                                                          [PUBLISH]

        IN THE UNITED STATES COURT OF APPEALS

                FOR THE ELEVENTH CIRCUIT



                          No. 98-6600

               D. C. Docket No. 94-00356-CV-T-N

IN RE: EMPLOYMENT DISCRIMINATION LITIGATION
     AGAINST THE STATE OF ALABAMA, et al.,

EUGENE CRUM, JR., individually and on behalf of
a class of similarly situated individuals,
ROBERT L. SMITH, et al.,
                                                     Plaintiffs-Appellees,

                             versus

STATE OF ALABAMA, HALYCON VANCE BALLARD,
individually and in her official capacity as
Director, Alabama Department of Personnel, et
al.,
                                              Defendants-Appellants,

UNITED STATES OF AMERICA,

                                                Intervenor.


           Appeal from the United States District Court
               for the Middle District of Alabama

                      (December 29, 1999)
Before ANDERSON, Chief Judge, TJOFLAT, Circuit Judge, and FAY, Senior
Circuit Judge.

TJOFLAT, Circuit Judge:

       The question presented in this appeal is whether Congress validly abrogated

the states’ Eleventh Amendment sovereign immunity from claims arising under the

disparate impact provisions of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e, et seq. We answer in the affirmative.



                                                 I.

       On March 24, 1994, the United States District Court for the Middle District

of Alabama consolidated several race discrimination cases1 brought by African-

Americans against the State of Alabama, and several of its boards, departments,

and agencies;2 they also sued the Governor of Alabama and other state officials in


       1
         Federal Rule of Civil Procedure 42(a) provides that, “[w]hen actions involving a
common question of law or fact are pending before the court, it may order a joint hearing or trial
of any or all the matters in issue in the actions; it may order all the actions consolidated; and it
may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or
delay.”
       2
        The named defendants in this case include the following boards, departments, and
agencies of the State of Alabama: the Personnel Board, the Department of Corrections, the
Alcoholic Beverage Control Board, the Emergency Management Agency, the Department of
Economics and Community Affairs, the Industrial Development Training Agency, the Bureau of
Tourism and Travel, the Department of Agriculture and Industries, the Department of Education,
the Department of Revenue, the Department of Public Health, the Development Office, the
Retirement System of Alabama, Voters Registration, the Department of Human Resources, the
Department of Mental Health, the Medicaid Agency, the Board of Public Accounting, the

                                                 2
both their individual and official capacities.3 Some of the cases were class actions

in which plaintiffs sued on behalf of themselves and all other black persons who

are employed, have been employed, or who may in the future be employed by the

defendants.4 Plaintiffs claimed, inter alia, discrimination against African-

Americans

       in layoffs, recalls from layoffs, terminations, discipline, hiring,
       rehiring, evaluations, compensation, transfers, job duty assignments,
       recruitment, screening, selection procedures, denial of promotions,
       demotions, rollbacks, sick leave, subjective decision-making
       practices, and other terms and conditions of employment which have
       resulted in disparate impact and treatment of the plaintiff-intervenors
       and the plaintiff class.

They sought declaratory, injunctive, and compensatory relief under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e), et seq., and 42 U.S.C.

§§ 1981 and 1983 (1994).




Commission on Physical Fitness, the Labor Board, the State Docks Department, and the
Department of Transportation.
       3
         In this case, we are concerned only with the disparate impact provisions of Title VII.
We are aware that Title VII “provides relief only against ‘employers’ as defined under the
statute.” Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998), cert.
denied, 120 S. Ct. 327 (1999). We note the individual defendants only as background.
       4
           The issue of class certification is currently pending before the district court.

                                                    3
       On October 7, 1997, the State of Alabama and all parties named as

defendants moved the court, under Federal Rule of Civil Procedure 12(b)(1),5 to

dismiss any and all claims arising under Title VII that were

       predicated upon a disparate impact theory of discrimination[,] on the
       separate grounds that (a) the assertion of such claims against the State
       is barred by the doctrine of sovereign immunity embodied in the
       Eleventh Amendment to the United States Constitution and (b)
       Congress did not express an unequivocal intent to waive immunity
       from such claims.

The district court denied defendants’ motion without prejudice, citing its recent

decision in Reynolds v. Alabama Department of Transportation, 4 F. Supp. 2d

1092 (M.D. Ala. 1998).6 Defendants moved the court to issue a final, appealable

order under Federal Rule 54(b), and the court granted defendants’ motion, vacating

its earlier order, and denying defendants’ motion for dismissal on the merits.

Again citing its decision in Reynolds, the district court held that the Eleventh




       5
          Rule 12(b)(1) provides that the defendant may assert the defense that the court lacks
jurisdiction over the subject matter of the case.
       6
         The court denied the motion without prejudice because the identical issue was raised in
Reynolds, and the court assumed that the state defendants in Reynolds would appeal the court’s
decision that the Eleventh Amendment was not a bar to private suits under Title VII predicated
on a disparate impact theory of liability. The defendants in Reynolds did appeal to this court,
and a resolution of their appeal has been stayed pending the disposition of this appeal.

                                                 4
Amendment did not bar private suits against states under Title VII, which are

predicated on a disparate impact theory of liability. Defendants timely appealed.7



                                                II.

       A district court’s order denying or granting a motion to dismiss a complaint

against a state based on the Eleventh Amendment’s grant of sovereign immunity is

reviewed by this court de novo. See Seminole Tribe v. Florida, 11 F.3d 1016,

1021 (11th Cir. 1994), aff’d on other grounds, 517 U.S. 44, 116 S. Ct. 1114, 134 L.

Ed. 2d 252 (1996).



                                               III.

       In resolving the issues presented on this appeal, it is helpful to look first at

the anatomy of a Title VII discrimination case that employs disparate impact




       7
         Although states can waive their sovereign immunity, the Eleventh Amendment has been
interpreted as a jurisdictional barrier to the power of the federal courts. See Hans v. Louisiana,
134 U.S. 1, 15, 10 S. Ct. 504, 507, 33 L. Ed. 842 (1890) (“The truth is that the cognizance of
suits and actions unknown to the law, and forbidden by the law, was not contemplated by the
constitution when establishing the judicial power of the United States.”). As such, the Supreme
Court has held that a district court order denying a claim by a state or a state entity to Eleventh
Amendment immunity from suit in federal court may be appealed under the collateral order
doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed.
1528 (1949). See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993).

