Wards Cove Packing Company, Inc. v. Atonio/Dissent Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.

Fully 18 years ago, this Court unanimously held that Title VII of the Civil Rights Act of 1964 ^[1] prohibits employment practices that have discriminatory effects as well as those that are intended to discriminate. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Federal courts and agencies consistently have enforced that interpretation, thus promoting our national goal of eliminating barriers th t define economic opportunity not by aptitude and ability but by race, color, national origin, and other traits that are easily identified but utterly irrelevant to one's qualification for a particular job. ^[2] Regrettably, the Court retreats from these efforts in its review of an interlocutory judgment respecting the "peculiar facts" of this lawsuit. ^[3] Turning a blind eye to the meaning and purpose of Title VII, the majority's opinion perfunctorily rejects a longstanding rule of law and underestimates the probative value of evidence of a racially stratified work force. ^[4] I cannot join this latest sojourn into judicial activism.

* I would have thought it superfluous to recount at this late date the development of our Title VII jurisprudence, but the majority's facile treatment of settled law necessitates such a primer. This Court initially considered the meaning of Title VII in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), in which a class of utility company employees challenged the conditioning of entry into higher paying jobs upon a high school education or passage of two written tests. Despite evidence that "these two requirements operated to render ineligible a markedly disproportionate number of Negroes," ^[5] the Court of Appeals had held that because there was no showing of an intent to discriminate on account of race, there was no Title VII violation. Id., at 429, 91 S.Ct. at 852. Chief Justice Burger's landmark opinion established that an employer may violate the statute even when acting in complete good faith without any invidious intent. ^[6] Focusing on § 703(a)(2), ^[7] he explained:

"The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, 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 429-430, 91 S.Ct., at 852-853.

The opinion in Griggs made it clear that a neutral practice that operates to exclude minorities is nevertheless lawful if it serves a valid business purpose. "The touchstone is business necessity," the Court stressed. Id., at 431, 91 S.Ct., at 853. Because "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation[,] . . . Congress has placed on the employer the burden of showing that an given requirement must have a manifest relationship to the employment in question." ^[8] Id., at 432, 91 S.Ct., at 854 (emphasis in original). Congress has declined to act-as the Court now sees fit-to limit the reach of this "disparate-impact" theory, see Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977); indeed it has extended its application. ^[9] This approval lends added force to the Griggs holding.

The Griggs framework, with its focus on ostensibly neutral qualification standards, proved inapposite for analyzing an individual employee's claim, brought under § 703(a)(1), ^[10] that an employer intentionally discriminated on account of race. ^[11] The means for determining intent absent direct evidence was outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), two opinions written by Justice Powell for unanimous Courts. In such a "disparate-treatment" case, see Teamsters, 431 U.S., at 335, n. 15, 97 S.Ct., at 1854, n. 15, the plaintiff's initial burden, which is "not onerous," 450 U.S., at 253, 101 S.Ct., at 1093, is to establish "a prima facie case of racial discrimination," 411 U.S., at 802, 93 S.Ct., at 1824, that is, to create a presumption of unlawful discrimination by "eliminat[ing] the most common nondiscriminatory reasons for the plaintiff's rejection." ^[12] 450 U.S., at 254, 101 S.Ct., at 1094. "The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." 411 U.S., at 802, 93 S.Ct., at 1824; see 450 U.S., at 254, 101 S.Ct., at 1094. Finally, because "Title VII does not . . . permit [the employer] to use [the employee's] conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1)," the employee "must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision." 411 U.S., at 804-805, 93 S.Ct., at 1825; see 450 U.S., at 256, 101 S.Ct., at 1095. While the burdens of producing evidence thus shift, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all tim § with the plaintiff." ^[13] 450 U.S., at 253, 101 S.Ct., at 1093.

Decisions of this Court and other federal courts repeatedly have recognized that while the employer's burden in a disparate-treatment case is simply one of coming forward with evidence of legitimate business purpose, its burden in a disparate-impact case is proof of an affirmative defense of business necessity. ^[14] Although the majority's opinion blurs that distinction, thoughtful reflection on common-law pleading principles clarifies the fundamental differences between the two types of "burdens of proof." ^[15] In the ordinary civil trial, the plaintiff bears the burden of persuading the trier of fact that the defendant has harmed her. See, e.g., 2 Restatement (Second) of Torts §§ 328 A, 433 B (1965) (hereinafter Restatement). The defendant may undercut plaintiff's efforts both by confronting plaintiff's evidence during her case in chief and by submitting countervailing evidence during its own case. ^[16] But if the plaintiff proves the existence of the harmful act, the defendant can escape liability only by persuading the factfinder that the act was justified or excusable. See, e.g., Restatement §§ 454-461, 463-467. The plaintiff in turn may try to refute this affirmative defense. Although the burdens of producing evidence regarding the existence of harm or excuse thus shift between the plaintiff and the defendant, the burden of proving either proposition remains throughout on the party asserting it.

