nor shall it be an unlawful employment practice for an employer to give and act upon
the results of any professionally developed ability test provided that such test, its ad-
ministration, or action upon the results is not designed, intended, or used to discriminate
because of race, color, religion, sex, or national origin.

The original amendment proposed by Senator Tower said, "design or in-
tended to discriminate." This amendment was rejected. The words "or used"
were added by Senator Humphrey as a compromise, and the amendment was
approved.

The first race discrimination case to reach the Supreme Court was Griggs v.
Duke Power Company. Duke Power had two lines of progression, one for whites
who operated the power plant and one for blacks who worked in the coal yard.
The highest-paid black earned less than the lowest-paid white. After the passage
of Title VII, Duke Power opened the jobs in the white line of progression to
those who had a high school education. Realizing that this was a difficult stan-
dard for some potentially competent applicants to meet, they offered an alter-
native route. Employees could be transferred to the more desirable jobs by
passing two aptitude tests with a score higher than that of the average high
school graduate. A handful of applicants, black and white, took the test and
failed. With the backing of the NAACP Legal Defense Fund, Willie Griggs and
other affected blacks sued.

Duke Power argued that they did not intend to discriminate, and besides, the
tests met the standard of being "professionally developed" because they were
developed by professionals. I testified that I could not look into the hearts and
minds of the executives of Duke Power but that the phrase "professionally
developed" in the Tower amendment could only mean that it met the standards
in the then-current Guidelines on Employment Testing Procedures of the Equal
Employment Opportunity Commission ( 1965) and the Technical Recommen-
dations for Psychological Tests and Diagnostic Techniques ( 1954) of the Amer-
ican Psychological Association. The Supreme Court, invoking the word "used,"
said that the effect of the selection procedure, not the intent, was crucial and
that the test user had to demonstrate job relatedness if there was an adverse
impact on minorities, that is, if there was a demonstration that they were hired
or promoted at a substantially lower rate than that of the non-minorities. The
plaintiffs lost in the District Court and in the Appeals Court by a vote of 2-1,
but won in the Supreme Court, 8-0.

The company's validity study in the next significant case, Albemarle Paper
Company v. Moody, ran to one and one-half pages, exclusive of charts that
illustrate the effect of the reported correlation coefficients. It omitted data from
part of the organization, although parallel data from other parts of the organi-
zation were included. One sample had six members. The Supreme Court, de-
termining that the company had failed to demonstrate that the tests were
job-related, found for the plaintiff.

In the last case in which I testified that reached the Supreme Court, Davis v.Washington

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