                                                5
methodology.8 The genesis of the disparate impact theory lies in the Supreme

Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L.

Ed. 2d 158 (1971). The question presented in Griggs was

       whether an employer is prohibited by the Civil Rights Act of 1964,
       Title VII, from requiring a high school education or passing of a
       standardized general intelligence test as a condition of employment in
       or transfer to jobs when (a) neither standard is shown to be
       significantly related to successful job performance, (b) both
       requirements operate to disqualify Negroes at a substantially higher
       rate than white applicants, and (c) the jobs in question formerly had
       been filled only by white employees as part of a longstanding practice
       of giving preference to whites.




       8
         We use the term “disparate impact” to distinguish from cases brought under the
“disparate treatment” rationale. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973) (discussing burdens of proof in a disparate treatment case).
Also, whenever the Attorney General “has reasonable cause to believe that any person or group
of persons is engaged in a pattern or practice” of discrimination, he or she may bring an
appropriate lawsuit. 42 U.S.C. § 2000e-6(a) (1994); see, e.g., Hazelwood Sch. Dist. v. United
States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977); International Bhd. of Teamsters v.
United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d (1977). In both disparate treatment and
pattern or practice cases, the plaintiffs are ultimately required to demonstrate discriminatory
intent on the part of the employer.

                                               6
Id. at 425-26, 91 S. Ct. at 851.9 Prior to the date of Title VII’s enactment, the

defendant company in Griggs had openly discriminated on the basis of race in the

hiring and assignment of its employees. When the company abandoned its policy

of de jure discrimination, it made the completion of high school a prerequisite for

employees who wanted to transfer from the company’s labor department (the only

department previously employing African-Americans) to any other department in

the company (all of which formerly hired only whites). The Court found that the

high school requirement, as well as other standardized tests used by the defendant,

had a disparate impact on African-Americans because “[i]n North Carolina . . .,

while 34% of white males had completed high school, only 12 % of Negro males

had done so.” Id. at 430 n.6, 91 S. Ct. at 853 n.6. Similarly, “with respect to

standardized tests, the EEOC in one case found that use of a battery of tests,


       9
        The particular provisions of Title VII interpreted by the Supreme Court in Griggs were
42 U.S.C. § 2000e-2(a)(2) and (h):
       (a) It shall be an unlawful employment practice for an employer–
       ....
                (2) to limit, segregate, or classify his employees 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.
       ....
       (h) Notwithstanding any other provision of this title, it shall not be an unlawful
       employment practice for an employer . . . to give and to act upon the results of
       any professionally developed ability test provided that such test, its administration
       or action upon the results is not designed, intended or used to discriminate
       because of race, color, religion, sex or national origin . . . .
See Griggs, 401 U.S. at 426 n.1, 91 S Ct. at 851 n.1.

                                               7
including the Wonderlic and Bennett tests used by the Company in the instant case,

resulted in 58% of whites passing the tests, as compared with only 6% of the

blacks.” Id. Despite this showing of disparate impact, the company continued to

utilize the tests even though “neither the high school completion requirement nor

the general intelligence test [was] shown to bear a demonstrable relationship to

successful performance of the jobs for which it was used.” Id. at 431, 91 S. Ct. at

853. Given these facts, the Supreme Court reversed the Fourth Circuit’s holding

that “a subjective test of the employer’s intent should govern” Title VII analysis,

id. at 428, 91 S. Ct. at 852, and concluded that “[u]nder the Act, practices,

procedures, or tests neutral on their face, and even neutral in terms of intent, cannot

be maintained if they operate to ‘freeze’ the status quo of prior discriminatory

employment practices,” id. at 430, 91 S. Ct. at 853. From Griggs, therefore,

emerges the now familiar formulation of the core of a disparate impact analysis:

      The Act proscribes not only overt discrimination but also practices
      that are fair in form, but discriminatory in operation. The touchstone
      is business necessity. If an employment practice which operates to
      exclude Negroes cannot be shown to be related to job performance,
      the practice is prohibited.

Id. at 431, 91 S. Ct. at 853.

      Since Griggs, Congress has codified the appropriate burdens of proof in a

disparate impact case in 42 U.S.C. § 2000e-2(k) (1994), and a settled jurisprudence


                                           8
has arisen to implement the methodology. In the first stage of a disparate impact

case, the “complaining party [must] demonstrate[] that a respondent uses a

particular employment practice that causes a disparate impact on the basis of race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i).10 To

“demonstrate” means to “meet[] the burdens of production and persuasion.” 42

U.S.C. § 2000e(m) (1994). In other words, in order to surmount the first hurdle in

a disparate impact race discrimination case, the plaintiff must make out a prima

facie case “that [a] facially neutral employment practice ha[s] a significantly

discriminatory impact.” Connecticut v. Teal, 457 U.S. 440, 446, 102 S. Ct. 2525,

2530, 73 L. Ed. 2d 130 (1982). Demonstrating disparate impact in the first

instance can be tricky business; it often involves ominous-sounding methods of

statistical inquiry like “multiple regression analysis,” see Eastland v. TVA, 704

F.2d 613, 621 (11th Cir. 1983), “standard deviation,” see Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 995 n.3, 108 S. Ct. 2777, 2789 n.3, 101 L. Ed. 2d 827

(1988) (plurality), and the EEOC’s “four-fifths rule,” see id. But what the plaintiff

must attempt to do is show that there is a legally significant disparity between (a)

the racial composition, caused by the challenged employment practice, of the pool

       10
           The statute also provides that “if the complaining party can demonstrate to the court
that the elements of a respondent’s decisionmaking process are not capable of separation for
analysis, the decisionmaking process may be analyzed as one employment practice.” 42 U.S.C.
§ 2000e-2(k)(1)(B)(i).

                                                9
of those enjoying a job or job benefit; and (b) the racial composition of the

qualified applicant pool.11 See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S.

642, 650-51, 109 S. Ct. 2115, 2121, 104 L. Ed. 2d 733 (1989); Edwards v. Wallace

Community College, 49 F.3d 1517, 1520 (11th Cir. 1995).