In a disparate-treatment case there is no "discrimination" within the meaning of Title VII unless the employer intentionally treated the employee unfairly because of race. Therefore, the employee retains the burden of proving the existence of intent at all times. If there is direct evidence of intent, the employee may have little difficulty persuading the factfinder that discrimination has occurred. But in the likelier event that intent has to be established by inference, the employee may resort to the McDonnell/ Burdine inquiry. In either instance, the employer may undermine the employee's evidence but has no independent burden of persuasion.

In contrast, intent plays no role in the disparate-impact inquiry. The question, rather, is whether an employment practice has a significant, adverse effect on an identifiable class of w rkers-regardless of the cause or motive for the practice. The employer may attempt to contradict the factual basis for this effect; that is, to prevent the employee from establishing a prima facie case. But when an employer is faced with sufficient proof of disparate impact, its only recourse is to justify the practice by explaining why it is necessary to the operation of business. Such a justification is a classic example of an affirmative defense. ^[17]

Failing to explore the interplay between these distinct orders of proof, the Court announces that our frequent statements that the employer shoulders the burden of proof respecting business necessity "should have been understood to mean an employer's production-but not persuasion-burden." ^[18] Ante, at 660. Our opinions always have emphasized that in a disparate-impact case the employer's burden is weighty. "The touchstone," the Court said in Griggs, "is business necessity." 401 U.S., at 431, 91 S.Ct., at 853. Later, we held that prison administrators had failed to "rebu[t] the prima facie case of discrimination by showing that the height and weight requirements are . . . essential to effective job performance," Dothard v. Rawlinson, 433 U.S. 321, 331, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). Cf. n. 14, supra. I am thus astonished to read that the "touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. . . . [T]here is no requirement that the challenged practice be . . . 'essential,' " ante, at 659. This casual-almost summary-rejection of the statutory construction that developed in the wake of Griggs is most disturbing. I have always believed that the Griggs opinion correctly reflected the intent of the Congress that enacted Title VII. Even if I were not so persuaded, I could not join a rejection of a consistent interpretation of a federal statute. Congress frequently revisits this statutory scheme and can readily correct our mistakes if we misread its meaning. Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 644, 107 S.Ct. 1442, 1458, 94 L.Ed.2d 615 (1987) (STEVENS, J., concurring); Runyon v. McCrary, 427 U.S. 160, 190-192, 96 S.Ct. 2586, 2604-2605, 49 L.Ed.2d 415 (1976) (STEVENS, J., concurring). See McNally v. United States, 483 U.S. 350, 376, 107 S.Ct. 2875, 2890, 97 L.Ed.2d 292 (1987) (STEVENS, J., dissenting); Commissioner v. Fink, 483 U.S. 89, 102-105, 07 S.Ct. 2729, 2736-2738, 97 L.Ed.2d 74 (1987) (STEVENS, J., dissenting); see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 486, 109 S.Ct. 1917, 1922, 104 L.Ed.2d 526 (1989) (STEVENS, J., dissenting).

Also troubling is the Court's apparent redefinition of the employees' burden of proof in a disparate-impact case. No prima facie case will be made, it declares, unless the employees " 'isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities.' " Ante, at 656 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 2789, 101 L.Ed.2d 827 (1988) (plurality opinion)). This additional proof requirement is unwarranted. ^[19] It is elementary that a plaintiff cannot recover upon proof of injury alone; rather, the plaintiff must connect the injury to an act of the defendant in order to establish prima facie that the defendant is liable. E.g., Restatement § 430. Although the causal link must have substance, the act need not constitute the sole or primary cause of the harm. §§ 431-433; cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Thus in a disparate-impact case, proof of numerous questionable employment practices ought to fortify an employee's assertion that the practices caused racial disparities. ^[20] Ordinary principles of fairness require that Title VII actions be tried like "any lawsuit." Cf. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714, n. 3, 103 S.Ct. 1478, 1481, n. 3, 75 L.Ed.2d 403 (1983). The changes the majority makes today, tipping the scales in favor of employers, are not faithful to those principles.

