433 U.S.

299
97 S.Ct. 2736
53 L.Ed.2d 768

HAZELWOOD SCHOOL DISTRICT et al., Petitioners,

v.
UNITED STATES.
No. 76-255.
Argued April 27, 1977.
Decided June 27, 1977.

Syllabus
The United States brought this action against petitioners, the Hazelwood,
Mo., School District, located in St. Louis County, and various officials,
alleging that they were engaged in a 'pattern or practice' of teacher
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, which became applicable to petitioners as public
employers on March 24, 1972. The District Court following trial ruled
that the Government had failed to establish a pattern or practice of
discrimination. The Court of Appeals reversed, in part on the ground that
the trial court's analysis of statistical data rested on an irrelevant
comparison of Negro teachers to Negro pupils in Hazelwood, instead of a
comparison of Negro teachers in Hazelwood to Negro teachers in the
relevant labor market area, which it found to consist of St. Louis County
and the city of St. Louis, where 15.4% of the teachers are Negro. In the
1972-1973 and 1973-1974 school years only 1.4% and 1.8%, respectively,
of Hazelwood's teachers were Negroes, and this statistical disparity,
particularly when viewed against the background of Hazelwood's teacher
hiring procedures, was held to constitute a prima facie case of a pattern or
practice of racial discrimination. Petitioners contend that the statistical
data on which the Court of Appeals relied cannot sustain a finding of a
violation of Title VII. Held: The Court of Appeals erred in disregarding
the statistical data in the record dealing with Hazelwood's hiring after it
became subject to Title VII and the court should have remanded the case
to the District Court for further findings as to the relevant labor market
area and for an ultimate determination whether Hazelwood has engaged in
a pattern or practice of employment discrimination since March 24, 1972.

Though the Court of Appeals was correct in the view that a proper
comparison was between the racial composition of Hazelwood's teaching
staff and the racial composition of the qualified public school teacher
population in the relevant labor market, it erred in disregarding the
possibility that the prima facie statistical proof in the record might at the
trial court level be rebutted by statistics dealing with Hazelwood's postAct hiring practices such as with respect to the number of Negroes hired
compared to the total number of Negro applicants. For, once a prima facie
case has been established by statistical work-force disparities, the
employer must be given an opportunity to show that 'the claimed
discriminatory pattern is a product of pre-Act hiring rather than unlawful
post-Act discrimination,' International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 360, 97 S.Ct. 1843, 1857, 52 L.Ed.2d 396
and n. 17. The record showed, but the Court of Appeals in its conclusions
ignored, that for the two-year period 1972-1974 3.7% of the new teachers
hired in Hazelwood were Negroes. The court accepted the Government's
argument that the relevant labor market was St. Louis County and the city
of St. Louis without considering petitioners' contention that St. Louis
County alone (where the figure was 5.7%) was the proper area because
the city of St. Louis attempts to maintain a 50% Negro teaching staff. The
difference between the figures may well be significant since the disparity
between 3.7% and 5.7% may be sufficiently small to weaken the
Government's other proof, while the disparity between 3.7% and 15.4%
may be sufficiently large to reinforce it. In determining what figures
provide the most accurate basis for comparison to the hiring figures at
Hazelwood numerous other factors, moreover, must also be evaluated by
the trial court. Pp. 306-313.
534 F.2d 805, vacated and remanded.
William H. Allen, Washington, D. C., for petitioners.
Lawrence G. Wallace, Washington, D. C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.

The petitioner Hazelwood School District covers 78 square miles in the

northern part of St. Louis County, Mo. In 1973 the Attorney General brought
this lawsuit against Hazelwood and various of its officials, alleging that they
were engaged in a 'pattern or practice' of employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended,
42 U.S.C. 2000e et seq. (1970 ed. and Supp. V).1 The complaint asked for an

injunction requiring Hazelwood to cease its discriminatory practices, to take

affirmative steps to obtain qualified Negro faculty members, and to offer
employment and give backpay to victims of past illegal discrimination.
2

Hazelwood was formed from 13 rural school districts between 1949 and 1951
by a process of annexation. By the 1967-1968 school year, 17,550 students
were enrolled in the district, of whom only 59 were Negro; the number of
Negro pupils increased to 576 of 25,166 in 1972-1973, a total of just over 2%.

From the beginning, Hazelwood followed relatively unstructured procedures in

hiring its teachers. Every person requesting an application for a teaching
position was sent one, and completed applications were submitted to a central
personnel office, where they were kept on file.2 During the early 1960's the
personnel office notified all applicants whenever a teaching position became
available, but as the number of applications on file increased in the late 1960's
and early 1970's, this practice was no longer considered feasible. The personnel
office thus began the practice of selecting anywhere from 3 to 10 applicants for
interviews at the school where the vacancy existed. The personnel office did
not substantively screen the applicants in determining which of them to send for
interviews, other than to ascertain that each applicant, if selected, would be
eligible for state certification by the time he began the job. Generally, those
who had most recently submitted applications were most likely to be chosen for
interviews.3

Interviews were conducted by a department chairman, program coordinator, or

the principal at the school where the teaching vacancy existed. Although those
conducting the interviews did fill out forms rating the applicants in a number of
respects, it is undisputed that each school principal possessed virtually
unlimited discretion in hiring teachers for his school. The only general guidance
given to the principals was to hire the 'most competent' person available, and
such intangibles as 'personality, disposition, appearance, poise, voice,
articulation, and ability to deal with people' counted heavily. The principal's
choice was routinely honored by Hazelwood's Superintendent and the Board of
Education.