       The focus during this first stage of the inquiry, and indeed during the whole

of the disparate impact analysis, is on defining the qualified applicant pool. In

order to determine whether an employment practice causes a “disparate” impact,

the court must gain some handle on the baseline racial composition that the impact

is “disparate” from; that is, what should the racial composition of the job force

look like absent the offending employment practice. “[S]tatistics based on an

applicant pool containing individuals lacking minimal qualifications for the job

would be of little probative value.” Watson, 487 U. S. at 997, 108 S. Ct. at 2790

(plurality). The Supreme Court has described as “nonsensical” comparisons to a

baseline pool that is not adequately tailored to reflect only those potential

applicants who are actually qualified for the job or job benefit at issue. Wards



       11
          We include the term “job benefit” to indicate that the disparate impact analysis can be
used to challenge employment practices that have a disparate impact at any level of the
employment structure, from hiring to promotions to levels of compensation.
        We use the term “qualified applicant pool” to indicate that the pool of potential
employees from which employers should choose, absent any discrimination, may include
persons who are not actual applicants for the job or job benefit at issue; by “qualified applicant
pool” we mean the pool from which potential qualified applicants might come.

                                                10
Cove, 490 U.S. at 651, 109 S. Ct. at 2122; see also New York Transit Auth. v.

Beazer, 440 U.S. 568, 585-86, 99 S. Ct. 1355, 1365-66, 59 L. Ed. 2d 587 (1979)

(where plaintiffs challenged city’s policy of not employing persons using

methadone as having a disparate impact on blacks and Hispanics, statistics

indicating the racial composition of methadone users throughout the whole city

“tells us nothing about the class of otherwise-qualified applicants and

employees[,]” in part because “a substantial portion of the persons included in [the

city-wide figures] are either unqualified for other reasons – such as the illicit use of

drugs and alcohol – or have received successful assistance in finding jobs with

employers other than [the defendant]”); Maddox v. Claytor, 764 F.2d 1539, 1549-

50 (11th Cir. 1985) (holding that plaintiff’s statistics did not “shed any light on the

legally relevant issue” because they did not indicate “the group of applicants who

were interviewed, or even the group of applicants found qualified or the group of

all applicants”). “To adequately assess statistical data, there must be evidence

identifying the basic qualifications [for the job or job benefit at issue] and a

determination, based upon these qualifications, of the relevant statistical pool with

which to make the appropriate comparisons.” Peightal v. Metropolitan Dade

County, 26 F.3d 1545, 1553-54 (11th Cir. 1994) (discussing statistical comparison




                                           11
evidence in the context of county’s attempt to establish compelling interest for

affirmative action plan because of past discrimination).

      The contest between the plaintiff and defendant is one in which both seek to

answer the question of who is qualified, and thus to define the qualified applicant

pool on their own terms. Definition of a qualified applicant pool will shift with the

nature of the job or job benefit, and the nature of the challenged employment

practice at issue. At different times, courts have found qualified applicant pools to

be adequately represented by regional populations, see International Bhd. of

Teamsters v. United States, 431 U.S. 324, 337 n.17, 97 S. Ct. 1843, 1855-56 n.17,

52 L. Ed. 2d 396 (1977) (finding regional population figures to be probative in a

pattern or practice discrimination suit), or even national population statistics, see

Dothard v. Rawlinson, 433 U.S. 321, 329-30, 97 S. Ct. 2720, 2727, 53 L. Ed. 2d

786 (1977); Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 870 (11th Cir. 1986).

Using population figures as a proxy for the qualified applicant pool becomes

troublesome, however, “[w]hen special qualifications are required to fill particular

jobs.” Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 n.13, 97 S. Ct.

2736, 2742 n.13 53 L. Ed. 2d 768 (1977) (discussing statistical comparisons in the

context of a pattern or practice case); see also Teamsters, 431 U.S. at 339-40 n.20,

97 S. Ct. at 1856-57 n.20 (“[E]vidence showing that the figures for the general


                                          12
population might not accurately reflect the pool of qualified job applicants would .

. . be relevant.”); Peightal, 26 F.3d at 1554 (“[F]or positions requiring minimal

training or for certain entry level positions, statistical comparison to the racial

composition of the relevant population suffices, whereas positions requiring

special skills necessitate a determination of the number of minorities qualified to

undertake the particular task.”). Courts have thus sometimes found helpful a

showing of the racial composition of the pool of those who actually applied for a

particular job or job benefit, see Teal, 457 U.S. at 443, 102 S. Ct. at 2528-29

(analyzing racial composition of the pool of persons who actually took written

examination administered by employer); Nash v. Jacksonville, 905 F.2d 355, 358

(11th Cir. 1990) (same), or those who were found to be actually qualified in a

given geographic area, see Hazelwood, 433 U.S. at 308, 97 S. Ct. at 2742. But

even actual applicant statistics may “not adequately reflect the actual potential

applicant pool, since otherwise qualified people might be discouraged from

applying because of a self-recognized inability to meet the very standards

challenged as being discriminatory.” Dothard, 433 U.S. at 330, 97 S. Ct. at 2727;

see also Wards Cove, 490 U.S. at 651 n.7, 109 S. Ct. at 2122 n.7; Kilgo, 789 F.2d

at 868.




                                           13
      “If the employer discerns fallacies or deficiencies in the data offered by the

plaintiff, he is free to adduce countervailing evidence of his own.” Dothard, 433

U.S. at 331, 97 S. Ct. at 2727-28. This includes evidence that the plaintiffs have

simply erred in their calculations or evidence that the plaintiffs have failed

sufficiently to tailor their qualified applicant pool. See id. at 338-39, 97 S. Ct. at

2731 (Rehnquist, J., concurring in result and concurring in part) (“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, or they

may disparage in arguments or in briefs the probative weight which the plaintiffs’

evidence should be accorded.”); Peightal, 26 F.3d at 1556-57.

