PRESTON R. TISCH, IN HIS CAPACITY AS POSTMASTER GENERAL OF THE
UNITED STATES POSTAL SERVICE, PETITIONER V. DARLENE SHIDAKER

   No. 86-468

   In the Supreme Court of the United States

   October Term, 1986

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Seventh Circuit

   The Solicitor General, on behalf of Preston R. Tisch, in his
capacity as Postmaster General of the United States Postal Service,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Seventh Circuit in this case.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutues involved
   Question Presented
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                            OPINIONS BELOW

   The order of the United States Court of Appeals for the Seventh
Circuit denying rehearing en banc (App., infra, 48a-49a) is
unpublished.  The prior panel opinion of the court of appeals (App.,
infra, 1a-14a) is unpublished to date.  The opinion of the United
States District Court for the Northern District of Illinois (App.,
infra, 15a-47a) is published at 593 F. Supp. 823.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 1a-14a) was
entered on January 29, 1986.  A petition for rehearing was denied on
May 1, 1986.  On July 23, 1986, Justice O'Connor extended the time for
filing a petition for a writ of certiorari to and including September
28, 1986.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                           STATUTES INVOLVED

   42 U.S.C. 2000e-2(a) provides in pertinent part:

         It shall be an unlawful employment practice for an employer
         --

         (1) to fail or refuse to hire or to discharge any individual,
      or otherwise to discriminate against any individual with respect
      to his compensation, terms, conditions, or privileges of
      employment, because of such individual's race, color, religion,
      sex, or national origin;  or

         (2) to limit, segregate, or classify his employees or
      applicants for employment in any way which would deprive or tend
      to deprive any individual of employment opportunities or
      otherwise adversely affect his status as an employee, because of
      such individual's race, color, religion, sex, or national
      origin.

   42 U.S.C. 2000e-16(a) provides in pertinent part:

         All personnel actions affecting employees or applicants for
      employment * * * in the United States Postal Service * * * shall
      be made free from any discrimination based on race, color,
      religion, sex, or national origin.

                          QUESTIONS PRESENTED

   1. Whether a plaintiff can state a cause of action under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., based on
alleged disparate impact resulting from a subjective promotion
practice or procedure.

   2. Whether a plaintiff in a Title VII action establishes that a
promotion procedure is prima facie unlawful merely by showing that the
employer promotes from within in filling upper level positions
requiring managerial ability and other special skills and that a gross
disparity exists between the percentage of females occupying those
upper level positions and low level positions in the employer's work
force.

                               STATEMENT

   1. Respondent, Darlene Shidaker, served as acting postmaster and
then as postmaster of a small post office in Kenilworth, Illinois from
1962 through 1982.  During this time, she was in pay scale level-18.
In 1977, the Postal Service advertised vacancies for three pay scale
level-22 postmaster positions in other, larger post offices in
Illinois.  Respondent applied for all three positions.  App., infra,
16a-19a.

   Pursuant to its regulations, the Postal Service convened a
Screening Board to assess all applicants for the three vacancies.  The
Screening Board reviewed each applicant's work experience, educational
background, performance appraisals, capacity for growth, and potential
in management problem solving, employee development and relations,
budget operations, work supervision, and public and community
relations.  The Screening Board then eliminated applicants lacking
minimal qualifications, ranked the qualified candidates by tallying
point scores assigned them by each of the Board members, and forwarded
the names of the seven highest ranked applicants for each vacancy to a
regional selection manager.  That manager added the candidates on the
Screening Board's list to a list of Postal Service employees who, by
regulation, had an absolute right to be considered for the vacancies.
From the combined list, the manager recommended five to seven
candidates for each vacancy to a Regional Management Selection Board.
The Regional Management Selection Board interviewed and evaluated each
of these candidates and then recommended a single person for each
vacancy to the Postmaster General.  The Postmaster General made the
final appointments.  App., infra, 19a-24a.

   Respondent was the only female to apply for each of the three
postmaster vacancies.  She competed with 31 other applicants for two
of those vacancies, and with 27 other applicants as to the third.  The
Screening Board found several instances of prior mismanagement in
respondent's personnel history /1/ and determined, based on her
composite personnel profile, that she was not among the top seven
applicants for any of the available jobs.  /2/ Accordingly, respondent
was not further considered by the Postal Service for the vacant
positions and did not receive a promotion.  Respondent, however,
believed that the Postal Service did not promote her because of her
sex and, after exhausting her administrative remedies, filed this
Title VII action in the United States District Court for the Northern
District of Illinois.  App., infra, 19a-24a.

   2. The district court conducted a full trial concerning
respondent's claims (App., infra, 16a).  Respondent produced evidence
showing that the Postal Service had a policy of promoting from within
and that an arguably significant disparity existed between the
percentage of females occupying low-level and high-level positions in
the Postal Service's work force (App., infra, 19a, 24a-25a).  /3/ The
Postal Service responded with evidence explaining its promotion
procedures, the special skills and training that postmasters must
have, the fact that postmasters (including respondent) have in the
past been promoted both from within and without the Postal Service
work force, and the reasons that respondent was not promoted to any of
the three vacancies (App., infra, 16a, 19a-24a, 38a-43a).  The Postal
Service also argued that, since she had not identified a facially
neutral selection device which had injured her, respondent had not
raised a legally cognizable disparate impact claim (Tr. 24-26,
427-430, 447-449).  Respondent countered that the Postal Service's
"whole promotion procedure" produced the "disparate impact" (id. at
454).  After hearing all of the evidence and the parties' arguments
concerning it, the district court concluded that the Postal Service
had not discriminated against respondent in its promotion decisions --
under either a "disparate treatment" or a "disparate impact" theory
(App., infra, 33a-43a).  /4/

   With regard to the "disparate treatment" issue, the court found
that "(respondent) has not proved, by a preponderance of the evidence,
that the Postal Service failed to promote her because she was a woman"
(App., infra, 43a).  The court said that the Postal Service had a
"legitimate, nondiscriminatory business reason" for not promoting
respondent -- i.e., that the three candidates actually promoted were
either more qualified or had higher composite Screening Board ratings
than did respondent (id. at 38a, 41a).  Finally, it found that "the
procedure used by the Postal Service to initially select candidates
for promotion was permissible and without overt indicia of
discrimination" (id. at 42a).

