dition the awarding of backpay on a showing of "bad faith" would be to open an enormous chasm between injunctive and backpay relief under Title VII. There is nothing on the face of the statute or in its legislative history that justifies the creation of drastic and categorical distinctions between those two remedies.18

The District Court also grounded its denial of backpay on the fact that the respondents initially disclaimed any interest in backpay, first asserting their claim five years after the complaint was filed. The court concluded that the petitioners had been "prejudiced" by this conduct. The Court of Appeals reversed on the ground "that the broad aims of Title VII require that the issue of back pay be fully developed and determined even though it was not raised until the posttrial stage of litigation," 474 F. 2d, at 141.

It is true that Title VII contains no legal bar to raising backpay claims after the complaint for injunctive relief has been filed, or indeed after a trial on that complaint has been had. Furthermore, Fed. Rule Civ. Proc. 54 (c) directs that

"every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."

But a party may not be "entitled" to relief if its conduct of the cause has improperly and substantially prejudiced the other party. The respondents here were not merely tardy, but also inconsistent, in demanding backpay. To deny backpay because a particular cause has been prosecuted in an eccentric fashion, prejudicial to the other party, does not offend the broad purposes of Title VII. This is not to say, however, that the District Court's ruling was necessarily correct. Whether the petitioners were in fact prejudiced, and whether the respondents' trial conduct was excusable, are questions that will be open to review by the Court of Appeals, if the District Court, on remand, decides again to decline to make any award of backpay.20 But the standard of review will be the familiar one of whether the District Court was "clearly erroneous" in its factual findings and whether it "abused" its traditional discretion to locate "a just result" in light of the circumstances peculiar to the case, Lagnes v. Green, 282 U.S. 531, 541. On these issue of procedural regularity and prejudice, the "broad aims of Title VII” provide no ready solution.

In Griggs v. Duke Power Co., 401 U.S. 424, this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets "the burden of showing that any given requirement [has] . . . a manifest relation to the employment in question." Id., at 432. This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination-has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802. If an employer does then meet the burden of proving that its tests are "job related," it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in "efficient and trustworthy workmanship." Id., at 801. Such a showing would be evidence that the employer was using its tests merely as a "pretext" for discrimination. Id., at 804-805. In the present case, however, we are concerned only with the question whether Albemarle has shown its tests to be job related.

The concept of job relatedness takes on meaning from the facts of the Griggs case. A power company in North Carolina had reserved its skilled jobs for whites

18 We note that some courts have denied backpay, and limited their judgments to declaratory relief, in cases where the employer discriminated on sexual grounds in reliance on state "female protective" statutes that were inconsistent with Title VII. See, e.g., Kober v. Westinghouse Electric Corporation, 480 F. 2d 240; LeBlanc v. Southern Bell Telephone and Telegraph Co., 460 F. 2d 1228; Manning v. General Motors Corp., 466 F. 2d 812; Rosenfeld v. Southern Pacific Company, 444 F. 2d 1219. There is no occasion in this case to decide whether these decisions were correct. As to the effect of Title VII on state statutes inconsistent with it, see 42 U.S.C. § 2000e-7.

19 See Rosen v. Public Service Electric & Gas Co., supra, 409 F. 2d, at 780 n. 20; Robinson v. Lorillard Corp., supra, 444 F. 2d, at 802-803; United States v. Hayes International Corp., 456 F. 2d 112, 116 and 121.

20 The District Court's stated grounds for denying backpay were, apparently, cumulative rather than independent. The District Court may, of course, reconsider its backpay determination in light of our ruling on the "good faith" question.

21 In Griggs, the Court was construing 42 U.S.C. § 2000e-2 (h), which provides in pertinent part that it shall not "be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin."

56-250--75-17

prior to 1965. Thereafter, the company allowed Negro workers to transfer to skilled jobs, but all transferees-white and Negro-were required to attain national median scores on two tests,

"the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company's judgment that they generally would improve the overall quality of the work force" Griggs v. Duke Power Co., supra, at 428 and 431.

The Court took note of "the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability," and concluded:

"Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. ... What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract." Id., at 433 and 436.