In the early 1960's Hazelwood found it necessary to recruit new teachers, and
for that purpose members of its staff visited a number of colleges and
universities in Missouri and bordering States. All the institutions visited were
predominantly white, and Hazelwood did not seriously recruit at either of the
two predominantly Negro four-year colleges in Missouri.4 As a buyer's market
began to develop for public school teachers, Hazelwood curtailed its recruiting
efforts. For the 1971-1972 school year, 3,127 persons applied for only 234

teaching vacancies; for the 1972-1973 school year, there were 2,373
applications for 282 vacancies. A number of the applicants who were not hired
were Negroes.5
6

Hazelwood hired its first Negro teacher in 1969. The number of Negro faculty
members gradually increased in successive years: 6 of 957 in the 1970 school
year; 16 of 1,107 by the end of the 1972 school year; 22 of 1,231 in the 1973
school year. By comparison, according to 1970 census figures, of more than
19,000 teachers employed in that year in the St. Louis area, 15.4% were Negro.
That percentage figure included the St. Louis City School District, which in
recent years has followed a policy of attempting to maintain a 50% Negro
teaching staff. Apart from that school district, 5.7% of the teachers in the
county were Negro in 1970.

Drawing upon these historic facts, the Government mounted its 'pattern or
practice' attack in the District Court upon four different fronts. It adduced
evidence of (1) a history of alleged racially discriminatory practices, (2)
statistical disparities in hiring, (3) the standardless and largely subjective hiring
procedures, and (4) specific instances of alleged discrimination against 55
unsuccessful Negro applicants for teaching jobs. Hazelwood offered virtually
no additional evidence in response, relying instead on evidence introduced by
the Government, perceived deficiencies in the Government's case, and its own
officially promulgated policy 'to hire all teachers on the basis of training,
preparation and recommendations, regardless of race, color or creed.'6

The District Court ruled that the Government had failed to establish a pattern or
practice of discrimination. The court was unpersuaded by the alleged history of
discrimination, noting that no dual school system had ever existed in
Hazelwood. The statistics showing that relatively small numbers of Negroes
were employed as teachers were found nonprobative, on the ground that the
percentage of Negro pupils in Hazelwood was similarly small. The court found
nothing illegal or suspect in the teacher-hiring procedures that Hazelwood had
followed. Finally, the court reviewed the evidence in the 55 cases of alleged
individual discrimination, and after stating that the burden of proving
intentional discrimination was on the Government, it found that this burden had
not been sustained in a single instance. Hence, the court entered judgment for
the defendants. 392 F.Supp. 1276 (ED Mo.).

The Court of Appeals for the Eighth Circuit reversed. 534 F.2d 805. After
suggesting that the District Court had assigned inadequate weight to evidence
of discriminatory conduct on the part of Hazelwood before the effective date of
Title VII,7 the Court of Appeals rejected the trial court's analysis of the

statistical data as resting on an irrelevant comparison of Negro teachers to

Negro pupils in Hazelwood. The proper comparison, in the appellate court's
view, was one between Negro teachers in Hazelwood and Negro teachers in the
relevant labor market area. Selecting St. Louis County and St. Louis City as the
relevant area,8 the Court of Appeals compared the 1970 census figures,
showing that 15.4% of teachers in that area were Negro, to the racial
composition of Hazelwood's teaching staff. In the 1972-1973 and 1973-1974
school years, only 1.4% and 1.8%, respectively, of Hazelwood's teachers were
Negroes. This statistical disparity, particularly when viewed against the
background of the teacher-hiring procedures that Hazelwood had followed, was
held to constitute a prima facie case of a pattern or practice of racial
discrimination.
10

In addition, the Court of Appeals reasoned that the trial court had erred in
failing to measure the 55 instances in which Negro applicants were denied jobs
against the four-part standard for establishing a prima facie case of individual
discrimination set out in this Court's opinion in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668.9 Applying that
standard, the appellate court found 16 cases of individual discrimination,10
which 'buttressed' the statistical proof. Because Hazelwood had not rebutted the
Government's prima facie case of a pattern or practice of racial discrimination,
the Court of Appeals directed judgment for the Government and prescribed the
remedial order to be entered.11

11

We granted certiorari, 429 U.S. 1037, 97 S.Ct. 730, 50 L.Ed.2d 747 to consider
a substantial question affecting the enforcement of a pervasive federal law.

12

The petitioners primarily attack the judgment of the Court of Appeals for its
reliance on 'undifferentiated work force statistics to find an unrebutted prima
facie case of employment discrimination.'12 The question they raise, in short, is
whether a basic component in the Court of Appeals' finding of a pattern or
practice of discrimination the comparatively small percentage of Negro
employees in Hazelwood's teaching staff was lacking in probative force.