      The key to this first stage is to understand that the concept of a “disparate

impact” on one racial group over another only makes sense if we tailor the

qualified applicant pool to reflect only those applicants or potential applicants who

are “otherwise qualified,” Beazer, 440 U.S. at 585, 99 S. Ct. at 1366, (that is,

qualified but for their failure to meet the challenged employment requirement) for

the job or job benefit at issue. If the court fails to define the qualified applicant

pool in an appropriately specific manner, then the challenged employment practice


                                            14
has not actually been shown to be “causing” any “disparate impact.” Something

else, unrelated to the employer’s practices and procedures, may be holding back a

particular racial group. An example might help clarify our rationale. Consider a

community composed of equal numbers of African-Americans and whites. There

are, let us say, 1,000 blacks and 1,000 whites. Now, imagine that within this

community, an employer announces that it is going to hire eighty new employees,

all for identical labor positions, and that it will only consider applicants who have a

high school diploma. The correlation between educational attainment and race in

the community breaks down as follows: 30% of the African-American segment has

a high school diploma (70% does not), whereas 50% of the white segment has a

high school diploma (50% does not). Now assume that 100 blacks and 100 whites

apply for the eighty jobs. Their educational attainment corresponds in all respects

to that of the community at large; that is, thirty of the African-Americans have a

high school education, as do fifty of the whites. Citing its high school degree

requirement, the employer hires the thirty blacks and the fifty whites with high

school degrees.

      When the seventy rejected black applicants file suit against the employer,

claiming that the high school degree requirement has a disparate impact on

African-Americans in violation of Title VII, the employer responds by introducing


                                          15
evidence that, due to unexplained population trends, 40% of the black segment of

the community is under the age of 18, but all 1000 whites are age 18 or over.

Further, this population figure corresponds positively with the pool of applicants

for the jobs at issue; forty of the 100 black applicants were under 18 years of age,

but all of the whites were 18 or over. Therefore, even if the employer discontinued

its high school diploma requirement, the forty black applicants under age 18 would

not have been hired because the relevant labor laws preclude hiring underage

persons.

      If the African-American plaintiffs continue to assert their claim of disparate

impact, they would in one sense be correct. The high school education

requirement certainly does have a disparate impact on blacks because more than

1.65 times as many whites as blacks have high school diplomas; therefore, 1.65

times as many whites will be hired, in a community composed of equal numbers of

blacks and whites. A finding of disparate impact is only plausible in this situation,

however, if one neglects to consider the qualified applicant pool. The unstated

premise to the conclusion that disparate impact has reared its ugly head in this

hypothetical is that because the community as a whole is composed of equal

numbers of blacks and whites, the eighty employment positions should also be

filled with equal numbers of blacks and whites; but this is not the case. If the


                                          16
employer’s population evidence is credible, then the qualified applicant pool

includes only 60% of the blacks (because 40% are underage), but all of the whites.

What we would expect, given these facts, is that the employment outcome absent

the high school requirement would mimic that produced when a high school

diploma is required – over 1.65 times as many whites as blacks will be hired

because over 1.65 times as many are of working age. Under these facts, it is clear

that the plaintiffs have not demonstrated that the high school diploma requirement

has a disparate impact in the first instance.

       Once the plaintiffs have met their burden of demonstrating that a challenged

employment practice causes a disparate impact, the burden shifts to the defendant

employer “to demonstrate that the challenged practice is job related for the position

in question and consistent with business necessity.” 42 U.S.C. § 2000e-

2(k)(1)(A)(i).12 Alternatively, the complaining party can demonstrate “that other

tests or selection devices, without a similarly undesirable racial effect, would also

serve the employer’s legitimate interest in ‘efficient and trustworthy



       12
          The 1991 amendments to Title VII, inter alia, reversed the Supreme Court’s
interpretation in Wards Cove, 490 U.S. at 659, 109 S. Ct. at 2126, where the Court held that
defendants only need to meet the burden of production, but not persuasion, during the second
stage of a disparate impact case. Section 2000e-2(k)(1)(A)(i) requires an employer to
“demonstrate” that the challenged practice is a job related business necessity, and as noted,
supra, to “demonstrate” means to “meet[] the burdens of production and persuasion.” 42 U.S.C.
§ 2000e(m).

                                             17
workmanship.’ ” Albermarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct.

2362, 2375, 45 L. Ed. 2d 280 (1975) (quoting McDonnell Douglas, 411 U.S. at 81,

93 S. Ct. at 1823); see 42 U.S.C. § 2000e-2(k)(1)(A)(ii). Though this second stage

shifts the burden of demonstration to the defendant, the ultimate focus of the

inquiry remains on the question of who should be included in the qualified

applicant pool. If the employer can demonstrate that the practice at issue is a job

related business necessity, then the employer has shown that there is no ultimate

disparate impact; this is because the qualified applicant pool would only include

those persons who could meet the employer’s challenged criteria. For instance, in

the above hypothetical, if we relax the assumptions with regard to age and race in

the community, and posit that equal numbers of blacks and whites (say 80% of

each) are of working age, then the African-American plaintiffs might be successful

in carrying their prima facie burden of demonstrating that the high school diploma

requirement has a disparate impact on blacks (because only 30% of blacks, as

opposed to 50% of whites, have a high school education). If the employer is

successful in demonstrating that a high school education is a job related business

necessity for the job at issue, then what the employer has done, in effect, is to

demonstrate that the requirement does not actually cause a disparate impact. A

finding of business necessity is equivalent to a finding that the qualified applicant


                                          18
pool only includes those persons who have attained a high school degree.

Likewise, if the employer failed to demonstrate business necessity, then the

plaintiffs would have succeeded in proving disparate impact in the ultimate sense;

this is because the qualified applicant pool would include those persons of working

age who did not posses the required education.

       If the court ultimately finds that the employer has violated the disparate

impact provisions of Title VII, and is therefore engaged in an unlawful

employment practice, the court may order a wide range of equitable relief under 42

U.S.C. § 2000e-5(g)(1) (1994).13 Principally, the court should enjoin the employer



       13
           42 U.S.C. § 2000e-5(g)(1) provides:
        If the court finds that the respondent has intentionally engaged in or is
        intentionally engaging in an unlawful employment practice charged in the
        complaint, the court may enjoin the respondent from engaging in such unlawful
        employment practice, and order such affirmative action as may be appropriate,
        which may include, but is not limited to, reinstatement or hiring of employees,
        with or without back pay (payable by the employer, employment agency, or labor
        organization, as the case may be, responsible for the unlawful employment
        practice), or any other equitable relief as the court deems appropriate. Back pay
        liability shall not accrue from a date more than two years prior to the filing of a
        charge with the Commission. Interim earnings or amounts earnable with
        reasonable diligence by the person or persons discriminated against shall operate
        to reduce the back pay otherwise allowable.
        The statutory requirement that the court find that the employer has “intentionally
engaged” in the unlawful employment practice does not mean that this remedial provision is only
applicable in disparate treatment or pattern or practice cases. “[Section 2000e-5(g)] requires
only that the defendant meant to do what he did, that is, his employment practice was not
accidental.” Local 189, United Papermakers and Paperworkers, AFL-CIO, CLC v. United
States, 416 F.2d 980, 996 (5th Cir. 1969); see also Robinson v. Lorillard Corp., 444 F.2d 791,
796 (4th Cir. 1971). The full range of equitable remedies are available in disparate impact cases
as well.