Like the employer in Griggs, Albemarle uses two general ability tests, the Beta Examination, to test nonverbal intelligence, and the Wonderlic Test (Forms A and B), the purposed measure of general verbal facility which was also involved in the Griggs case. Applicants for hire into various skilled lines of progression at the plant are required to score 100 on the Beta Exam and 18 on one of the Wonderlic Test's two, alternate forms.22

The question of job relatedness must be viewed in the context of the plant's operation and the history of the testing program. The plant, which now employs about 650 persons, converts raw wood into paper products. It is organized into a number of functional departments, each with one or more distinct lines of progression, the theory being that workers can move up the line as they acquire the necessary skills. The number and structure of the lines has varied greatly over time. For many years, certain lines were themselves more skilled and paid higher wages than others, and until 1964 these skilled lines were expressly reserved for white workers. In 1968, many of the unskilled "Negro" lines were "end-tailed" on to skilled "white" lines, but it apparently remains true that at least the top jobs in certain lines require greater skills than the top jobs in other lines. In this sense, at least, it is still possible to speak of relatively skilled and relatively unskilled lines.

In the 1950's while the plant was being modernized with new and mole sophisticated equipment, the company introduced a high school diploma requirement for entry into the skilled lines. Though the company soon concluded that this requirement did not improve the quality of the labor force, the requirement was continued until the District Court enjoined its use. In the late 1950's the company began using the Beta Examination and the Bennett Mechanical Comprehensive Test (also involved in the Griggs case) to screen applicants for entry into the skilled lines. The Bennett test was dropped several years later, but use of the Beta test continued.23

The company added the Wonderlic Tests in 1963, for the skilled lines, on the theory that a certain verbal intelligence was called for by the increasing sophistication of the plant's operations. The company made no attempt to validate the test for job relatedness," and simply adopted the national "norm" score

22 Albemarle has informed us that it has now reduced the cut-off score to 17 on the Wonderlic test.

23 While the Company contends that the Bennett and Beta Tests were "locally validated" when they were introduced, no record of this validation was made. Plant officials could recall only the barest outlines of the alleged validation. Job relatedness cannot be proven through vague and insubstantiated hearsay.

24 As explained by the responsible plant official, the Wonderlic Test was chosen in rather casual fashion :

"I had had experience with using the Wonderlic before, which is a short form Verbal Intelligence Test, and knew that it had, uh, probably more validation studies behind it than any other short form Verbal Intelligence Test. So, after consultation we decided to institute the Wonderlic, in addition to the Beta, in view of the fact that the mill had changed quite a bit and it had become exceedingly more complex in operation. . . . We did not, uh, validate it, uh, locally, primarily, because of the, the expense of conducting such a

...

óf 18 as a cut-off point for new job applicants. After 1964, when it discontinued overt segregation of the lines of progression, the company allowed Negro workers to transfer to the skilled lines if they could pass the Beta and Wonderlic Tests, but few succeeded in doing so. Incumbents in the skilled lines, some of whom had been hired before adoption of the tests, were not required to pass them to retain their jobs or their promotion rights. The record shows that a number of white incumbents in high ranking job groups could not pass the test.2

25

Because departmental reorganization continued up to the point of trial, and has indeed continued since that point, the details of the testing program are less than clear from the record. The District Court found that, since 1963, the Beta and Wonderlic tests have been used in 13 lines of progression, within eight departments Albemarle contends that at present the tests are used in only eight lines of progression, within four departments.

Four months before this case went to trial, Albemarle engaged an expert in industrial psychology to "validate the job relatedness of its testing program. He spent a half day at the plant and devised a "concurrent" validation" study. which was conducted by plant officials, without his supervision. The expert then subjected the results to statistical analysis. The study dealt with 10 job groupings, selected from near the top of nine of the lines of progression.26 Jobs were grouped together solely by their proximity in the line of progression; no attempt was made to analyze jobs in terms of the particular skills they might require. All, or nearly all, employees in the selected groups participated in the study-105 employees in all, but only four Negroes. Within each job grouping, the study compared the test scores of each employee with an independent “ranking" of the employee, relative to each of his coworkers, made by two of the employee's supervisors. The supervisors, who did not know the test scores, were asked to

"determine which ones they felt irrespective of the job that they were actually doing, but in their respective jobs, did a better job than the person they were rating against. . . ." 27

For each job grouping, the expert computed the "Phi coefficient" of statistical correlation between the test scores and an average of the two supervisorial rankings. Consonant with professional conventions, the expert regarded as "statistically significant" any correlation that could have occurred by chance only five times, or less, in 100 trials.28 On the basis of these results, the District Court found that "[t]he personnel tests administered at the plant have undergone validation studies and have been proven to be job related." Like the Court of Appeals, we are constrained to disagree.