13

This Court's recent consideration in International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 of the role of
statistics in pattern-or-practice suits under Title VII provides substantial
guidance in evaluating the arguments advanced by the petitioners. In that case
we stated that it is the Government's burden to 'establish by a preponderance of
the evidence that racial discrimination was the (employer's) standard operating
procedure the regular rather than the unusual practice.' Id., at 336, 97 S.Ct., at
1855. We also noted that statistics can be an important source of proof in

employment discrimination cases, since

14

'absent explanation, it is ordinarily to be expected that nondiscriminatory hiring

practices will in time result in a work force more or less representative of the
racial and ethnic composition of the population in the community from which
employees are hired. Evidence of long-lasting and gross disparity between the
composition of a work force and that of the general population thus may be
significant even though 703(j) makes clear that Title VII imposes no
requirement that a work force mirror the general population.' Id., at 340 n. 20,
97 S.Ct., at 1856 n.20.

15

See also Village of Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450; Washington v.
Davis, 426 U.S. 229, 241-242, 96 S.Ct. 2040, 2048-2049, 48 L.Ed.2d 597.
Where gross statistical disparities can be shown, they alone may in a proper
case constitute prima facie proof of a pattern or practice of discrimination.
Teamsters, supra, 431 U.S. at 339, 97 S.Ct., at 1856.

16

There can be no doubt, in light of the Teamsters case, that the District Court's
comparison of Hazelwood's teacher work force to its student population
fundamentally misconceived the role of statistics in employment discrimination
cases. The Court of Appeals was correct in the view that a proper comparison
was between the racial composition of Hazelwood's teaching staff and the racial
composition of the qualified public school teacher population in the relevant
labor market.13 See Teamsters, supra, at 337-338, and n. 17, 97 S.Ct., at 1855,
and n. 17. The percentage of Negroes on Hazelwood's teaching staff in 19721973 was 1.4% and in 1973-1974 it was 1.8% By contrast, the percentage of
qualified Negro teachers in the area was, according to the 1970 census, at least
5.7%.14 Although these differences were on their face substantial, the Court of
Appeals erred in substituting its judgment for that of the District Court and
holding that the Government had conclusively proved its 'pattern or practice'
lawsuit.

17

The Court of Appeals totally disregarded the possibility that this prima facie
statistical proof in the record might at the trial court level be rebutted by
statistics dealing with Hazelwood's hiring after it became subject to Title VII.
Racial discrimination by public employers was not made illegal under Title VII
until March 24, 1972. A public employer who from that date forward made all
its employment decisions in a wholly nondiscriminatory way would not violate
Title VII even if it had formerly maintained an all-white work force by
purposefully excluding Negroes.15 For this reason, the Court cautioned in the
Teamsters opinion that once a prima facie case has been established by

statistical work-force disparities, the employer must be given an opportunity to

show that 'the claimed discriminatory pattern is a product of pre-Act hiring
rather than unlawful post-Act discrimination.' 431 U.S., at 360, 97 S.Ct., at
1867.
18

The record in this case showed that for the 1972-1973 school , Hazelwood
hired 282 new teachers, 10 whom (3.5%) were Negroes; for the following
school year it hired 123 new teachers, 5 of whom (4.1%) were Negroes. Over
the two-year period, Negroes constituted a total of 15 of the 405 new teachers
hired (3.7%). Although the Court of Appeals briefly mentioned these data in
reciting the facts, it wholly ignored them in discussing whether the Government
had shown a pattern or practice of discrimination. And it gave no consideration
at all to the possibility that post-Act data as to the number of Negroes hired
compared to the total number of Negro applicants might tell a totally different
story.16

19

What the hiring figures prove obviously depends upon the figures to which they
are compared. The Court of Appeals accepted the Government's argument that
the relevant comparison was to the labor market area of St. Louis County and
the city of St. Louis, in which, according to the 1970 census, 15.4% of all
teachers were Negro. The propriety of that comparison was vigorously disputed
by the petitioners, who urged that because the city of St. Louis has made special
attempts to maintain a 50% Negro teaching staff, inclusion of that school
district in the relevant market area distorts the comparison. Were that argument
accepted, the percentage of Negro teachers in the relevant labor market area (St.
Louis County alone) as shown in the 1970 census would be 5.7% rather than
15.4%.