                                               19
from continuing the use of the challenged practice. As for individual relief, if an

individual plaintiff has shown that he or she was within the class of persons

negatively impacted by the unlawful employment practice, then the employer must

be given an opportunity to demonstrate a legitimate nondiscriminatory reason why,

absent the offending practice, the individual plaintiff would not have been awarded

the job or job benefit at issue anyway. See Stephen v. PGA Sheraton Resort, Ltd.,

873 F.2d 276, 278-79 (11th Cir. 1989); Ross v. Buckeye Cellulose Corp., 733 F.

Supp. 363, 377 (M.D. Ga. 1990), rev’d on other grounds, 980 F.2d 648 (11th Cir.

1993). If the employer cannot so demonstrate, then individual relief may be

merited.



                                               IV.

       The Eleventh Amendment to the United States Constitution states that “[t]he Judicial

power of the United States shall not be construed to extend to any suit in law or equity

commenced or prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” The Amendment has been interpreted as a

jurisdictional bar on the federal courts from hearing suits brought against states by

their own citizens, or by citizens of other states. See Hans v. Louisiana, 134 U.S. 1, 15,

10 S. Ct. 504, 507, 33 L. Ed. 842 (1890). Under Seminole Tribe v. Florida, 517 U.S. 44,



                                                20
116 S. Ct. 1114, 134 L. Ed. 2d (1996), Congress may abrogate a state’s sovereign

immunity, but it can only do so if: (a) Congress “unequivocally expressed its intent

to abrogate the immunity,” through “a clear legislative statement;” and (b)

Congress has acted “pursuant to a valid exercise of power.” Id. at 55, 116 S. Ct. at

1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426, 88 L. Ed.

2d 371 (1985) ). Defendants claim that neither prong is satisfied with regard to the

disparate impact provisions of Title VII. We now address their arguments in turn.



                                               A.

       Defendants first argue that in enacting the disparate impact provisions of

Title VII, Congress failed to express a clear legislative statement of its intent to

abrogate the states’ sovereign immunity. We need address this contention only

briefly. When Title VII was first enacted in 1964, its coverage was not extended to

state and local governments. In 1972, the statute was amended to include

“governments, governmental agencies, [and] political subdivisions.” 42 U.S.C. §

2000e(a).14

       14
         In Fitzpatrick v. Bitzer, 427 U.S. 445, 449 n.2, 96 S. Ct. 2666, 2668 n.2, 49 L. Ed. 2d
614 (1976), the Supreme Court described the statutory change as follows:
       [T]he definition of ‘person’ in § 701(a) of the 1964 Act, 78 Stat. 253, 42 U.S.C. §
       2000e(a), was amended by § 2(1) of the Equal Employment Opportunity Act of
       1972 (hereinafter the 1972 Amendments), 86 Stat. 103, 42 U.S.C. § 2000e(a)
       (1970 ed., Supp. IV), to include ‘governments, governmental agencies, [and]

                                                21
      Seminole Tribe reaffirmed the principle that Congress may abrogate the

states’ sovereign immunity when acting pursuant to its Fourteenth Amendment

enforcement power. See 517 U.S. at 65-66, 116 S. Ct. at 1128. The Fourteenth

Amendment states, in relevant part:

      Section 1. . . . No State shall make or enforce any law which shall
      abridge the privileges or immunities of citizens of the United States;
      nor shall any State deprive any person of life, liberty, or property,
      without due process of law; nor deny to any person within its
      jurisdiction the equal protection of the laws.
      ....
      Section 5. The Congress shall have the power to enforce, by
      appropriate legislation, the provisions of this article.

In Fitzpatrick v. Bitzer, the Supreme Court concluded that,

      [i]n the 1972 Amendments to Title VII of the Civil Rights Act of
      1964, Congress, acting under § 5 of the Fourteenth Amendment,
      authorized federal courts to award money damages in favor of a
      private individual against a state government found to have subjected



      political subdivisions.’
              The express exclusion of ‘a State or political subdivision thereof’ provided
      in § 701(b) of the former was stricken by § 2(2) of the latter, 86 Stat. 103, 42
      U.S.C. § 2000e(b) (1970 ed., Supp. IV). Section 2(5) of the 1972 Amendments,
      86 Stat. 103, 42 U.S.C. § 2000e(f) (1970 ed., Supp. IV), amended § 701(f) of the
      1964 Act, 42 U.S.C. § 2000e(f), to include wihin the definition of ‘employee’
      those individuals ‘subject to the civil service laws of a State government,
      governmental agency or political subdivision.’
              The 1972 Amendments retained the right of an individual aggrieved by an
      employer’s unlawful employment practice to sue on his or her own behalf, upon
      satisfaction of the statutory procedural prerequisites, and made clear that that right
      was being extended to persons aggrieved by public employers. See 1972
      Amendments, § 4(a), 86 Stat. 104, 42 U.S.C. §§ 2000e-5(a)-(g) (1970 ed., Supp.
      IV).

                                               22
      that person to employment discrimination on the basis of ‘race, color,
      religion, sex, or national origin.’

427 U.S. at 447-48, 96 S. Ct. at 2667. The Court also stated that “[t]here is no

dispute that in enacting the 1972 Amendments to Title VII to extend coverage to

the States as employers, Congress exercised its power under § 5 of the Fourteenth

Amendment.” Id. at 453 n.9, 96 S. Ct. at 2670 n.9. Given this clear precedential

guidance, we have no hesitation in concluding that Congress unequivocally

expressed its intent to abrogate the states’ Eleventh Amendment immunity when it

amended Title VII to cover state and local governments.