Petitioners seek reversal of the Court of Appeals and dismissal of this suit on the ground that respondents' statistical evidence failed to prove a prima facie case of discrimination. Brief for Petitioners 48. The District Court concluded "there were 'significant disparities' " between the racial composition of the cannery workers and the noncannery workers, but it "made no precise numerical findings" on this and other critical points. See ante, at 650, n. 5. Given this dearth of findings and the Court's newly articulated preference for individualized proof of causation, it ould be manifestly unfair to consider respondents' evidence in the aggregate and deem it insufficient. Thus the Court properly rejects petitioners' request for a final judgment and remands for further determination of the strength of respondents' prima facie case. See ante, at 655. Even at this juncture, however, I believe that respondents' evidence deserves greater credit than the majority allows.

Statistical evidence of discrimination should compare the racial composition of employees in disputed jobs to that " 'of the qualified . . . population in the relevant labor market.' " Ante, at 650 (quoting Hazelwood School Dist. v. United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977)). That statement leaves open the definition of the qualified population and the relevant labor market. Our previous opinions, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 584-586, 99 S.Ct. 1355, 1365-1366, 59 L.Ed.2d 587 (1979); Dothard v. Rawlinson, 433 U.S., at 329-330, 97 S.Ct., at 2726-2727; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Griggs, 401 U.S., at 426, 430, n. 6, 91 S.Ct., at 851, 853, n. 6, demonstrate that in reviewing statistical evidence, a court should not strive for numerical exactitude at the expense of the needs of the particular case.

The District Court's findings of fact depict a unique industry. Canneries often are located in remote, sparsely populated areas of Alaska. 34 EPD ¶ 34,437, p. 33,825 (WD Wash.1983). Most jobs are seasonal, with the season's length and the canneries' personnel needs varying not just year to year but day to day. Ibid. To fill their employment requirements, petitioners must recruit and transport many cannery workers and noncannery workers from States in the Pacific Northwest. Id., at 33,828. Most cannery workers come from a union local based outside Alaska or from Native villages near the canneries. Ibid. Employees in the noncannery positions-the positions that are "at issue"-learn of openings by word of mouth; the jobs seldom are posted or advertised, and there is no promotion to noncannery jobs from within the cannery workers' ranks. Id., at 33,827-33,828.

In general, the District Court found the at-issue jobs to require "skills," ranging from English literacy, typing, and "ability to use seam micrometers, gauges, and mechanic's hand tools" to "good health" and a driver's license. ^[21] Id., at 33,833-33,834. All cannery workers' jobs, like a handful of at-issue positions, are unskilled, and the court found that the intensity of the work during canning season precludes on-the-job training for skilled noncannery positions. Id., at 33,825. It made no findings regarding the extent to which the cannery workers already are qualified for at-issue jobs: individual plaintiffs testified persuasively that they were fully qualified for such jobs, ^[22] but the court neither credited nor discredited this testimony. Although there are no findings concerning wage differentials, the parties seem to agree that wages for cannery workers are lower than those for noncannery workers, skilled or unskilled. The District Court found that "nearly all" cannery workers are nonwhite, while the percentage of nonwhites employed in the entire Alaska salmon canning industry "has stabilized at about 47% to 50%." Id., at 33,829. The precise stratification of the work force is not described in the findings, but the parties seem to agree that the noncannery jobs are predominantly held by whites.

Petitioners contend that the relevant labor market in this case is the general population of the " 'external' labor market for the jobs at issue." Brief for Petitioners 17. While they would rely on the District Court's findings in this regard, those findings are ambiguous. At one point the District Court specifies "Alaska, the Pacific Northwest, and California" as "the geographical region from which [petitioners] draw their employees," but its next finding refers to "this relevant geographical area for cannery worker, laborer, and other nonskilled jobs," 34 EPD ¶ 34,437, p. 33,828. There is no express finding of the relevant labor market for noncannery jobs.

