John Paul Stevens

“ 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. ”

“ 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. ”

“ 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. ”

“ 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%." ”

“ 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. ”

“ 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. ”

“ 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.↑ 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." ”

“ 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. ”

“ 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. ”

“ Griggs, 401 U.S., at 430, n. 6, 91 S.Ct., at 853, n. 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." ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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' ") .↑ 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") . ”

“ 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. ”

“ 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. ”