The EEOC has issued "Guidelines" for employers seeking to determine, through professional validation studies, whether their employment tests are job related. 29 CFR Part 1607 (1974). These Guidelines draw upon and make reference to professional standards of test validation established by the American Psychological Association." The EEOC Guidelines are not administrative “regulations" promulgated pursuant to formal procedures established by the Congress. But, as this Court has heretofore noted, they do constitute "[t]he administrative interpretation of the Act by the enforcing agency," and consequently

29

validation, and there were some other considerations such as uh, we didn't know whether we would get the co-operation of the employees that we'd need to validate it against in taking the test and we certainly have to have that, so, we used National Norms and on my suggestion after study of the Wonderlic and Norms had been established nationally for skilled jobs, we developed a, uh, cut-off score of eighteen (18)."

25 In the course of a 1971 validation effort, test scores were accumulated for 105 incumbent employees (101 of whom were white) working in relatively high ranking jobs. Some of these employees apparently took the tests for the first time as part of this study. The Company's expert testified that the test cutoff scores originally used to screen these incumbents for employment or promotion "couldn't have been very high scores because some of these guys tested very low, as low as 8 on the Wonderlic test and as low as 95 in the Beta. They couldn't have been using very high cut-off scores or they wouldn't have these low testing employees.'

26 See the charts appended to this opinion. It should be noted that testing is no longer required for some of the job groups tested.

27 This "standard" for the ranking was described by the plant official who oversaw the conduct of the study.

28 The results of the study are displayed on Chart A appended to this opinion.

29 American Psychological Association, Standards for Educational and Psychological Tests and Manuals (1966). A volume of the same title, containing modifications, was issued in 1974. The EEOC Guidelines refer to the APA Standards at 29 C.F.R. § 1607.5(a). Very similar guidelines have been issued by the Secretary of Labor for the use of federal contractors. 41 CFR § 60-3.1 et seq. (1974).

they are "entitled to great deference." Griggs v. Duke Power Co., supra, 401 U.S., at 433-434. See also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94.

The message of these Guidelines is the same as that of the Griggs case-that discriminatory 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" 29 CFR § 1607.4 (c).

Measured against the Guidelines, Albemarle's validation study is materially defective in several respects:

(1) Even if it had been otherwise adequate, the study would not have "validated" the Beta and Wonderlic test battery for all of the skilled lines of progression for which the two tests are, apparently, now required. The study showed significant correlations for the Beta Exam in only three of the eight lines. Though the Wonderlic Test's Form A and Form B are in theory identical and interchangeable measures of verbal facility, significant correlations for one Form but not for the other were obtained in four job groupings. In two job groupings neither Form showed a significant correlation. Within some of the lines of progression, one Form was found acceptable for some job groupings but not for others. Even if the study were otherwise reliable, this odd patchwork of results would not entitle Albemarle to impose its testing program under the Guidelines. A test may be used in jobs other than those for which it has been professionally validated only if there are "no significant differences" between the studied and unstudied jobs. 29 CFR § 1607.4 (c) (2). The study in this case involved no analysis of the attributes of, or the particular skills needed in, the studied job groups. There is accordingly no basis for concluding that "no significant differences" exist among the lines of progression, or among distinct job groupings within the studied lines of progression. Indeed, the study's checkered results appear to compel the opposite conclusion.

(2) The study compared test scores with subjective supervisorial rankings. While they allow the use of supervisorial rankings in test validation, the Guidelines quite plainly contemplate that the rankings will be elicited with far more care than was demonstrated here." Albemarle's supervisors were asked to rank employees by a "standard" that was exteremly vague and fatally open to divergent interpretations. Each "job grouping" contained a number of different jobs, and the supervisors were asked, in each grouping, to

"determine which ones [employees] they felt irrespective of the job that they were actually doing, but in their respective jobs, did a better job than the person they were rating against. . . ." 1

32

There is no way of knowing precisely what criteria of job performance the supervisors were considering, whether each of the supervisors was considering the same criteria-or whether, indeed any of the supervisors actually applied a focused and stable body of criteria of any kind. There is, in short, simply no way to determine whether the criteria acutally considered were sufficiently related to the Company's legitimate interest in job-specific ability to justify a testing system with a racially discriminatory impact.