20

The difference between these figures may well be important; the disparity
between 3.7% (the percentage of Negro teachers hired by Hazelwood in 19721973 and 1973-1974) and 5.7% may be sufficiently small to weaken the
Government's other proof, while the disparity between 3.7% and 15.4% may be
sufficiently large to reinforce it.17 In determining which of the two figures or,
very possibly, what intermediate figure provides the most accurate basis for
comparison to the hiring figures at Hazelwood, it will be necessary to evaluate
such considerations as (i) whether the racially based hiring policies of the St.
Louis City School District were in effect as far back as 1970, the year in which
the census figures were taken;18 (ii) to what extent those policies have changed
the racial composition of that district's teaching staff from what it would
otherwise have been; (iii) to what extent St. Louis' recruitment policies have
diverted to the city, teachers who might otherwise have applied to Hazelwood;19
(iv) to what extent Negro teachers employed by the city would prefer

employment in other districts such as Hazelwood; and (v) what the experience
in other school districts in St. Louis County indicates about the validity of
excluding the City School District from the relevant labor market.
21

It is thus clear that a determination of the appropriate comparative figures in

this case will depend upon further evaluation by the trial court. As this Court
admonished in Teamsters: '(S)tatistics . . . come in infinite variety . . .. (T)heir
usefulness depends on all of the surrounding facts and circumstances.' 431 U.S.,
at 340, 97 S.Ct., at 1856-1857. Only the trial court is in a position to make the
appropriate determination after further findings. And only after such a
determination is made can a foundation be established for deciding whether or
not Hazelwood engaged in a pattern or practice of racial discrimination in its
employment practices in violation of the law.20

22

We hold, therefore, that the Court of Appeals erred in disregarding the post-Act
hiring statistics in the record, and that it should have remanded the case to the
District Court for further findings as to the relevant labor market area and for an
ultimate determination of whether Hazelwood engaged in a pattern or practice
of employment discrimination after March 24, 1972.21 Accordingly, the
judgment is vacated, and the case is remanded to the District Court for further
proceedings consistent with this opinion.

23

It is so ordered.

24

Mr. Justice BRENNAN, concurring.

25

I join the Court's opinion. Similarly to our decision in Dayton Board of

Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851, today's
opinion revolves around the relative factfinding roles of district courts and
courts of appeals. It should be plain, however, that the liberal substantive
standards for establishing a Title VII violation, including the usefulness of
statistical proof, are reconfirmed.

26

In the present case, the District Court had adopted a wholly inappropriate legal
standard of discrimination, and therefore did not evaluate the factual record
before it in a meaningful way. This remand in effect orders it to do so. It is my
understanding, as apparently it is Mr. Justice STEVENS', post, at 318 n. 5, that
the statistical inquiry mentioned by the Court, ante, at 311 n. 17, and
accompanying text, can be of no help to the Hazelwood School Board in
rebutting the Government's evidence of discrimination. Indeed, even if the
relative comparison market is found to be 5.7% rather than 15.4% black, the

applicable statistical analysis at most will not serve to bolster the Government's
case. This obviously is of no aid to Hazelwood in meeting its burden of proof.
Nonetheless I think that the remand directed by the Court is appropriate and
will allow the parties to address these figures and calculations with greater care
and precision. I also agree that given the misapplication of governing legal
principles by the District Court. Hazelwood reasonably should be given the
opportunity to come forward with more focused and specific applicant-flow
data in the hope of answering the Government's prima facie case. If, as
presently seems likely, reliable applicant data are found to be lacking, the
conclusion reached by my Brother STEVENS will inevitably be forthcoming.
27

Mr. Justice STEVENS, dissenting.

28

The basic framework in a pattern-or-practice suit brought by the Government

under Title VII of the Civil Rights Act of 1964 is the same as that in any other
lawsuit. The plaintiff has the burden of proving a prima facie case; if he does
so, the burden of rebutting that case shifts to the defendant.1 In this case, since
neither party complains that any relevant evidence was excluded, our task is to
decide (1) whether the Government's evidence established a prima facie case;
and (2), if so, whether the remaining evidence is sufficient to carry
Hazelwood's burden of rebutting that prima facie case.

29

* The first question is clearly answered by the Government's statistical

evidence, its historical evidence, and its evidence relating to specific acts of
discrimination.

30

One-third of the teachers hired by Hazelwood resided in the city of St. Louis at
the time of their initial employment. As Mr. Justice Clark explained in his
opinion for the Court of Appeals, it was therefore appropriate to treat the city,
as well as the county, as part of the relevant labor market.2 In that market, 15%
of the teachers were black. In the Hazelwood District at the time of trial less
than 2% of the teachers were black. An even more telling statistic is that after
Title VII became applicable to it, only 3.7% of the new teachers hired by
Hazelwood were black. Proof of these gross disparities was in itself sufficient
to make out a prima facie case of discrimination. See International Brotherhood
of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52
L.Ed.2d 396 (1977); Castaneda v. Partida, 430 U.S. 482, 494-498, 97 S.Ct.
1272, 1280-1282, 51 L.Ed.2d 498.

31

As a matter of history, Hazelwood employed no black teachers until 1969. Both

before and after the 1972 amendment making the statute applicable to public

school districts, petitioner used a standardless and largely subjective hiring

procedure. Since 'relevant aspects of the decisionmaking process had
undergone little change,' it is proper to infer that the pre-Act policy of
preferring white teachers continued to influence Hazelwood's hiring practices.3
32

The inference of discrimination was corroborated by post-Act evidence that

Hazelwood had refused to hire 16 qualified black applicants for racial reasons.
Taking the Government's evidence as a whole, there can be no doubt about the
sufficiency of its prima facie case.

II
33

Hazelwood 'offered virtually no additional evidence in response,' ante, at 303.