      Defendants argue that subsequent Supreme Court decisions dealing with the

clarity with which Congress must express its intent to abrogate, such as Dellmuth

v. Muth, 491 U.S. 223, 228, 109 S. Ct. 2397, 2400, 105 L. Ed. 2d 181 (1989), and

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 239-40, 105 S. Ct. 3142,

3146, 87 L. Ed. 2d 171 (1985), compel a reconsideration of Fitzpatrick. We are

unable to reconsider Fitzpatrick since the Supreme Court has clearly held that “if a

precedent of this Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the prerogative of

overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct.

1997, 2017, 138 L. Ed. 2d 391 (1997) (quoting Rodriguez de Quijas v.

                                          23
Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921-22,

104 L. Ed. 2d 526 (1989)). In light of the fact that Seminole Tribe cited Fitzpatrick

approvingly, we do not even think tenable the suggestion that the Supreme Court

has “rejected” the reasoning in Fitzpatrick;15 even if we did think defendants’

contention had some merit, however, it is for the Supreme Court, and not us, to

reconsider its own precedent.

       Defendants next make the somewhat novel argument that since Congress did

not codify the burdens of proof in disparate impact cases until 1991, see Pub. L.

No. 102-166, § 105, 105 Stat. 1071, 1074 (codified at 42 U.S.C. § 2000e-2(k)), it

could not have meant to subject states to disparate impact suits (as opposed to

disparate treatment, or pattern or practice suits) when it amended Title VII to cover

state and local governments in 1972. This argument misunderstands the evolution

of the disparate impact theory. Disparate impact analysis did not spring forth anew


       15
         See Seminole Tribe, 517 U.S. at 59, 116 S. Ct. at 1125 (internal citations omitted),
where the Supreme Court stated:
       In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding
       federal power at the expense of state autonomy, had fundamentally altered the
       balance of state and federal power struck by the Constitution. We noted that § 1
       of the Fourteenth Amendment contained prohibitions expressly directed at the
       States and that § 5 of the Amendment expressly provided that “The Congress
       shall have the power to enforce, by appropriate legislation, the provisions of this
       article.’ We held that through the Fourteenth Amendment, federal power
       extended to intrude upon the province of the Eleventh Amendment and therefore
       that § 5 of the Fourteenth Amendment allowed Congress to abrogate the
       immunity from suit guaranteed by that Amendment.

                                               24
in 1991; as discussed, supra, in 1971 the Supreme Court interpreted the original

Civil Rights Act of 1964, particularly sections 2000e-2(a)(2) and (h), see, supra,

n.9, to prohibit “practices that are fair in form, but discriminatory in operation.”

Griggs, 401 U.S. at 431, 91 S. Ct. at 853. The Supreme Court has explicitly found

that “Congress recognized and endorsed the disparate-impact analysis employed by

the Court in Griggs,” Teal, 457 U.S. at 447 n.8, 102 S. Ct. at 2531 n.8, and that

“Congress indicated [in the 1972 amendments] the intent that the same Title VII

principles be applied to governmental and private employers alike.” Dothard, 433

U.S. at 331 n.14, 97 S. Ct. at 2728 n.14. There is no indication that, by enacting

the 1991 amendments, Congress sought to do anything more than reaffirm and

strengthen the disparate impact analysis, see supra, n.12 and part II. Therefore,

defendants’ argument, while interesting, is meritless because it is clear that

Congress has, indeed, sought to subject states to disparate impact lability under

Title VII.



                                          B.

      The state next contends that even if Congress has expressed its intent to

abrogate the states’ Eleventh Amendment immunity, it has not acted “pursuant to a

valid exercise of power.” Seminole Tribe, 517 U.S. at 55, 116 S. Ct. at 1123


                                          25
(internal quotations omitted). Specifically, the state contends that the disparate

impact provisions of Title VII are not a valid exercise of Congress’ Fourteenth

Amendment enforcement power.



                                               i.

       Our adjudication of this issue would seem to be largely foreclosed by the

former Fifth Circuit’s decision in Scott v. City of Anniston, 597 F.2d 897, 900 (5th

Cir. 1979),16 in which the court held that “Title VII is unquestionably appropriate

legislation to enforce the equal protection clause” and that “the ‘disproportionate

impact’ standard [articulated in Griggs] [is] an appropriate means of fulfilling

those objectives.” See also Allen v. Alabama State Bd. of Educ., 816 F.2d 575,

577 (11th Cir. 1987) (holding that “in civil actions invoking Title VII, state

defendants lack eleventh amendment protection”). In Scott, black employees of

the Public Works Department of the City of Anniston, Alabama, sued their

employer claiming that certain of the city’s employment practices had a disparate

impact on African-Americans. The City argued, and the district court ruled, that

government entities could not be made subject to disparate impact claims under


       16
           In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.

                                               26
Title VII because “the legislature could not by statute create a right of action

subject to less stringent requirements than those imposed by that amendment

alone.” Scott, 597 F.2d at 899. Because Supreme Court decisions like Washington

v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), require plaintiffs

to show that a government entity acted with discriminatory intent in order to

demonstrate a Fourteenth Amendment violation, the district court in Scott reasoned

that subjecting government agencies to disparate impact claims (which do not

require a showing of discriminatory intent) was not within the congressional

prerogative. The former Fifth Circuit reversed, finding that Title VII disparate

impact analysis rested squarely within Congress’ Section 5, Fourteenth

Amendment power. See Scott, 597 F.2d at 900.

      Defendants argue, first, that Scott is inapposite because the plaintiffs in Scott

sued a municipality, a government entity not entitled to Eleventh Amendment

sovereign immunity. This argument is wholly unconvincing. The question in

Scott was essentially the same as the question of whether Congress has the power

to abrogate a state’s sovereign immunity under Seminole Tribe – that is, has

Congress acted within the confines of its Section 5 power “to enforce, by

appropriate legislation, the provisions” of the Fourteenth Amendment. In Scott,

the court answered this question in the affirmative. Because we have already


                                          27
found that in amending Title VII to apply to state and local governments, Congress

expressed its clear intent to abrogate the states’ Eleventh Amendment immunity,

the court’s holding in Scott that Congress acted validly under Section 5 would

seem to end our inquiry.