   With regard to the "disparate impact" issue, the court held that
respondent had raised a legally cognizable discriminatory impact claim
even though "the system attacked includes both objective and
subjective parts" (App., infra, 35a).  But the court also concluded
that, where "management jobs which demand skills and training
possessed by relatively few individuals" are in issue (id. at 37a),
statistics showing a disparity -- even a gross disparity -- between
the percentage of females in the lower and higher work force levels
are not by themselves sufficient to establish discriminatory disparate
impact (ibid.).  Since respondent had not introduced evidence
concerning the dates on which females had entered the Postal Service's
work force, the number of females who had actually applied for
promotions, the distribution of females by pay scale levels in the
workforce, or the number of females who qualified for promotion, the
court found her evidence of disparate impact wanting and granted
judgment to the Postal Service on the disparate impact claim as well
(ibid.).

   3. The court of appeals affirmed in part, reversed in part, and
remanded for further proceedings, (App., infra, 1a-14).  The court
agreed with the district court that respondent had not supported her
allegations of disparate treatment (id. at 14a).  However, the court
allowed respondent to proceed on a disparate impact theory and
disagreed with the district court's conclusion that respondent had
failed to support her disparate impact claim.  /5/ "Once (respondent)
proved that the Postal Service promotes from within and introduced
statistical evidence showing that there is a gross disparity between
the percentage of women occupying lower level positions and upper
level positions, she made a sufficient prima facie showing of
discriminatory impact" (id. at 5a).  Accordingly, the court remanded
the case to the district court to allow the postal Service to bring
forward evidence "that few women occupying lower level positions have
applied for upper level positions or are qualified for upper level
positions, or to bring forward evidence of the job relatedness of its
promotion standards" (id. at 7a).

                   REASONS FOR GRANTING THE PETITION

   This case presents two questions of continuing importance in the
administration of Title VII:  First, whether a Title VII plaintiff can
state a cause of action based on an alleged disparate impact arising
from a subjective decision-making process, /6/ and, second, whether a
Title VII plaintiff establishes a prima facie disparate impact claim
when she shows that her employer promotes from within in filling upper
level positions requiring managerial ability and other special skills
and that a gross disparity exists between the percentage of females
occupying those upper level positions and the lower level positions in
the employer's work force.  We submit that both questions warrant this
Court's review.

   1. As to the first question, the Postal Service argued to both the
district court and the court of appeals that respondent had not raised
a legally cognizable disparate impact claim since she did not identify
an objective, facially neutral practice or procedure that served
disproportionately to limit, segregate, or classify female employees.
Respondent countered that it is permissible for her to attack the
Postal Service's decisionmaking process as a whole, notwithstanding
its subjective character.  The district court agreed with respondent,
holding that "discriminatory impact analysis may be applied here,
though the (multi-component) procedure which is challenged consists of
subjective parts" (App., infra, 35a).  The court of appeals affirmed.
The decision of the court of appeals here conflicts with the decisions
of other courts of appeals and represents an incorrect and unworkable
application of the disparate impact doctrine.

   a. There is much confusion among the courts of appeals concerning
whether a Title VII plaintiff can maintain a disparate impact cause of
action without first identifying an objective employment practice or
procedure that causes an alleged adverse impact.  See generally B.
Schlei & P. Grossman, Employment Discrimination Law 1288 (2d ed.
1983).  The Second and Fourth Circuits have held that disparate impact
analysis does not apply in challenges to subjective decisionmaking
processes.  See, e.g., Rossini v. Ogilvy & Mather, Inc., No. 85-7776
(2d Cir. Aug. 14, 1986), slip op.; EEOC v. Federal Reserve Bank, 698
F.2d 633, 638-639 (4th Cir. 1983), rev'd on other grounds sub nom.
Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984);  Stastny v.
Southern Bell Telephone & Telegraph Co., 628 F.2d 267, 274 n.10 (4th
Cir. 1980).  The First Circuit has expressed grave concerns about the
theory's applicability to subjective decisionmaking processes.  See,
e.g., Latino Unidos v. Secretary of HUD, 41 Fair Empl. Prac. Cas.
(BNA) 839, 848 (1st Cir. 1986);  Robinson v. Polaroid Corp., 732 F.2d
1010, 1015 (1st Cir. 1984).  By contrast, the Sixth, Eleventh, and
District of Columbia Circuits have held that a disparate impact claim
is cognizable even though an objective, facially neutral, employment
practice has not been identified.  See, e.g., Rowe v. Cleveland
Pneumatic Co. Numerical Control, 690 F.2d 88, 93 (6th Cir. 1982);
Griffin v. Carlin, 755 F.2d 1516, 1524-1525 (11th Cir. 1985);  Segar
v. Smith, 738 F.2d 1249, 1270-1272, 1288 n.4 (D.C. Cir. 1984), cert.
denied, 471 U.S. 1115 (1985).  The Courts of Appeals for the Fifth,
/7/ Seventh, /8/ Eight, /9/ Ninth, /10/ and Tenth /11/ Circuits have
found the issue so perplexing that panels within those circuits have
reached conflicting answers.  /12/ This Court's intervention is needed
to resolve the conflicts and to settle the confusion that presently
exists among the courts of appeals.

   b. On the merits, we submit that the court of appeals erred in
allowing respondent to challenge the Postal Service's subjective,
multi-component promotion procedure on a disparate impact theory.  The
court's holding on this issue is inconsistent with the decisions of
this Court.

   By enacting Title VII, Congress in 1964 made clear that employers
could no longer intentionally select among applicants and employees on
the basis of race, sex, or other criteria listed in the statute (42
U.S.C. 2000e-2(a)(1)).  Less clear, however, was whether employers
could, in good faith and without intent to discriminate, continue to
use standardized tests and other mechanical selection devices.  See S.
Rep. 91-1137, 91st Cong., 2d Sess. 4 (1970).  For a number of reasons,
employers often prefer to use objective rather than subjective
selection procedures:  Standardized selection devices are less
expensive to administer;  they produce consistent and comparable
results;  and, by depriving personnel officers of discretionary
authority, they help ensure that Title VII's commands are obeyed by
those with the greatest opportunity to abuse them.  See Cooper &
Sobol, Seniority and Testing Under Fair Employment Laws:  A General
Approach To Objective Criteria Of Hiring and Promotion, 82 Harv. L.
Rev. 1598, 1637-1638 (1969).  Because, however, it is difficult and
expensive to fine-tune such objective devices so that they measure
only qualities necessary to specific jobs, employers sometimes use
tests and other specific qualifications that overstate what is
necessary for competent performance and that, because of the lingering
effects of society's past discrimination, may disproportionately
exclude members of minority groups from various employment
opportunities.  See id. at 1638-1649;  see generally Blumrosen,
Strangers In Paradise:  Griggs v. Duke Power Co. And The Concept of
Employment Discrimination, 71 Mich. L. Rev. 59, 66-75 (1972).