Even assuming that the District Court properly defined the relevant geographical area, its apparent assumption that the population in that area constituted the "available labor supply," ibid., is not adequately founded. An undisputed requirement for employment either as a cannery or noncannery worker is availability for seasonal employment in the far reaches of Alaska. Many noncannery workers, furthermore, must be available for preseason work. Id., at 33,829, 33,833-33,834. Yet the record does not identify the portion of the general population in Alaska, California, and the Pacific Northwest that would accept this type of employment. ^[23] This deficiency respecting a crucial job qualification diminishes the usefulness of petitioners' statistical evidence. In contrast, respondents' evidence, comparing racial compositions within the work force, identifies a pool of workers willing to work during the relevant times and familiar with the workings of the industry. Surely this is more probative than the untailored general population statistics on which petitioners focus. Cf. Hazelwood, 433 U.S., at 308, n. 13, 97 S.Ct., at 2742, n. 13; Teamsters, 431 U.S., at 339-340, n. 20, 97 S.Ct., at 1856, n. 20.

Evidence that virtually all the employees in the major categories of at-issue jobs were white, ^[24] whereas about two-thirds of the cannery workers were nonwhite, ^[25] may not by itself suffice to establish a prima facie case of discrimination. ^[26] But such evidence of racial stratification puts the specific employment practices challenged by respondents into perspective. Petitioners recruit employees for at-issue jobs from outside the work force rather than from lower paying, overwhelmingly nonwhite, cannery worker positions. 34 EPD ¶ 34,437, pp. 33,828-33,829. Information about availability of at-issue positions is conducted by word of mouth; ^[27] therefore, the maintenance of housing and mess halls that separate the largely white noncannery work force from the cannery workers, id., at 33,836, 33,843-33,844, coupled with the tendency toward nepotistic hiring, ^[28] are obvious barriers to employment opportunities for nonwhites. Putting to one side the issue of business justifications, it would be quite wrong to conclude that these practices have no discriminatory consequence. ^[29] Thus I agree with the Court of Appeals, 827 F.2d 439, 444-445 (CA9 1987), that when the District Court makes the additional findings prescribed today, it should treat the evidence of racial stratification in the work force as a significant element of respondents' prima facie case.

The majority's opinion begins with recognition of the settled rule that that "a facially neutral employment practice may be deemed violative of Title VII without evidence of the employer's subjective intent to discriminate that is required in a 'disparate-treatment' case." Ante, at 645-646. It then departs from the body of law engendered by this disparateimpact theory, reformulating the order of proof and the weight of the parties' burdens. Why the Court undertakes these unwise changes in elementary and eminently fair rules is a mystery to me.

I respectfully dissent.