      Perhaps sensing the tenuousness of their first argument, defendants next

contend that the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S.

507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997), has so altered the constitutional

landscape of what congressional acts can properly be classified as falling within

Congress’ Section 5, Fourteenth Amendment power, that the former Fifth Circuit’s

decision in Scott has effectively been overruled. Where precedent binding upon

this court cannot be reconciled with a subsequent Supreme Court decision, we

must defer to the Supreme Court. Cottrell v. Caldwell, 85 F.3d 1480, 1485 (11th

Cir. 1996); United States v. Shenberg, 89 F.3d 1461, 1480 n.23 (11th Cir. 1996).

Therefore, we now address defendants’ City of Boerne claim.

                                         ii.

      The question presented by defendants is whether the disparate impact

scheme, as we have described it in part III, supra, goes so far beyond the

constitutional command – that no state deny to any person the equal protection of

the law – that it cannot fit within Congress’ Section 5 enforcement power. In order


                                         28
to make out a claim of status-based discrimination in violation of the constitutional

guarantee of equal protection, a plaintiff must prove that a government agent acted

with “discriminatory purpose,” Davis, 426 U.S. at 239, 96 S. Ct. at 2047;17 the

requirement of discriminatory motive “implies more than intent as volition or

intent as awareness of consequences. It implies that the decisionmaker . . . selected

or reaffirmed a particular course of action at least in part ‘because of,’ not merely

‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Adm’r v.

Feeney, 442 U.S. 256, 279, 99 S. Ct. 2282, 2296, 60 L. Ed. 2d 870 (1979) (internal

citations omitted). The Supreme Court has explained that “[d]etermining whether

invidious discriminatory purpose was a motivating factor demands a sensitive

inquiry into such circumstantial and direct evidence of intent as may be available.”

Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252,

266, 97 S. Ct. 555, 564, 50 L. Ed. 2d 450 (1977). Factors a court may consider in

       17
           Davis was the first case in which the Supreme Court expressly stated, “We have never
held that the constitutional standard for adjudicating claims of invidious racial discrimination is
identical to the standards applicable under Title VII, and we decline to do so today.” Davis, 426
U.S. at 239, 96 S. Ct. at 2047. The plaintiffs in Davis, black applicants for employment as police
officers by the District of Columbia, brought suit under the equal protection component of the
Due Process Clause of the Fifth Amendment; they claimed that a written personnel test
administered by the District of Columbia police department had a racially disparate impact on
African-Americans. Had the Supreme Court held that plaintiffs using constitutional equal
protection analysis to attack allegedly discriminatory state action need not demonstrate a
discriminatory purpose, but only a disparate impact, then every state action having a disparate
impact on a particular racial group would have become subject to the Court’s strict scrutiny, “the
most demanding test known to constitutional law.” City of Boerne, 521 U.S. at 534, 117 S. Ct.
at 2171.

                                                29
determining whether state action was motivated by discriminatory animus include:

(1) the disparate impact of the official action; (2) the historical background of the

decision; (3) the specific sequence of events leading up to the challenged decision;

and (4) the legislative or administrative history. See id. at 266-68, 97 S. Ct. at 564-

65.

      Under City of Boerne, it is clear that when Congress is acting pursuant to its

Section 5 enforcement authority, it does not have the power to alter the “substance

of the Fourteenth Amendment’s restrictions on the States.” City of Boerne, 521

U.S. at 519, 117 S. Ct. at 2164. In the equal protection context, this means that the

core congressional motivation must remain consistent with the notion that what the

Constitution prohibits is intentional discrimination on the part of state actors (and

not state action that leads to a merely discriminatory result). In City of Boerne,

Congress had enacted the Religious Freedom Restoration Act (RFRA) in direct

response to the Court’s decision in Employment Division, Department of Human

Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). In

Smith, the Court concluded that consistent with the Free Exercise Clause, a state

may apply neutral, generally applicable laws to religious practices even when those

laws are not supported by a compelling government interest. With RFRA,

Congress sought to supplant the Court’s interpretation with one more favorable to


                                          30
religious interests. The Act attempted to “overrule” Smith by mandating that

neutral laws that substantially burden religious exercise must be justified under the

compelling government interest test. See City of Boerne, 521 U.S. at 512-15, 117

S. Ct. at 2160-62.

      The Court concluded that Congress had acted beyond the scope of its

Fourteenth Amendment enforcement power:

      Congress’ power under § 5 . . . extends only to enforcing the
      provisions of the Fourteenth Amendment. The Court has described
      this power as ‘remedial.’ The design of the Amendment and the text
      of § 5 are inconsistent with the suggestion that Congress has the
      power to decree the substance of the Fourteenth Amendment’s
      restrictions on the States. Legislation which alters the meaning of the
      Free Exercise Clause cannot be said to be enforcing the Clause.
      Congress does not enforce a constitutional right by changing what the
      right is. It has been given the power ‘to enforce,’ not the power to
      determine what constitutes a constitutional violation. Were it not so,
      what Congress would be enforcing would no longer be, in any
      meaningful sense, the ‘provisions of the Fourteenth Amendment.’

City of Boerne, 521 U.S. at 519, 117 S. Ct. at 2164 (internal citations omitted).

The Court emphasized that “[l]egislation which deters or remedies constitutional

violations can fall within the sweep of Congress’ enforcement power even if in the

process it prohibits conduct which is not itself unconstitutional,” id. at 518, 117 S.

Ct. at 2163, but “[t]here must be a congruence and proportionality between the

injury to be prevented or remedied and the means adopted to that end. Lacking



                                          31
such a connection, legislation may become substantive in operation and effect,” id.

at 520, 117 S. Ct. at 2164.

      With RFRA, Congress overstepped its bounds with regard to both the

“injury” it sought to prevent, and the “means” it adopted to that end. As for the

“injury” to be prevented, the legislature failed to demonstrate any recent history of

an injury to the free exercise rights of religious practitioners that rose to the level

of a constitutional violation. See id. at 530, 117 S. Ct. at 2169 (“RFRA’s

legislative record lacks examples of modern instances of generally applicable laws

passed because of religious bigotry. The history of persecution in this country

detailed in the hearings mentions no episodes occurring in the past 40 years.”).