   It is against this background that the Court, in Griggs v. Duke
Power Co., 401 U.S. 424 (1971), first approved the use of disparate
impact theory to establish unlawful employment discrimination.  In
Griggs, the Court held that "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 430).  The Court
determined that Congress had "required * * * the removal of
artificial, arbitrary, and unnecessary barriers to employment" (id. at
431) and, in the Court's view, "employment procedures or testing
mechanisms that operate as 'built-in headwinds' for minority groups
and are unrelated to measuring job capability" constitute such
artificial barriers (id. at 432).  Thus, while the Court concluded
that "(n)othing in the Act precludes the use of testing or measuring
procedures" (id. at 436), it also determined that "Congress has
forbidden * * * giving these devices and mechanisms controlling force
unless they are demonstrably a reasonable measure of job performance"
(ibid.) (emphasis added).  Rather, the Court held, "Congress has
commanded * * * that any tests used must measure the person for the
job and not the person in the abstract" (ibid.).

   Thus, in approving use of the disparate impact theory, the Griggs
Court was responding to the special exclusionary problems associated
with the use of objective selection devices -- "practices, procedures
or tests neutral on their face." This focus on the problems caused by
objective selective devices reappears in the Court's subsequent
disparate impact cases, each of which has involved an objective,
facially neutral employment practice.  See, e.g., Albemarle Paper Co.
v. Moody, 422 U.S. 405 (1975) (written tests);  General Electric Co.
v. Gilbert, 429 U.S. 125 (1976) (exclusion from disability plan due to
pregnancy);  Dothard v. Rawlinson, 433 U.S. 321 (1977) (height and
weight requirements);  Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)
(rule denying accumulated seniority to employees returning to work
after pregnancy);  New York City Transit Authority v. Beazer, 440 U.S.
568 (1979) (anti-narcotics rule);  Connecticut v. Teal, 457 U.S. 440
(1982) (written examination).

   In contrast, where subjective selection devices have been in issue,
and thus where the unique exclusionary problems associated with
objective selection devices are not present, the Court has instead
required plaintiffs to prove discriminatory motivation.  See, e.g.,
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) (subjective
hiring practice);  Hazelwood School Dist. v. United States, 433 U.S.
299 (1977) (same);  Teamsters v. United States, 431 U.S. 324 (1977)
(same);  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
(subjective refusal to rehire).  Indeed, the Court has twice indicated
that the reasoning of Griggs does not apply in cases where plaintiffs
are challenging subjective decisionmaking processes.

   Most specifically, in Furnco Construction Corp. v. Waters, the
Court expressly contrasted the selection device in issue -- an
employer's subjective hiring practices -- with "employment tests * * *
or particularized requirements such as the height and weight
specifications * * *" (438 U.S. at 575 n.7).  The Court determined
that these subjective hiring practices should be assessed under the
disparate treatment, and not under the disparate impact, framework
(id. at 575 & n.7).  /13/

   More generally, in McDonnell Douglas Corp. v. Green, 411 U.S. at
805-807, the Court contrasted a subjective decision to dismiss an
employee for misconduct with the type of objective decisionmaking
processes at issue in Griggs.  The Court noted that Griggs (411 U.S.
at 806 (citation omitted)):

      * * * dealt with standardized testing devices which, however
      neutral on their face, operated to exclude many blacks who were
      capable of performing effectively in the desired positions.
      Griggs was rightly concerned that childhood deficiencies in * *
      * education and background of minority citizens, resulting from
      forces beyond their control, not be allowed to work a cumulative
      and invidious burden on such citizens for the remainder of their
      lives.  Respondent, however, appears in different clothing.  * *
      * (His employer) does not seek his exclusion on the basis of a
      testing device which overstates what is necessary for competent
      performance, or through some sweeping disqualification * * *.
      (His employer) assertedly rejected (him) for unlawful conduct *
      * * and * * * this cannot be thought the kind of "artificial,
      arbitrary, and unnecessary barriers to employment" which the
      Court found to be the intention of Congress to remove.

Thus, the Court in McDonnell Douglas vacated a lower court decision
that had apparently applied the Griggs requirement of
"job-relatedness" to the reasons given to justify a subjective
dismissal decision (411 U.S. at 805-806).

   The holdings in Furnco and McDonnell Douglas "derive from the basic
distinction * * * between disparate impact and disparate treatment
litigation" (3 A. Larson & L. Larson, Employment Discrimination
Section 76.34, at 15-87 (1984)).  Disparate impact litigation
challenges "facially neutral" selection procedures -- i.e., employment
practices that are mechanical in nature and that limit, segregate, or
classify independently of operator bias.  See Teamsters v. United
States, 431 U.S. at 335-336 n.15.  Disparate treatment litigation
challenges "judgmental" selection -- i.e., the use or application of
non-mechanical, operator-dependent procedures or criterion.  See
McDonnell Douglas Corp. v. Green, 411 U.S. at 802-806;  Teamsters v.
United States, 431 U.S. at 335-336 n.15;  Burrus v. United Tel. Co.,
683 F.2d 339 (10th Cir.), cert. denied, 459 U.S. 1071 (1982);  O'Brien
v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir. 1982).  When an employer's
decisionmaking process is in part discretionary, "there is simply no
'neutral' factor involved.  * * * (W)hat is going on is an ad hoc
decision process in which a subjective judgment is being made about an
individual" (3 A. Larson & L. Larson, supra, at 15-87 to 15-88;  see
also id. at 15-91 to 15-98).  Accordingly, such subjective
decisionmaking processes are rightly assessed only for their
operator's motivation -- the sine qua non of a disparate treatment
case.  /14/