(3) The company's study focused, in most cases, on job groups near the top f the various line of progression. In Griggs v. Duke Power Co., supra, the Court eft open "the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements fulfill a genuine

30 The Guidelines provide, at 29 CFR § 1607.5(b) (3) and (4): "(3) 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.

"(4) In view of the possibility of bias inherent in subjective evaluations, supervisory rating techniques should be carefully developed, and the ratings should be closely examined for evidence of bias. In addition, minorities might obtain unfairly low performance criterion scores for reasons other than supervisor's prejudice, as when, as new employees, they have had less opportunity to learn job skills. The general point is that all criteria need to be examined to insure freedom from factors which would unfairly depress the scores of minority groups.'

31 See n. 27, supra.

32 It cannot escape notice that Albemarle's study was conducted by plant officials, without neutral, on-the-scene oversight, at a time when this litigation was about to come to trial. Studies so closely controlled by an interested party in litigation must be examined with great care.

business need." 401 U.S., at 432. The Guidelines take a sensible approach to this issue, and we now endorse it:

"If job progression structures and seniority provisions are so established that new employees will probably, within a reasonable period of time and in a great majority of cases, progress to a higher level, it may be considered that candidates are being evaluated for jobs at that higher level. However, where job progression is not so nearly automatic, or the time span is such that higher level jobs or employees' potential may be expected to change in significant ways, it shall be considered that candidates are being evaluated for a job at or near the entry level." 29 CFR § 1607.4(c) (1).

The fact that the best of those employees working near the top of a line of progression score well on a test does not necessarily mean that that test, or some particular cutoff score on the test, is a permissible measure of the minimal qualifications of new workers, entering lower level jobs. In drawing any such conclusion, detailed consideration must be given to the normal speed of promotion, to the efficacy of on-the-job training in the scheme of promotion and to the possible use of testing as a promotion device, rather than as a screen for entry into low-level jobs. The District Court made no findings on these issues. The issues take on special importance in a case, such as this one, where incumbent employees are permitted to work at even high-level jobs without passing the company's test battery. See 29 CFR § 1607.11.

(4) Albermarle's validation study 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. The Standards of the American Psychological Association state that it is "essential" that

9 33

"[t]he validity of a test should be determined on subjects who are at the age or in the same educational or vocational situation as the persons for whom the test is recommended in practice." The EEOC Guidelines likewise provide that "[d]ata must be generated and results separately reported for minority or non-minority groups wherever technically feasible." 29 CFR § 1607.5 (b) (5). In the present case, such "differential validation" as to racial groups was very likely not “feasible,” because years of discrimination at the plant have insured that nearly all of the upper level employees are white. But there has been no clear showing that differential validation was not feasible for lower-level jobs. More importantly, the Guidelines provide:

"If it is not technically feasible to include minority employees in validation studies conducted on the present work force, the conduct of a validation study without minority candidates does not relieve any person of his subsequent obligation for validation when inclusion of minority candidates becomes technically feasible." 29 CFR § 1607.5(b) (1).

[E]vidence of satisfactory validity based on other groups will be regarded as only provisional compliance with the guidelines pending separate validation of the test for the minority groups in question." 29 CFR § 1607.5 (b) (5). For all these reasons, we agree with the Court of Appeals that the District Court erred in concluding that Albermarle had proved the job relatedness of its testing program and that the respondents were consequently not entitled to equitable relief. The outright reversal by the Court of Appeals implied that an injunction should immediately issue against all use of testing at the plant. Because of the particular circumstances of this case, however, it appears that the more prudent course is to leave to the District Court the precise fashioning of the necessary relief in the first instance. During the appellate stages of this litigation, the plant has apparently been amending its departmental organization and the use made of its tests. The appropriate standard of proof for job relatedness has not been clarified until today. Similarly, the respondents have not until today been specifically apprised of their opportunity to present evidence that even validated tests might be a "pretext" for discrimination in light of alternative selection procedures available to the company. We also note that the Guidelines authorize provisional use of tests, pending new validation efforts in certain very limited circumstances. 29 CFR § 1607.9. Whether such circumstances now obtain is a matter best decided, in the first instance, by the District Court. That court will be free to take such new evidence, and to ex

33 APA Standards, supra, n. 29, at ¶ C5.4.