It challenges the Government's statistical analysis by claiming that the city of
St. Louis should be excluded from the relevant market and pointing out that
only 5.7% of the teachers in the county (excluding the city) were black. It
further argues that the city's policy of trying to maintain a 50% black teaching
staff diverted teachers from the county to the city. There are two separate
reasons why these arguments are insufficient: they are not supported by the
evidence; even if true, they do not overcome the Government's case.

34

The petitioners offered no evidence concerning wage differentials, commuting

problems, or the relative advantages of teaching in an inner-city school as
opposed to a suburban school. Without any such evidence in the record, it is
difficult to understand why the simple fact that the city was the source of a
third of Hazelwood's faculty should not be sufficient to demonstrate that it is a
part of the relevant market. The city's policy of attempting to maintain a 50/50
ratio clearly does not undermine that conclusion, particularly when the record
reveals no shortage of qualified black applicants in either Hazelwood or other
suburban school districts.4 Surely not all of the 2,000 black teachers employed
by the city were unavailable for employment in Hazelwood at the time of their
initial hire.

35

But even if it were proper to exclude the city of St. Louis from the market, the
statistical evidence would still tend to prove discrimination. With the city
excluded, 5.7% of the teachers in the remaining market were black. On the
basis of a random selection, one would therefore expect 5.7% of the 405
teachers hired by Hazelwood in the 1972-1973 and 1973-1974 school years to
have been black. But instead of 23 black teachers, Hazelwood hired only 15,
less than two-thirds of the expected number. Without the benefit of expert
testimony, I would hesitate to infer that the disparity between 23 and 15 is great
enough, in itself, to prove discrimination.5 It is perfectly clear, however, that

whatever probative force this disparity has, it tends to prove discrimination and
does absolutely nothing in the way of carrying Hazelwood's burden of
overcoming the Government's prima facie case.
36

Absolute precision in the analysis of market data is too much to expect. We

may fairly assume that a nondiscriminatory selection process would have
resulted in the hiring of somewhere between the 15% suggested by the
Government and the 5.7% suggested by petitioners, or perhaps 30 or 40 black
teachers, instead of the 15 actually hired.6 On that assumption, the Court of
Appeals' determination that there were 16 individual cases of discriminatory
refusal to hire black applicants in the post-1972 period seems remarkably
accurate.

37

In sum, the Government is entitled to prevail on the present record. It proved a

prima facie case, which Hazelwood failed to rebut. Why, then, should we
burden a busy federal court with another trial? Hazelwood had an opportunity
to offer evidence to dispute the 16 examples of racially motivated refusals to
hire; but as the Court notes, the Court of Appeals has already 'held that none of
the 16 prima facie cases of individual discrimination had been rebutted by the
petitioners. See 534 F.2d 805, 814 (CA8).' Ante, at 306 n. 10. Hazelwood also
had an opportunity to offer any evidence it could muster to show a change in
hiring practices or to contradict the fair inference to be drawn from the
statistical evidence. Instead, it 'offered virtually no additional evidence in
response,' ante, at 303.

38

Perhaps 'a totally different story' might be told by other statistical evidence that
was never presented, ante, at 310. No lawsuit has ever been tried in which the
losing party could not have pointed to a similar possibility.7 It is always
possible to imagine more evidence which could have been offered, but at some
point litigation must come to an end.8

39

Rather than depart from well-established rules of procedure, I would affirm the
judgment of the Court of Appeals.9 Since that judgment reflected a correct
appraisal of the record, I see no reason to prolong this litigation with a remand
neither side requested.10

Under 42 U.S.C. 2000e-6(a), the Attorney General was authorized to bring a

civil action '(w)henever (he) has reasonable cause to believe that any person or
group of persons is engaged in a pattern or practice of resistance to the full
enjoyment of any of the rights secured by (Title VII), and that the pattern or

practice is of such a nature and is intended to deny the full exercise of (those
rights).' The 1972 amendments to Title VII directed that this function be
transferred as of March 24, 1974, to the Equal Employment Opportunity
Commission, at least with respect to private employers. 2000e-6(c) (1970 ed.,
Supp. V); see also, 2000e-5(f)(1) (1970 ed., Supp. V). The present lawsuit
was instituted more than seven months before that transfer.
2

Before 1954 Hazelwood's application forms required designation of race, and

those forms were in use as late as the 1962-1963 school year.

Applicants with student or substitute teaching experience at Hazelwood were

given preference if their performance had been satisfactory.

One of those two schools was never visited even though it was located in
nearby St. Louis. The second was briefly visited on one occasion, but no
potential applicant was interviewed.

The parties disagree whether it is possible to determine from the present record
exactly how many of the job applicants in each of the school years were
Negroes.

The defendants offered only one witness, who testified to the total number of
teachers who had applied and were hired for jobs in the 1971-1972 and 19721973 school years. They introduced several exhibits consisting of a policy
manual, policy book, staff handbook, and historical summary of Hazelwood's
formation and relatively brief existence.