   In suggesting that disparate impact theory is applicable only to
objective (and not to subjective) decisionmaking processes, we do not
imply that the line between subjective and objective decisionmaking
processes -- and thus the line between cases subject to disparate
impact and disparate treatment analysis -- is always obvious.  We
suggest, however, that the distinction turns on whether the
decisionmaking process involves "quantifiable or objectively
verifiable selection criteria which are mechanically applied * * *"
(Zahorik v. Cornell University, 729 F.2d 85, 95 (2d Cir. 1984);  see
also McDonnell Douglas Corp. v. Green, 411 U.S. at 806 & n.21), and we
believe that courts can reasonably make this determination.  Here, of
course, the district court did precisely that and found the process in
issue to be partially subjective.  See App., infra, 35a-36a.  /15/

   Allowing plaintiffs to proceed on a disparate impact theory against
such decisionmaking processes, which are neither quantifiable or
objectively verifiable, would have consequences incompatible with the
policies underlying Title VII itself.  Those consequences result from
the different defenses legally available to employers in disparate
treatment and disparate impact cases.  In a disparate treatment case,
after a plaintiff establishes an inference of discriminatory intent
(by use of the McDonnell Douglas factors or by other circumstantial or
statistical evidence), the employer must offer evidence of a
legitimate, nondiscriminatory reason for the action it has taken.  See
Teamsters v. United States, 431 U.S. at 342;  McDonnell Douglas Corp.
v. Green, 411 U.S. at 802.  Having weighed alternatives and exercised
judgment, the employer is required to articulate the reasons it had
for the actions it took, and in that way is given the chance to refute
the inference that an improper discriminatory motive was at work.

   By contrast, in a disparate impact case, after a plaintiff
establishes a statistically significant disparity in the treatment of
majority and minority workers, the employer must "validate" the device
that cause the disparity -- i.e., show by rigorous empirical proof
that the selection device accurately assesses necessary job criteria.
See Albemarle Paper Co. v. Moody, 422 U.S. at 425-436.  While this is
an extremely expensive and time-consuming process, /16/ written
examinations, height and weight requirements, and other objective
personnel selection devices arguably can be validated in this fashion.
 The same cannot be said of subjective selection processes:  They are
not susceptible to such rigorous validation and, practically speaking,
may not be susceptible to validation at all.  See McDonnell Douglas
Corp. v. Green, 411 U.S. at 802, 806 n.21;  3 A. Larson & L. Larson,
supra, at 15-85 to 15-86;  see also 29 C.F.R. 1607.6B(1).  Thus,
employers are inherently less able to show that a subjective
decisionmaking process is justified by business necessity and, if
plaintiffs are allowed to challenge subjective decisionmaking
processes on a disparate impact theory, will have "little choice * * *
but to engage in * * * subjective quota system(s) of employment
selection." Albemarle Paper Co. v. Moody, 422 U.S. at 449 (Blackmun,
J., concurring in the judgment);  see also Atonio v. Wards Cove
Packing Co., 768 F.2d 1120, 1133 (9th Cir. 1985) ("Were the
facial-neutrality threshold to disappear or be ignored, * * * (r)ather
than being an irrelevant factor as envisioned, race (or sex, etc.)
could then become an overriding factor in employment decisions.").

   "This, of course, (would be) far from the intent of Title VII"
(Albemarle Paper Co. v. Moody, 422 U.S. at 449) (Blackmun, J.,
concurring in the judgment).  Title VII does "not require employers or
labor unions to use racial quotas or to grant preferential treatment
to racial minorities in order to avoid being charged with unlawful
discrimination" (Sheet Metal Workers v. EEOC, No. 84-1656 (July 2,
1986), slip op. 27).  To the contrary, it prohibits them from doing
so.  See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273
(1976);  Firefighters v. Stotts, 467 U.S. 561, 589 n.4 (1984)
(O'Connor, J., concurring).

   To be sure, in some circumstances, employers might avoid this
dilemma by replacing their subjective decisionmaking processes with
completely objective ones.  But, for many employment decisions,
especially decisions involving professional positions or managerial
positions of the type that respondent sought here, objective criteria
do not exist and cannot reasonably be derived.  See Maltz, Title VII
and Upper Level Employment -- A Response to Professor Bartholet, 77
Nw. U. L. Rev. 776, 787-788 (1983).  Moreover, the "statute was not
intended to 'diminish traditional management prerogatives'" (Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981)
(quoting Steelworkers v. Weber, 443 U.S. 193, 207 (1979)), or to
"impose a duty to adopt * * * procedure(s) that maximize() (selection)
of minority employees" (Furnco Construction Corp. v. Waters, 438 U.S.
at 577-578).  The legislative history of Title VII demonstrates that
Congress intended that "'management prerogatives, and union freedoms *
* * be left undisturbed to the greatest extent possible.'"
Steelworkers v. Weber, 443 U.S. at 206 (quoting H.R. Rep. 914, 88th
Cong., 1st Sess. Pt. 2, at 29 (1963)).  Congress simply did not intend
to discourage employers from experimenting and using innovative
personnel selection methods, or to require employers to use only
objective selection devices.  See Contreras v. City of Los Angeles,
656 F.2d 1267, 1278 (9th Cir. 1981), cert. denied, 455 U.S. 1021
(1982);  110 Cong. Rec. 11848 (1964) (remarks of Senator Humphrey)
(Title VII does not "permit the Government to control the internal
affairs of employers * * *").  Congress required only that employers'
subjective decisions not be intentionally discriminatory.  See Furnco
Construction Corp. v. Waters, 438 U.S. at 575, 577-578.

   Significantly, in addition to her disparate impact claim,
respondent raised a disparate treatment claim on which both the
district court and the court of appeals found for the Postal Service.
The district court expressly found that "the procedure used by the
Postal Service to initially select candidates for promotion
consideration was permissible and without overt indicia of
discrimination" (App. infra, 42a).  The court also found that the
Postal Service had a "legitimate, nondiscriminatory reason" for not
promoting respondent (id. at 41a).  The court of appeals affirmed
these findings.  See App., infra, 14a.  We submit that any additional
inquiry into such promotion procedures will undermine the delicate
accommodation of policies that Title VII makes.  /17/ The contrary
resolution of this issue by the court of appeals warrants review by
this Court.

