The court also refused to enjoin or limit Albemarle's testing program, which respondents had contended had a disproportionate adverse impact on blacks and was not shown to be related to job performance, the court concluding that "personnel tests administered at the plant have undergone validation studies and have proven to be job related." Respondents appealed on the backpay and pre-employment tests issues. The Court of Appeals reversed the District Court's judgment. Held:

1. Given a finding of unlawful discrimination, backpay should be denied only for reasons that, if applied generally, would not frustrate the central statutory purposes manifested by Congress in enacting Title VII of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. Pp. 6–14.

2. The absence of bad faith is not a sufficient reason for denying backpay, Title VII not being concerned with the employer's "good intent or absence of discriminatory intent," for "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation," Griggs v. Duke Power Co., 401 U.S. 424, 432. Pp. 15–16.

3. Whether respondents' tardiness and inconsistency in making their backpay demand were excusable and whether they actually prejudiced petitioners are matters that will be open to review by the Court of Appeals if the District Court, on remand, decides again to decline a backpay award. Pp. 16-18.

4. As is clear from Griggs, supra, and the Equal Employment Opportunity Commission's Guidelines for employers seeking to determine through professional validation studies whether employment tests are job related, such tests are impermissible unless shown, by professionally acceptable methods, to be "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." Measured against that standard, Albemerle's validation study is materially defective in that (1) it would not, because of the odd patchwork of results from its application, have "validated" the two general ability tests used by Albemarle for all the skilled lines of progression for which the two tests are, apparently, now required; (2) it compared test scores with subjective supervisorial ranking, affording no means of knowing what job-performance criteria the supervisors were considering; (3) it focused mostly on job groups near the top of various lines of progression, but the fact that the test of those employees

*Together with No. 74-428, Halifax Local No. 425, United Papermakers & Paperworkers, AFL-CIO v. Moody et al., also on certiorari to the same court.

working near the top of a line of progression score well on a test does not necessarily mean that the test permissibly measures the qualifications of new workers, entering lower level jobs; and (4) it dealt only with job-experienced, white workers, but the tests themselves are given to new job applicants, who are younger, largely inexperienced, and in many instances nonwhite. Pp. 18-28.

5. In view of the facts that during the appellate stages of this litigation Albemarle has apparently been amending its departmental organization and the use made of its tests; that issues of standards of proof for job relatedness and of evidentiary procedures involving validation tests have not until now been clarified; and that provisional use of tests pending new validation efforts may be authorized, the District Court on remand should initially fashion the necessary relief. Pp. 28–29. 474 F. 2d 134, vacated and remanded.

STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, WHITE, MARSHALL, and REHNQUIST, JJ., joined. MARSHALL and REHNQUIST, JJ., filed concurring opinions. BURGER, C. J., filed an opinion concurring in part and dissenting in part. BLACKMUN, J., filed an opinion concurring in the judgment. POWELL, J., took no part in the consideration or decision of the cases.

SUPREME COURT OF THE UNITED STATES

Nos. 74-389 and 74-428

ALBEMARLE PAPER COMPANY ET AL., PETITIONERS, (74–389) v. JOSEPH P. MOODY

ET AL.

HALIFAX LOCAL No. 425, UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO, PETITIONER, (74-428) v. JOSEPH P. MOODY ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

June 25, 1975

MR. JUSTICE STEWART delivered the opinion of the Court.

These consolidated cases raise two important questions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. §§ 2000 (e): First: When employees or applicants for employment have lost the opportunity to earn wages because an employer has engaged in an unlawful discriminatory employment practice, what standards should a federal district court follow in deciding whether to award or deny backpay? Second: What must an employer show to establish that pre-employment tests racially discriminatory in effect, though not in intent, are sufficiently "job related" to survive challenge under Title VII?

I

The respondents-plaintiffs in the District Court-are a certified class of present and former Negro employees at a paper mill in Roanoke Rapids, North Carolina; the petitioners-defendants in the District Court-are the plant's owner, the Albemarle Paper Company, and the plant employees' labor union, Halifax Local No. 425.1 In August of 1966, after filing a complaint with the Equal Employment Opportunity Commission (EEOC), and receiving notice of their right to sue, the respondents brought a class action in the United States District Court for the Eastern District of North Carolina, asking permanent injunctive relief against "any policy, practice, custom, or usage" at the plant that violated Title VII. The respondents assured the court that the suit involved no claim for any monetary awards on a class basis, but in June of 1970, after several years of

1 The paper mill has changed hands during this litigation, but these changes are irrelevant to the issues considered in this opinion, and the employer interest will be referred to throughout as Albemarle or the Company. The labor union is involved in only the backpay aspect of this litigation.

2 The relevant procedures may be found at 42 U.S.C. $2000e-5(f) (1). See McDonnellDouglas Corp. v. Green, 411 U.S. 792, 798; Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45. See n. 8, infra.