As originally enacted, Title VII of the Civil Rights Act of 1964 applied only to
private employer. The Act was expanded to include state and local
governmental employers by the Equal Employment Opportunity Act of 1972,
86 Stat. 103, whose effective date was March 24, 1972. See 42 U.S.C.
2000e(a), (b), (f), (h) (1970 ed., Supp. V).
The evidence of pre-Act discrimination relied upon by the Court of Appeals
included the failure to hire any Negro teachers until 1969, the failure to recruit
at predominantly Negro colleges in Missouri, and somewhat inconclusive
evidence that Hazelwood was responsible for a 1962 Mississippi newspaper
advertisement for teacher applicants that specified 'white only.'

The city of St. Louis is surrounded by, but not included in, St. Louis County.
Mo.Ann.Stat. 46.145 (1966).

Under McDonnell Douglas, a prima facie case of illegal employment

discrimination is established by showing

'(i) that (an individual) 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.' 411 U.S., at 802, 93 S.Ct., at 1824.
Upon proof of these four elements, '(t)he burden then must shift to the
employer to articulate some legitimate, nondiscriminatory reason for the
employee's rejection'. Ibid.
10

The Court of Appeals held that none of the 16 prima facie cases of individual
discrimination had been rebutted by the petitioners. See 534 F.2d, at 814.

11

The District Court was directed to order that the petitioners cease from
discriminating on the basis of race or color in the hiring of teachers, promulgate
accurate job descriptions and hiring criteria, recruit Negro and white applicants
on an equal basis, give preference in filling vacancies to the 16 discriminatorily
rejected applicants, make appropriate backpay awards, and submit periodic
reports to the Government on its progress in hiring qualified Negro teachers.
Id., at 819-820.

12

In their petition for certiorari and brief on the merits, the petitioners have
phrased the question as follows:
'Whether a court may disregard evidence that an employer has treated actual job
applicants in a nondiscriminatory manner and rely on undifferentiated
workforce statistics to find an unrebutted prima facie case of employment
discrimination in violation of Title VII of the Civil Rights Act of 1964.'
Their petition for certiorari and brief on the merits did raise a second question:
'Whether Congress has authority under Section 5 of the Fourteenth Amendment
to prohibit by Title VII of the Civil Rights Act of 1964 employment practices of
an agency of a state government in the absence of proof that the agency
purposefully discriminated against applicants on the basis of race.' That issue,
however, is not presented by the facts in this case. The Government's opening
statement in the trial court explained that its evidence was designed to show
that the scarcity of Negro teachers at Hazelwood 'is the result of purpose' and is
attributable to 'deliberately continued employment policies.' Thus here, as in
International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct.
1843, 52 L.Ed.2d 396, '(t)he Government's theory of discrimination was simply
that the (employer), in violation of 703(a) of Title VII, regularly and
purposefully treated Negroes . . . less favorably than white persons.' Id., at 335,
97 S.Ct., at 1854 (footnote omitted).

13

In Teamsters, the comparison between the percentage of Negroes on the

employer's work force and the percentage in the general areawide population
was highly probative, because the job skill there involved the ability to drive a
truck is one that many persons possess or can fairly readily acquire. When
special qualifications are required to fill particular jobs, comparisons to the
general population (rather than to the smaller group of individuals who possess
the necessary qualifications) may have little probative value. The comparative
statistics introduced by the Government in the District Court, however, were
properly limited to public school teachers, and therefore this is not a case like
Mayor v. Educational Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39
L.Ed.2d 630, in which the racial-composition comparisons failed to take into
account special qualifications for the position in question. Id., at 620-621, 94
S.Ct., at 1333-1334.
Although the petitioners concede as a general matter the probative force of the
comparative work-force statistics, they object to the Court of Appeals' heavy
reliance on these data on the ground that applicant-flow data, showing the
actual percentage of white and Negro applicants for teaching positions at
Hazelwood, would be firmer proof. As we have noted, see n. 5, supra, there
was no clear evidence of such statistics. We leave it to the District Court on
remand to determine whether competent proof of those data can be adduced. If
so, it would, of course, be very relevant. Cf. Dothard v. Rawlinson, 433 U.S.,
321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786.

14

As is discussed below, the Government contends that a comparative figure of

15.4%, rather than 5.7%, is the appropriate one. See infra, at 310-312. But even
assuming, arguendo, that the 5.7% figure urged by the petitioners is correct, the
disparity between that figure and the percentage of Negroes on Hazelwood's
teaching staff would be more than fourfold for the 1972-1973 school year, and
threefold for the 1973-1974 school year. A precise method of measuring the
significance of such statistical disparities was explained in Castaneda v. Partida,
430 U.S. 482, 496-497, n. 17, 97 S.Ct. 1272, 1281, n. 17, 51 L.Ed.2d 498, n.
17. It involves calculation of the 'standard deviation' as a measure of predicted
fluctuations from the expected value of a sample. Using the 5.7% figure as the
basis for calculating the expected value, the expected number of Negroes on
the Hazelwood teaching staff would be roughly 63 in 1972-1973 and 70 in
1973-1974. The observed number in those years was 16 and 22, respectively.
The difference between the observed and expected values was more than six
standard deviations in 1972-1973 and more than five standard deviations in
1973-1974. The Court in Castaneda noted
that '(a)s a general rule for such large samples, if the difference between the
expected value and the observed number is greater than two or three standard

deviations,' then the hypothesis that teachers were hired without regard to race
would be suspect. 430 U.S., at 497 n. 17, 97 S.Ct., at 1281 n. 17.
15