   2. Assuming, arguendo, that the Postal Service's subjective
promotion procedure can be challenged under the disparate impact
theory, we further ask that the Court determine whether respondent's
statistics were sufficient to establish that that procedure has a
prima facie discriminatory impact.  The district court held those
statistics to be patently inadequate.  It held that, where "management
jobs which demand skills and training possessed by relatively few
individuals" are in issue, statistics reflecting the selection rate
rather than data relating only to some imbalance in the workforce are
required to establish such a prima facie case (App., infra, 37a).  The
court of appeals reversed, holding that, "(o)nce (respondent) proved
that the Postal Service promotes from within and introduced
statistical evidence showing that there is a gross disparity between
the percentage of women occupying lower level positions and upper
level positions, she made a sufficient prima facie showing of
discriminatory impact" (id. at 5a).  This holding of the court of
appeals is worthy of this Court's review.

   a. The court of appeals' holding is substantially inconsistent with
the decisions of at least four other circuit courts dealing with the
use of statistical proof in employment discrimination cases.  /18/ In
situations involving promotion or selection for higher level positions
requiring special skills or abilities, the courts of appeals for the
Second, Fourth, Fifth, and District of Columbia Circuits have all held
that a plaintiff cannot establish a prima facie case merely by showing
that the employer promotes from within and that there is an imbalance
between minority representation in the higher and lower levels of the
employer's workforce.  See Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d
395, 400-401 (2d Cir. 1981);  EEOC v. Radiator Specialty Co., 610 F.2d
178, 184-186 (4th Cir. 1979);  EEOC v. Chesapeake & O. Ry., 577 F.2d
229, 233 (4th Cir. 1978);  Rivera v. City of Wichita Falls, 665 F.2d
531, 546 (5th Cir. 1982);  Metrocare v. Washington Metropolitan Area
Transit Auth., 679 F.2d 922, 930 (D.C. Cir. 1982).  Rather, in such
cases, the courts have held that, to support an inference that
minority employees have been selected at a substantially
disproportionate rate, a Title VII plaintiff must offer evidence from
which conclusions can reasonably be drawn about the results produced
by the selection process.  That is, the plaintiff must present
evidence about the actual selections during the relevant time period
and, in appropriate circumstances, evidence about the qualifications
of those in the work force, the expressed interests of those minority
persons in advancing to the positions in question, and/or, the actual
group of candidates considered for promotion.  Because respondent's
statistical data says nothing about actual selections made, and does
not account for any of these other critical variables, it cannot
support any inference of a disproportionate selection rate (as the
district court held).  We therefore ask this Court to intervene and
clarify the thresholds that a Title VII plaintiff's statistics must
satisfy in order to establish a prima facie case of adverse selection.

   b. On the merits, we submit that the court of appeals erred in
finding that respondent's quite limited statistical evidence, relating
to the proportion of women in various parts of the Postal Service's
work force, was sufficient to establish a prima facie case.

   Respondent demonstrated, and the district court found, that women
occupied approximately one-fifth of both the overall Postal Service
work force /19/ and the postmaster positions in the North Suburban MSC
in 1978, the year of the challenged decisions.  See App., infra, 5a
n.1.  Respondent also showed that none of the female postmasters were
rated higher than pay scale level-20 and that 15 of the 23 female
postmasters were at pay scale level-15 or below (ibid.).  Finally,
respondent demonstrated that, while the Postal Service has positions
of unspecified description in the North Suburban MSC ranging as high
as pay scale level-27, only five percent of the women in that work
force were rated in pay scale levels-19 or higher (ibid.).  These
statistics are not probative of adverse selection.

   "Statistics * * * come in infinite variety and, like any other
evidence, * * * their usefulness depends on all of the surrounding
facts and circumstances" (Teamsters v. United States, 431 U.S. at
340).  When properly constructed, statistics can aid in determining
whether employment actions have resulted from discrimination or from
legitimate, nondiscriminatory employment requirements (id. at
339-340).  But, like other circumstantial evidence, statistics must
meet certain thresholds of sufficiency if they are to be probative of
discrimination.  See ibid.; Bazemore v. Friday, No. 85-93 (July 1,
1986), slip op. 12-13 & n.10;  see generally B. Schlei & P. Grossman,
supra, at 1331-1346.  Specifically, as noted in Dothard v. Rawlinson,
433 U.S. 321 (1977), the plaintiff's proof must create an inference
that the "standards in question select applicants * * * in a
significantly discriminatory pattern" (id. at 329) (emphasis added);
see also 29 C.F.R. 1607.4 (EEOC Guidelines emphasizing that proof of
disparate impact must focus on selection rates).

   In New York City Transit Authority v. Beazer, 440 U.S. 568 (1979),
the Court discussed deficiencies in statistical proof that prevent the
drawing of any inference about the rate of selection.  In Beazer, the
plaintiffs challenged a public employer's policy against hiring
persons on methadone maintenance.  They claimed that the policy had a
discriminatory disparate impact on blacks and Hispanics and, in that
regard, introduced statistics showing that 63 to 65% of the persons in
New York receiving methadone maintenance in public programs were black
and Hispanic.  But the Court found the plaintiffs' evidence too
unrefined to be helpful (440 U.S. at 585):

      We do not know * * * how many of these persons ever worked for
      or sought to work for (this employer).  Th(ese) statistic(s)
      revea(l) little if anything about the racial composition of the
      class of (this employer's) employees receiving methadone
      treatment.  More particularly, it tells us nothing about the
      class of otherwise-qualified applicants and employees * * *
      improperly excluded (from) the * * * analysis.

4440 U.S. at 585-586.  Thus, while the Court did not have to decide
whether the plaintiffs' statistics actually established a prima facie
case of disparate impact (because the employer showed that the
challenged policy was job-related) (id. at 587), the Court emphasized
that the plaintiffs' demonstration of the challenged policy's effect
on applicants was "(a)t best * * * weak" (ibid.), and concluded that,
"when the entire record is examined(,) it is clear that the two
statistics on which (the plaintiffs) and the district court relied
(did) not prove a violation of Title VII" (id. at 584).