Notes

1. 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq.
2. Title VII also bars discrimination because of religion or sex. 42 U.S.C. § 2000e-2(a). Discrimination based on other characteristics has been challenged under other statutes. See, e.g., School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987) (determining scope of protection for handicapped schoolteacher under § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U.S.C. § 794); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) (Pregnancy Discrimination Act of 1978, Pub.L. 95-555, § 1, 92 Stat. 2076, 42 U.S.C. § 2000e(k)); Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq.); Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (Equal Pay Act of 1963, 77 Stat. 56, § 3, enacted as § 6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d)).
3. See ante, at 654. The majority purports to reverse the Court of Appeals but in fact directs the District Court to make additional findings, some of which had already been ordered by the Court of Appeals. Compare 827 F.2d 439, 445 (CA9 1987), with ante, at 657-658. Furthermore, nearly half the majority's opinion is devoted to two questions not fairly raised at this point: "the question of causation in a disparate impact case," ante, at 656, and the nature of the employer's defense, ante, at 658. Because I perceive no urgency to decide "these disputed questions," ante, at 650, at an interlocutory stage of such a factually complicated case, I believe the Court should have denied certiorari and allowed the District Court to make the additional findings directed by the Court of Appeals.
4. Respondents constitute a class of present and former employees of petitioners, two Alaskan salmon canning companies. The class members, described by the parties as "nonwhite," include persons of Samoan, Chinese, Filipino, Japanese, and Alaska Native descent, all but one of whom are United States citizens. 34 EPD ¶ 34,437, pp. 33,822, 33,836-33,838 (WD Wash.1983). Fifteen years ago they commenced this suit, alleging that petitioners engage in hiring, job assignment, housing, and messing practices that segregate nonwhites from whites in violation of Title VII. Evidence included this response in 1971 by a foreman to a college student's inquiry about cannery employment:
5. This Court noted that census statistics showed that in the employer's State, North Carolina, "while 34% of white males had completed high school, only 12% of Negro males had done so. . . . Similarly, with respect to standardized tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the blacks." Griggs, 401 U.S., at 430, n. 6, 91 S.Ct., at 853, n. 6.
6. "The Court of Appeals held that the Company had adopted the diploma and test requirements without any 'intention to discriminate against Negro employees.' We do not suggest that either the District Court or the Court of Appeals erred in examining the employer's intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." Id., at 432, 91 S.Ct., at 854 (emphasis added) (citation omitted).
7. See id., at 426, n. 1, 91 S.Ct., at 851, n. 1. This subsection provides that "[i]t shall be an unlawful employment practice for an employer-
8. The opinion concluded:
9. Voting Rights Act Amendments of 1982, Pub.L. 97-205, 96 Stat. 131, 134, as amended, codified at 42 U.S.C. §§ 1973, 1973b (1982 ed. and Supp. V). Legislative Reports leading to 1972 amendments to Title VII also evince support for disparate-impact analysis. H.R.Rep. No. 92-238, pp. 8, 20-22 (1971); S.Rep. No. 92-415, p. 5, and n. 1 (1971); accord, Connecticut v. Teal, 457 U.S. 440, 447, n. 8, 102 S.Ct. 2525, 2531, n. 8, 73 L.Ed.2d 130 (1982). Moreover, the theory is employed to enforce fair housing and age discrimination statutes. See Note, Business Necessity in Title VIII: Importing an Employment Discrimination Doctrine into the Fair Housing Act, 54 Ford.L.Rev. 563 (1986); Note, Disparate Impact Analysis and the Age Discrimination in Employment Act, 68 Minn.L.Rev. 1038 (1984).
10. This subsection makes it unlawful for an employer
11. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Justice Powell explained:
12. "This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id., at 802, 93 S.Ct., at 1824.
13. Although disparate impact and disparate treatment are the most prevalent modes of proving discrimination violative of Title VII, they are by no means exclusive. See generally B. Schlei & P. Grossman, Employment Discrimination Law 13-289 (2d ed. 1983) (four chapters discussing "disparate treatment," "present effects of past discrimination," "adverse impact," and "reasonable accommodation" as "categories" of discrimination). Cf. n. 4, supra. Moreover, either or both of the primary theories may be applied to a particular set of facts. See Teamsters v. United States, 431 U.S. 324, 336, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977).
14. See McDonnell Douglas, 411 U.S., at 802, n. 14, 93 S.Ct., at 1824, n. 14. See also, e.g., Teal, 457 U.S., at 446, 102 S.Ct., at 2530 ("employer must . . . demonstrate that 'any given requirement [has] a manifest relationship to the employment in question' "); New York City Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S.Ct. 1355, 1366, 59 L.Ed.2d 587 (1979) (employer "rebutted" prima facie case by "demonstration that its narcotics rule . . . 'is job related' "); Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977) (employer has to "prov[e] that the challenged requirements are job related"); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) (employer has "burden of proving that its tests are 'job related' "); Griggs, 401 U.S., at 432, 91 S.Ct., at 854 (employer has "burden of showing that any given requirement must have a manifest relationship to the employment"). Court of Appeals opinions properly treating the employer's burden include Bunch v. Bullard, 795 F.2d 384, 393-394 (CA5 1986); Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 572 (CA4 1985); Nash v. Jacksonville, 763 F.2d 1393, 1397 (CA11 1985); Segar v. Smith, 238 U.S.App.D.C. 103, 121, 738 F.2d 1249, 1267 (1984), cert. denied sub nom. Meese v. Segar, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); Moore v. Hughes Helicopters, Inc., Div. of Summa Corp., 708 F.2d 475, 481 (CA9 1983); Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810, 815 (CA8 1983); Johnson v. Uncle Ben's, Inc., 657 F.2d 750 (CA5 1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982); contra, Croker v. Boeing Co., 662 F.2d 975, 991 (CA3 1981) (en banc). Cf. Equal Employment Opportunity Comm'n, Uniform Guidelines on Employee Selection Procedures, 29 CFR § 1607.1 et seq. (1988).