This is not to say that evidence of pre-Act discrimination can never have any
probative force. Proof that an employer engaged in racial discrimination prior to
the effective date of Title VII might in some circumstances support the
inference that such discrimination continued, particularly where relevant
aspects of the decisionmaking process had undergone little change. Cf.
Fed.Rule Evid. 406; Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S., 252, 267, 97 S.Ct. 555, 564, 50 L.Ed.2d 450; 1 J.
Wigmore, Evidence 92 (3d ed. 1940); 2 id., 302-305, 371, 375. And, of
course, a public employer even before the extension of Title VII in 1972 was
subject to the command of the Fourteenth Amendment not to engage in
purposeful racial discrimination.

16

See n. 13, supra, and n. 21, infra. But cf. Teamsters, 431 U.S., at 364-367, 97
S.Ct., at 1868-1869.

17

Indeed, under the statistical methodology explained in Castaneda v. Partida,

supra, 430 U.S., at 496-497, n. 17, 97 S.Ct. 1272, at 1281, n. 17, 51 L.Ed.2d
498 n. 17, involving the calculation of the standard deviation as a measure of
predicted fluctuations, the difference between using 15.4% and 5.7% as the
areawide figure would be significant. If the 15.4% figure is taken as the basis
for comparison, the expected number of Negro teachers hired by Hazelwood in
1972-1973 would be 43 (rather than the actual figure of 10) of a total of 282, a
difference of more than five standard deviations; the expected number of 19731974 would be 19 (rather than the actual figure 5) of a total of 123, a difference
of more than three standard deviations. For the two years combined, the
difference between the observed number of 15 Negro teachers hired (of a total
of 405) would vary from the expected number of 62 by more than six standard
deviations. Because a fluctuation of more than two or three standard deviations
would undercut the hypothesis that decisions were being made randomly with
respect to race, 430 U.S., at 497 n. 17, 97 S.Ct., at 1281 n. 17, each of these
statistical comparisons would reinforce rather than rebut the Government's
other proof. If, however, the 5.7% areawide figure is used, the expected
number of Negro teachers hired in 1972-1973 would be roughly 16, less than
two standard deviations from the observed number of 10; for 1973-1974, the
expected value would be roughly seven, less than one standard deviation from
the observed value of 5; and for the two years combined, the expected value of
23 would be less than two standard deviations from the observed total of 15. A
more precise method of analyzing these statistics confirms the results of the
standard deviation analysis. See F. Mosteller, R. Rourke, & G. Thomas,
Probability with Statistical Applications 494 (2d ed. 1970).

These observations are not intended to suggest that precise calculations of

statistical significance are necessary in employing statistical proof, but merely
to highlight the importance of the choice of the relevant labor market area.
18

In 1970 Negroes constituted only 42% of the faculty in St. Louis city schools,
which could indicate either that the city's policy was not yet in effect or simply
that its goal had not yet been achieved.

19

The petitioners observe, for example, that Harris Teachers College in St. Louis,
whose 1973 graduating class was 60% Negro, is operated by the city. It is the
petitioners' contention that the city's public elementary and secondary schools
occupy an advantageous position in the recruitment of Harris graduates.

20

Because the District Court focused on a comparison between the percentage of

Negro teachers and Negro pupils in Hazelwood, it did not undertake an
evaluation of the relevant labor market, and its casual dictum that the inclusion
of the city of St. Louis 'distorted' the labor market statistics was not based upon
valid criteria. 392 F.Supp. 1276, 1287 (ED Mo.).

21

It will also be open to the District Court on remand to determine whether

sufficiently reliable applicant-flow data are available to permit consideration of
the petitioners' argument that those data may undercut a statistical analysis
dependent upon hirings alone.

'At the initial 'liability' stage of a pattern-or-practice suit the Government is not
required to offer evidence that each person for whom it will ultimately seek
relief was a victim of the employer's discriminatory policy. Its burden is to
establish a prima facie case that such a policy existed. The burden then shifts to
the employer to defeat the prima facie showing of a pattern or practice by
demonstrating that the Government's proof is either inaccurate or insignificant.
An employer might show, for example, that the claimed discriminatory pattern
is a product of pre-Act hiring rather than unlawful post-Act discrimination, or
that during the period it is alleged to have pursued a discriminatory policy it
made too few employment decisions to justify the inference that it had engaged
in a regular practice of discrimination.' International Brotherhood of Teamsters
v. United States, 431 U.S. 324, 360, 97 S.Ct. 1843, 1867, 52 L.Ed.2d 396.