   Like Griggs, Albemarle, and Dothard before it, Beazer teaches that,
to establish a prima facie case of disparate impact, the plaintiff
must create an inference that the selection procedure "select(s)
applicants for hire or promotion in a racial (or gender) pattern
significantly different from that of the pool of applicants"
(Albemarle Paper Co. v. Moody, 422 U.S. at 425) or, in appropriate
circumstances, in a pattern different from that of the general work
force as a whole.  See New York City Transit Authority v. Beazer, 440
U.S. at 584-587;  see also Albemarle Paper Co. v. Moody, 422 U.S. at
425;  Griggs v. Duke Power Co., 401 U.S. at 429-430;  Dothard v.
Rawlinson, 433 U.S. at 329.  Statistics merely showing a disparity
between levels of a work force will not do so.  They show nothing
about how many people were promoted or who among those promoted were
male or female (or black or white).  See New York City Transit
Authority v. Beazer, 440 U.S. at 585-586;  Rivera v. City of Wichita
Falls, 665 F.2d at 546-547.  Nor do such statistics address in any way
whether members of the minority group were interested in, or
considered for, the jobs in question.  See New York City Transit
Authority v. Beazer, 440 U.S. at 585-586.  And they do not indicate
what skills or training members of the identified labor pools have or
can easily acquire.  See Metrocare v. Washington Metropolitan Area
Transit Auth., 679 F.2d at 930;  cf. Mayor v. Educational Equality
League, 415 U.S. 605, 619-621 (1974).  Accordingly, both this Court
and the courts of appeals have held that, where statistics do not
expressly reflect or reasonably approximate the rates at which
employees are selected, they do not establish an inference that the
procedure has adversely selected minority employees.  See, e.g., New
York City Transit Authority v. Beazer, 440 U.S. at 585-587;  Hazelwood
School Dist. v. United States, 433 U.S. at 308 n.13;  Mayor v.
Educational Equality League, 415 U.S. at 620-621;  Rivera v. City of
Wichita Falls, 665 F.2d at 546-547;  Metrocare v. Washington
Metropolitan Area Transit Auth., 679 F.2d at 930.  /20/

   Here, of course, respondent made no effort to account for any of
the variables that this Court has indicated can be used to establish
an inference of disparate selection rate.  She presented no evidence
about the relative numbers of men and women who have actually been
promoted.  She made no effort to account for the flow of applicants
into and within the Postal Service's work force.  She did not show the
time period over which the disparity in minority representation had
developed, or how women are distributed in the various pay scale
levels.  And, though the Postal Service "demonstrated that the persons
selected to fill the vacancies were required to have high levels of
management skills" (App., infra, 41a;  see also id. at 35a-37a), and
that numerous applicants were deemed lacking even the minimum
qualifications necessary for promotion (id. at 20a), respondent
presented no evidence about the qualifications of women in the lower
levels of the work force.  She showed only that the Postal Service has
a policy of promoting from within and that an arguably gross disparity
exists between the percentage of females occupying the low-level and
high-level positions in the Postal Service's work force.  Such proof
sheds no light on the operation or exclusionary effects of the
challenged promotion procedure and, accordingly, is insufficient to
establish any inference of an adverse selection rate.

   Moreover, the Postal Service, by cross-examination and rebuttal,
argued that respondent's statistics had no probative value whatsoever.
 It showed that, in each of the three promotions that respondent
challenged, only one of approximately 30 applicants was female (and,
thus, that females may not regularly seek promotion);  that the Postal
Service has in the past hired postmasters from outside of its own work
force;  that women have only recently begun to enter the Postal
Service's work force in large numbers (and that this recent entrance
may account for the high percentage of females in the lower levels);
that pay scale level-22 jobs require unique management skills;  and
that the Postal Service denied respondent a promotion because other,
more highly-skilled, employees were available.  On the basis of this
full evidentiary record, the district court held that respondent's
statistics did not establish that the Postal Service had selected
employees at a discriminatory rate.  This finding is supported by the
evidence and should have disposed of the case.

   In remanding the case with instructions that the Postal Service can
rebut respondent's statistics only with "evidence of a low percentage
of female applicants for upper level jobs or evidence of the lack of
qualifications of women in lower level positions" (App., infra,
7a-8a.), the court of appeals has apparently dismissed out of hand the
Postal Service's cross-examination and rebuttal testimony and held
instead that gross statistical imbalances can be refuted only with
applicant flow or qualifications data.  This approach requires the
Postal Service to bear the burden and expense of actually proving that
its procedure does not have a disparate impact, rather than simply
producing evidence to dispel any inference created by respondent's
meager proof.  In doing so, the court of appeals has reversed
traditional burdens of proof in a way that will unnecessarily delay
the resolution of legitimate Title VII suits, complicate and impede
the prompt evaluation and disposition of frivolous Title VII claims,
and further none of the policies that Title VII seeks to promote.
/21/ This Court's review is warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

   WM. BRADFORD REYNOLDS

      Assistant Attorneys General

   DONALD B. AYER

      Deputy Solicitor General

   JAMES M. SPEARS

   MICHAEL CARVIN

      Deputy Assistant Attorneys General

   GLEN D. NAGER

      Assistant to the Solicotor General

   DAVID K. FLYNN

   E. ROY HAWKENS

      Attorneys

   SEPTEMBER 1986

   /1/ Two members of the Screening Board had "first-hand knowledge of
the conditions of the post office run by (respondent).  (Mr.) Wright,
as a postal inspector, had investigated an instance of poor security
in connection with the issuance of money orders and he described
(respondent's) management as sloppy.  (Mr.) Wright * * * told the
Screening Board that Christmas mail deliveries were two or three days
late.  (Mr.) Besteda also told the Screening Board that the Kenilworth
post office was not well managed" (App., infra, 21a).

   /2/ The Screening Board ranked respondent thirteenth out of the 16
applicants that it deemed minimally qualified for the Glenview,
Illinois postmaster position (App., infra, 21a).  It ranked respondent
sixteenth out of the 17 applicants that it deemed minimally qualified
for the Palatine, Illinois postmaster position (id. at 21a-22a).  And
the Screening Board ranked respondent fifteenth out of the 17
applicants that it deemed minimally qualified for the Franklin Park,
Illinois postmaster position (id. at 22a).

   /3/ Specifically, respondent introduced evidence showing that
(App., infra, 36a-37a):

         In November, 1974, women held 20.8% of the positions in the
      Postal Service workforce.  The percentage had moved to 23.5% by
      November 1980.  Nationally, women held 11.5% of the positions at
      PES-15 and above in January, 1980.