15. See, e.g., 9 J. Wigmore, Evidence §§ 2485-2498 (J. Chadbourn rev.1981); D. Louisell & C. Mueller, Federal Evidence §§ 65-70 (1977) (hereinafter Louisell); 21 C. Wright & K. Graham, Federal Practice and Procedure § 5122 (1977) (hereinafter Wright); J. Thayer, A Preliminary Treatise on Evidence 353-389 (1898) (hereinafter Thayer); C. Langdell, Equity Pleading 108-115 (2d ed. 1883).
16. Cf. Thayer 357 (quoting Caldwell v. New Jersey S. B. Co., 47 N.Y. 282, 290 (1872)) (" 'The burden of maintaining the affirmative of the issue, and, properly speaking, the burden of proof, remained upon the plaintiff throughout the trial; but the burden or necessity was cast upon the defendant, to relieve itself from the presumption of negligence raised by the plaintiff's evidence' ").
17. Accord, Fed.Rule Civ.Proc. 8(c) ("In pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense"). Cf. Thayer 368-369:
18. The majority's only basis for this proposition is the plurality opinion in Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 997, 108 S.Ct. 2777, 2790, 101 L.Ed.2d 827 (1988), which in turn cites no authority. As Justice BLACKMUN explained in Watson, id., at 1001-1002, 108 S.Ct., at 2792-2793 (concurring in part and concurring in judgment), and as I have shown here, the assertion profoundly misapprehends the difference between disparate-impact and disparate-treatment claims.
19. The Solicitor General's brief amicus curiae on behalf of the employers agrees:
20. The Court discounts the difficulty its causality requirement presents for employees, reasoning that they may employ "liberal civil discovery rules" to obtain the employer's statistical personnel records. Ante, at 657. Even assuming that this generally is true, it has no bearing in this litigation, since it is undisputed that petitioners did not preserve such records. Brief for Respondents 42-43; Reply Brief for Petitioners 18-19.
21. The District Court found that of more than 100 at-issue job titles, all were skilled except these 15: kitchen help, waiter/waitress, janitor, oil dock crew, night watchman, tallyman, laundry, gasman, roustabout, store help, stockroom help, assistant caretaker (winter watchman and watchman's assistant), machinist helper/trainee, deckhand, and apprentice carpenter/carpenter's helper. 34 EPD ¶ 34,437, p. 33,835.
22. Some cannery workers later became architects, an Air Force officer, and a graduate student in public administration. Some had college training at the time they were employed in the canneries. See id., at 33,837-33,838; App. 38, 52-53; Tr. 76, 951-952, 1036, 1050, 2214.
23. The District Court's justification for use of general population statistics occurs in these findings of fact:
24. For example, from 1971 to 1980, there were 443 persons hired in the job departments labeled "machinists," "company fishing boat," and "tender" at petitioner Castle & Cooke, Inc.'s Bumble Bee cannery; only 3 of them were nonwhites. Joint Excerpt of Record 35 (Exh. 588). In the same categories at the Red Salmon cannery of petitioner Wards Cove Packing Co., Inc., 488 whites and 42 nonwhites were hired. Id., at 36 (Exh. 589).
25. The Court points out that nonwhites are "overrepresented" among the cannery workers. Ante, at 654. Such an imbalance will be true in any racially stratified work force; its significance becomes apparent only upon examination of the pattern of segregation within the work force. In the cannery industry nonwhites are concentrated in positions offering low wages and little opportunity for promotion. Absent any showing that the "underrepresentation" of whites in this stratum is the result of a barrier to access, the "overrepresentation" of nonwhites does not offend Title VII.
26. The majority suggests that at-issue work demands the skills possessed by "accountants, managers, boat captains, electricians, doctors, and engineers." See ante, at 651. It is at least theoretically possible that a disproportionate number of white applicants possessed the specialized skills required by some at-issue jobs. In fact, of course, many at-issue jobs involved skills not at all comparable to these selective examples. See 34 EPD ¶ 34,437, pp. 33,833-33,834. Even the District Court recognized that in a year-round employment setting, "some of the positions which this court finds to be skilled, e.g., truckdriving on the beach, [would] fit into the category of jobs which require skills that are readily acquirable by persons in the general public." Id., at 33,841.
27. As the Court of Appeals explained in its remand opinion:
28. The District Court found but downplayed the fact that relatives of employees are given preferential consideration. See 34 EPD ¶ 34,437, p. 33,840. But "of 349 nepotistic hires in four upper-level departments during 1970-75, 332 were of whites, 17 of nonwhites," the Court of Appeals noted. "If nepotism exists, it is by definition a practice of giving preference to relatives, and where those doing the hiring are predominantly white, the practice necessarily has an adverse impact on nonwhites." 827 F.2d, at 445.
29. The Court suggests that the discrepancy in economic opportunities for white and nonwhite workers does not amount to disparate impact within the meaning of Title VII unless respondents show that it is "petitioners' fault." Ante, at 651; see also ante, at 653-654. This statement distorts the disparate-impact theory, in which the critical inquiry is whether an employer's practices operate to discriminate. E.g., Griggs, 401 U.S., at 431, 91 S.Ct., at 853. Whether the employer intended § ch discrimination is irrelevant.