'We accept the Government's contention that St. Louis City and County is the
relevant labor market area for our consideration. The relevant labor market area
is that area from which the employer draws its employees. United States v.
Ironworkers Local 86, 443 F.2d 544, 551 n. 19 (9th Cir. 1971). Of the 176
teachers hired by Hazelwood between October, 1972, and September, 1973,
approximately 80 percent resided in St. Louis City and County at the time of
their initial employment. Approximately one-third of the teachers hired during

this period resided in the City of St. Louis and 40 percent resided in areas of St.
Louis County other than the Hazelwood District.' 534 F.2d 805, 811-812, n. 7
(1976).
It is noteworthy that in the Court of Appeals, Chief Judge Gibson, in dissent,
though urging as Hazelwood had in the District Court that the labor market was
even broader than the Government contended, id., at 821, did not question the
propriety of including the city in the same market as the county, see
Defendants' Brief and Memorandum in Support of Its Proposed Findings of
Fact and Conclusions of Law, filed on Aug. 21, 1974, in Civ. Act. No. 73-C553(A) (ED Mo.). In this Court, petitioners had abandoned any argument
similar to that made below.
3

Proof that an employer engaged in racial discrimination prior to the effective

date of the Act creates the inference that such discrimination continued
'particularly where relevant aspects of the decisionmaking process (have)
undergone little change. Cf. Fed.Rule Evid. 406; Village of Arlington Heights
v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 97 S.Ct. 555,
50 L.Ed.2d 450; 1 J. Wigmore, Evidence 92 (3d ed. 1940); 2 id., 302-305,
371, 375. And, of course, a public employer even before the extension of Title
VII in 1972 was subject to the command of the Fourteenth Amendment not to
engage in purposeful racial discrimination.' Ante, at 309-310, n. 15.
Since Hazelwood's hiring before 1972 was so clearly discriminatory, there is
some irony in its claim that 'Hazelwood continued (after 1972) to select its
teachers on the same careful basis that it had relied on before in staffing its
growing system.' Brief for Petitioners 29-30.

'Had there been evidence obtainable to contradict and disprove the testimony
offered by (the Government), it cannot be assumed that the State would have
refrained from introducing it.' Pierre v. Louisiana, 306 U.S. 354, 361-362, 59
S.Ct. 536, 540, 83 L.Ed. 757.

After I had drafted this opinion, one of my law clerks advised me that, given
the size of the two-year sample, there is only about a 5% likelihood that a
disparity this large would be produced by a random selection from the labor
pool. If his calculation (which was made using the method described in H.
Blalock, Social Statistics 151-173 (1972)) is correct, it is easy to understand
why Hazelwood offered no expert testimony.

Some of the other school districts in the county have a 10% ratio of blacks on
their faculties. See Plaintiff's Exhibit 54 in Civ. Act. No. 73-C-553(A) (ED Mo.
1975); Brief for United States 30 n. 30.

Since Hazelwood failed to offer any 'applicant-flow data' at the trial, and since
it does not now claim to have any newly discovered evidence, I am puzzled by
Mr. Justice BRENNAN's explanation of the justification for a remand. Indeed,
after the first trial was concluded, Hazelwood emphasized the fact that no
evidence of this kind had been presented; it introduced no such evidence itself.
It stated: 'There is absolutely no evidence in this case that provides any basis
for making a comparison between black applicants and white applicants and
their treatment by the Hazelwood School District relative to hiring or not being
hired for a teaching position.' Defendants' Brief and Memorandum in Support
of Its Proposed Findings of Fact and Conclusions of Law, supra, n. 2, at 22.

My analysis of this case is somewhat similar to Mr. Justice REHNQUIST's

analysis in Dothard v. Rawlinson:
'If the defendants in a Title VII suit believe there to be any reason to discredit
plaintiffs' statistics that does not appear on their face, the opportunity to
challenge them is available to the defendants just as in any other lawsuit. They
may endeavor to impeach the reliability of the statistical evidence, they may
offer rebutting evidence, they may disparage in arguments or in briefs the
probative weight which the plaintiffs' evidence should be accorded. Since I
agree with the Court that appellants made virtually no such effort, . . . I also
agree with it that the District Court cannot be said to have erred as a matter of
law in finding that a prima facie case had been made out in the instant case.'
433 U.S. 321, at 338-339, 97 S.Ct. 2720, 2731, 53 L.Ed.2d 786 (concurring
opinion).

It is interesting to compare the disposition in this case with that in Castaneda v.

Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498. In Castaneda, as in this
case, '(i)nexplicably, the State introduced practically no evidence,' id., at 498,
97 S.Ct., at 1282. But in Castaneda, unlike the present case, the Court affirmed
the finding of discrimination, rather than giving the State a second chance at
trying its case. (It should be noted that the Castaneda Court expressly stated
that it was possible that the statistical discrepancy could have been explained by
the State. Id., at 499, 97 S.Ct., at 1282.)

10

Hazelwood's brief asks only for a remand 'for reconsideration of the alleged
individual cases of discrimination . . ..' Brief for Petitioners 78. Hazelwood
explains: '(The question raised in its petition for certiorari is) a question of law.
It is a question of what sort of evidentiary showing satisfies Title VII. . . . The
question is whether on the evidence of record an unrebutted prima facie case
was established.' Reply Brief for Petitioners 2.