         In 1978, the year of (respondent's) failed promotion, women
      occupied 23 of the 108 postmaster positions in the North
      Suburban MSC, or 21.2% of the total postmaster positions.
      However, none of the women postmasters were rated higher than
      PES-20 and 15 of them were at level PES-15 or lower.
      Additionally in 1977-1978 a total of 2,008 women were employed
      in the North Suburban MSC, 29.4% of the entire Postal Service
      workforce in the area.  Despite that overall percentage, only
      four women or 5% (of those filing positions of PES-19 of higher)
      were rated in positions of PES-19 or higher.

   /4/ The district court also rejected respondent's claim that the
Postal Service had retaliated against her in 1982 -- by reducing her
in grade -- for initially raising her Title VII claim in 1978 (App.,
infra, 43a-47a).  The court held that the Postal Service had demoted
her for "misfeasance and malfeasance and not in retaliation for * * *
her civil rights claim" (id. at 46a-47a).  The court of appeals
affirmed (App., infra, 8a-14a).  The retaliation claim has no bearing
on the issues raised by this petition and, accordingly, we discuss it
no further.

   /5/ The court of appeals did not explicitly address in its opinion
whether respondent's challenge to the Postal Service's subjective,
multi-component promotion procedure presents a legally cognizable
disparate impact claim.  But the Postal Service fully briefed the
issue as an alternative ground for affirming the district court's
judgment.  See Brief for the Defendant-Appellee at 14-17 (filed May 3,
1985);  see also Appellee's Petition for Rehearing and Suggestion for
Rehearing En Banc at 8-13 (filed Mar. 13, 1986).  Thus, the Postal
Service clearly raised the issue to the court below and, in deciding
that respondent has in fact established a prima facie case of
disparate impact, the court necessarily decided it.

   /6/ By "subjective decisionmaking process," we mean a
decisionmaking process that is not exclusively comprised of
"quantifiable or objectively verifiable selection criteria which * * *
(can be) mechanically applied * * *" (Zahorik v. Cornell University,
729 F.2d 85, 95 (2d Cir. 1984)).  We discuss this definitional issue
more fully (page 15, & n.15 infra).

   /7/ Compare Pouncy v. Prudential Insurance Co. of America, 668 F.2d
795, 800-801 (5th Cir. 1982) (disparate impact analysis does not apply
to subjective, mixed-component employment decisions), and Pegues v.
Mississippi State Employment Serv., 699 F.2d 760, 765 (5th Cir.),
cert. denied, 464 U.S. 991 (1983) (same), with Page v. United States
Industries, Inc., 726 F.2d 1038, 1045-1046 (5th Cir. 1984) (assessing
lawfulness of a "subjective promotional system" under both disparate
treatment and disparate impact analysis).

   /8/ Compare Coates v. Johnson & Johnson Co., 756 F.2d 524, 530-531
n.4 (7th Cir. 1985) (no disparate impact claim where no "facially
neutral" rules identified), with Stewart v. General Motors Corp., 542
F.2d 445, 450-451 (7th Cir. 1976), cert. denied, 433 U.S. 919 (1977)
("highly subjective and loosely structured" promotion practices
subject to disparate impact theory), and Regner v. City of Chicago,
789 F.2d 534, 539 (7th Cir. 1986) (same).

   /9/ Compare Taylor v. Teletype Corp., 648 F.2d 1129, 1132-1133 n.6
(8th Cir.), cert. denied, 454 U.S. 969 (1981) (disparate impact theory
not available to challenge subjective decisionmaking process), Harris
v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir. 1981) (same), and
Talley v. United States Postal Service, 720 F.2d 505, 507 (8th Cir.
1983), cert. denied, 466 U.S. 952 (1984) (same), with Gilbert v. City
of Little Rock, 722 F.2d 1390, 1397-1398 (8th Cir. 1983), cert. denied
466 U.S. 972 (1984) (allowing plaintiff to use disparate impact theory
without identifying an objective, neutral employment practice), and
EEOC, v. Rath Packing Co., 787 F.2d 318, 328 (8th Cir. 1986), petition
for cert. pending, No. 86-67 (same).

   /10/ Compare Atonio v. Wards Cove Packing Co., 768 F.2d 1120,
1131-1133 (9th Cir. 1985) (petition for rehearing en banc granted)
(rejecting disparate impact challenge to subjective hiring
procedures), with Hung Ping Wang v. Hoffman, 694 F.2d 1146, 1148 (9th
Cir. 1982) (applying disparate impact challenge to the absence of an
objective promotion standard).

   /11/ Compare Mortensen v. Callaway, 672 F.2d 822, 824 (10th Cir.
1982) (plaintiff could not assert disparate impact claim since "she
ha(d) not pointed to any employment practice that, neutral on its
face, has caused women not to be promoted"), with Bauer v. Bailar, 647
F.2d 1037, 1043 (10th Cir. 1981) (applying disparate impact to
subjective hiring and promotion decisions).

   /12/ To our knowledge, the Third Circuit has not yet addressed the
issue.

   /13/ Justice Marshall dissented "from the Court's apparent decision
* * * to foreclose on remand further litigation on the Griggs question
of whether (the employer's) hiring practices had a disparate impact"
(438 U.S. at 583) (Marshall, J., concurring in part and dissenting in
part).

   /14/ Of course, a plaintiff can still use statistical evidence to
prove disciminatory motivation.  See Hazelwood School Dist. v. United
States, 433 U.S. 299, 306-313 (1977);  Teamsters v. United States, 431
U.S. at 335-336 n.15, 339-340 n.20.

   /15/ Because we suggest that only quantifiable or objectively
verifiable decisionmaking processes are subject to disparate impact
theory, we agree with Professor Larson that selection processes which
include both objective and subjective components must be considered
non-quantifiable or verifiable, and thus subjective.  See 3 A. Larson
& L. Larson, supra, at 15-91 to 15-98.  In this case, the district
court held that the Postal Service's promotion procedure is precisely
such a mixed component system.  See App., infra, 35a-36a.
Accordingly, we believe that the courts below erred in allowing
respondent to proceed on a disparate impact theory.

   Of course, even where a mixed-component selection process is
involved, a plaintiff can challenge an objective component of that
process for its own disparate impact.  See Connecticut v. Teal, 457
U.S. 440 (1982).  However, since respondent has not made any such
allegation in this case, the decisions below cannot be defended on
that basis.

   Finally, we note that this petition does not address the
permissibility of a plaintiff pursuing a disparate impact claim
directed at the bottom line results of a multi-step, but completely
objective, decisionmaking process.  Compare Pouncy v. Prudential
Insurance Co. of America, 668 F.2d at 800-801 (suggesting that
disparate impact theory never applies to any multi-component systems,
even if completely objective), with Griffin v. Carlin, 755 F.2d at
1525 (suggesting that disparate impact theory always applies to all
multi-component systems).  That issue is not raised by the facts of
this case, which involve the Postal Service's mixed-component
promotion procedure.

   /16/ Lerner, Employment Discrimination:  Adverse Impact, Validity,
and Equality, 1979 Sup. Ct. Rev. 17, 18 n.6;  Gwartney, Asher, Haworth
& Haworth, Statistics, the Law, and Title VII:  An Economist's View,
54 Notre Dame Law.  633, 643 (1979).

   /17/ Though the Equal Employment Opportunity Commission's Uniform
Guidelines on Employee Selection Procedures (1978), 29 C.F.R. Pt.
1607, contain directives which point in different directions, those
Guidelines are not inconsistent with the position taken here.  The
Guidelines provide that the "use of any selection procedure which has
an adverse impact on * * * employment * * * opportunities of members
of any race, sex, or ethnic group will be considered discriminatory *
* * unless * * * the procedure has been validated * * * or the
provisions of section 6 (of the Guideline) * * * are satisfied" (29
C.F.R. 1607.3A) (emphasis added).  A "selection procedure" is defined
to include "(a)ny measure, combination of measures, or procedure used
as a basis for any employment decision(s) * * * includ(ing) the full
range of assessment techniques from traditional paper and pencil tests
* * * through informal or casual interviews and unscored application
forms" (29 C.F.R. 1607.16Q).  Section 6 of the Guidelines goes on to
state, however, that "(t)here are circumstances in which a user cannot
or need not utilize the validation techniques contemplated by these
guidelines" (29 C.F.R. 1607.6B (emphasis added)), that such
"circumstances" include the use of "informal or unscored selection
procedure(s)" (Section 1607.6B(1)), and that where such informal or
unscored selection procedures are involved, the user need only
"justify continued use of the procedure(s) in accord with Federal law"
(ibid.).  See generally 43 Fed. Reg. 38290, 38291 & n.17 (1978);  44
Fed. Reg. 11196, 12001-12002 (1979).

   While the Guidelines do not expressly so state, we believe that an
employer justifies "continued use of the procedure in accord with
Federal law" by setting forth legitimate, nondiscriminatory reasons
for maintaining the selection procedure and for applying it in
particular cases, as is required in disparate treatment cases.  See
Teamsters v. United States, 431 U.S. at 342;  McDonnell Douglas Corp.
v. Green, 411 U.S. at 802.  Otherwise, the Guidelines would leave the
employer with no possible defense to a showing that its subjective
decisionmaking process has an adverse impact and, as the inclusion of
Section 6 indicates, the Guidelines clearly do not contemplate placing
the employer in such a dilemma.

   /18/ The cases we cite include disparate treatment as well as
disparate impact cases.  In citing disparate treatment cases, we are
not unmindful that the plaintiff in a disparate treatment case carries
the added burden of proving discriminatory intent.  See Teamsters v.
United States, 431 U.S. at 335-336 n.15.  However, where statistics
are involved, both disparate treatment and disparate impact challenges
to promotion procedures must, as a threshold requirement, present data
sufficient to give rise to an inference of a substantially
disproportionate rate of selection.  See B. Schlei & P. Grossman,
supra, at 1286-1289, 1331-1346.  Accordingly, disparate treatment
cases pointing out the insufficiencies of plaintiffs' prima facie
statistical proofs are highly probative of the issue at hand.

   /19/ The statistics showed that between 1974 and 1980 the
representation of women in the Postal Service work force changed from
20.8% to 23.5%.

   /20/ In Dothard, this Court accepted plaintiffs' "generalized
national statistics" as a proxy for the potential applicant pool
available to the employer.  See Dothard v. Rawlinson, 433 U.S. at 330.
 But, in using these general availability figures, the Court still
recognized that the ultimate question was whether the selection
process in issue had a disproportionate exclusionary effect on women
as compared to men.  See id. at 329-330 & n.12.  The Court did not
simply inquire whether there were fewer women in the work force than
in the general population.

   Moreover, the Dothard Court was only willing to use such
generalized statistics because "there was no reason to suppose that
physical height and weight characteristics of Alabama men and women
differ markedly from those of the national population" (433 U.S. at
330), and because "(t)he application process itself might not (have)
adequately reflect(ed) the actual potential applicant pool, since
otherwise qualified people might (have) be(en) discouraged from
applying because of a self-recognized inability to meet the very
standards challenged as being discriminatory" (ibid.).  The Dothard
Court's use of such generalized data, therefore, does not excuse
respondent, in a case involving promotions to management or higher
level positions, from her ordinary burden of accounting for
qualifications of potential applicants, actual applicant flow data, or
at least actual selection rates.  See New York City Transit Authority
v. Beazer, 440 U.S. at 584-587;  Dothard v. Rawlinson, 433 U.S. at
348-349 (opinion of White, J.) (arguing that plaintiff did not
establish that all members of labor pool used were interested in job
in issue);  Rivera v. City of Wichita Falls, 655 F.2d at 546-547;
Metrocare v. Washington Metropolitan Area Transit Auth., 679 F.2d at
930.

   /21/ That the district court found respondent to be less qualified
than those actually promoted underscores the incorrectness of the
court of appeals' remand.  It is axiomatic that Title VII limits
"make-whole" relief to those employees who would have received the
contested benefit "but for" their sex (or race).  See Los Angeles
Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978);  see also
Arizona Governing Committee v. Norris, 463 U.S. 1073, 1080 (1983).
Thus, the district court has no authority to order any relief for
respondent, since she was refused "* * * advancement * * * for (a)
reason other than discrimination on account of * * * sex * * *." 42
U.S.C. 2000e-5(g).  The court of appeals' remand serves no readily
apparent purpose.

                               APPENDIX