With regard to the “means” adopted, Congress prohibited government interference

with religious exercise in such a sweeping and drastic manner that the Act simply

“[could] not be considered remedial, preventive legislation, if those terms are to

have any meaning.” Id. at 532, 117 S. Ct. at 2170. As to what a plaintiff class of

religious observers would have to prove in a case brought under the Act, “RFRA’s

substantial burden test . . . [was] not even a discriminatory effects or disparate

impact test.” Id. at 535, 117 S. Ct. at 2171. Plaintiffs might be able to bring suit

“[w]hen the exercise of religion ha[d] been burdened in an incidental way by a law

of general application.” Id. Once substantial burden was shown, “the State must


                                           32
demonstrate a compelling governmental interest and show that the law is the least

restrictive means of furthering its interest. . . . Requiring a State to demonstrate a

compelling interest and show that it has adopted the least restrictive means of

achieving that interest is the most demanding test known to constitutional law.” Id.

at 534, 117 S. Ct. at 2171.

      Defendants contend that, like RFRA, the disparate impact provisions of Title

VII are so out of line with the constitutional harm to be remedied that they cannot

be sustained under Congress’ Fourteenth Amendment enforcement power. They

point out that demonstrating disparate impact does not require a plaintiff to show

that the employer was motivated by a discriminatory purpose. In order to prove an

equal protection violation, however, a plaintiff must demonstrate discriminatory

intent, “that the decisionmaker . . . selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon

an identifiable group.” Feeney, 422 U.S. at 279, 99 S. Ct. at 2296. It is true that

the disparate impact analysis does not require plaintiffs to demonstrate a subjective

discriminatory motive on the part of the decisionmaker; but neither this court, nor

the Supreme Court, has ever held that the issue of intent is wholly irrelevant to a

claim of disparate impact. “The distinguishing features of the factual issues that

typically dominate in disparate impact cases do not imply that the ultimate legal


                                           33
issue is different than in cases where disparate treatment analysis is used.”

Watson, 487 U.S. at 987, 108 S. Ct. at 2785. This is because the disparate impact

analysis was designed as a “prophylactic” measure, Teal, 457 U.S. at 449, 102 S.

Ct. at 2531; Albemarle Paper, 422 U.S. at 417, 95 S. Ct. at 2371, to get at

“[d]iscrimination [that] could actually exist under the guise of compliance with

[Title VII].” Griggs, 401 U.S. at 435, 91 S. Ct. at 855-56 (quoting 110 Cong. Rec.

13504 (remarks of Sen. Case) ) (internal quotations omitted); see also Watson, 487

U.S. at 990, 108 S. Ct. at 2786-87 (finding that “even if one assumed that

[discrimination through subjective employment criteria] can be adequately policed

through disparate treatment analysis, the problem of subconscious stereotypes and

prejudices would remain”); Charles R. Lawrence III, “The Id, the Ego, and Equal

Protection: Reckoning With Unconscious Racism,” 39 Stan. L. Rev. 317 (1987).

      In a Title VII race discrimination disparate impact case, the plaintiff carries

the prima facie burden of demonstrating to a court that a particular employment

practice disproportionately burdens one racial group over another. As we

described in our analysis in part III, supra, making out the prima facie case is not

always such an easy thing to do. The plaintiff is forced to tailor her qualified

applicant pool to represent only those applicants or potential applicants who are

otherwise-qualified (but for the challenged employer practice) for the job or job


                                          34
benefit at issue. We emphasize the importance of this tailoring function because if

the qualified applicant pool is adequately narrowed by the interaction between the

plaintiff and defendant during the first stage of the analysis, then a prima facie

finding of disparate impact by the court means that the plaintiff has demonstrated

that the challenged practice (and not something else) actually causes the

discriminatory impact at issue. Though the plaintiff is never explicitly required to

demonstrate discriminatory motive, a genuine finding of disparate impact can be

highly probative of the employer’s motive since a racial “imbalance is often a

telltale sign of purposeful discrimination.” Teamsters, 431 U.S. at 339-40 n.20, 97

S. Ct. at 1856-57 n.20; see also Davis, 426 U.S. at 253, 96 S. Ct. at 2054 (Stevens,

J., concurring) (“Frequently the most probative evidence of intent will be objective

evidence of what actually happened rather than evidence describing the subjective

state of mind of the actor. For normally the actor is presumed to have intended the

natural consequences of his deeds.”). If, after a prima facie demonstration of

discriminatory impact, the employer cannot demonstrate that the challenged

practice is a job related business necessity, what explanation can there be for the

employer’s continued use of the discriminatory practice other than that some

invidious purpose is probably at work? In our race hypothetical in part III, supra,

if the court found that the employer could not demonstrate that its high school


                                          35
diploma requirement was a job related business necessity, why would the employer

continue to require a high school education when it is aware of the practice’s

discriminatory impact on African-Americans?18 In the context of the plaintiff’s

further option of demonstrating an alternative employment practice that has a less

discriminatory impact, the Supreme Court has been even more unambiguous in

characterizing an employer’s refusal to adopt the alternative practice as “evidence

that the employer was using its tests merely as a ‘pretext’ for discrimination.”

Albemarle Paper, 422 U.S. at 425, 95 S. Ct. at 2375; see also Teal, 457 U.S. at 447,

102 S. Ct. at 2530 (even where employer demonstrates that a challenged practice is

a job related business necessity, “the plaintiff may prevail, if he shows that the

employer was using the practice as a mere pretext for discrimination”).

       All of this is not to say that the plaintiff is ever required to prove

discriminatory intent in a disparate impact case; it is clear that what plaintiffs must

demonstrate is a discriminatory result, coupled with a finding that the employer has



       18
          In our hypothetical, the employer’s continuing use of the high school education
requirement would seem particularly probative of discriminatory intent, since the wages for an
employee who did not have a high school degree would, necessarily, be lower; such an employee
would possess less human capital with which to bargain. If the employer could not demonstrate
that the high school diploma requirement was a job related business necessity, then retention of
the requirement would be inefficient since this non-necessary employee attribute will cost more
in terms of higher wages that the employer will have to pay to employees holding a high school
diploma. The employer in this scenario, therefore, would appear to be indulging his “taste” for
discrimination. See Gary S. Becker, The Economics of Discrimination 153-54 (2d ed. 1971).

                                              36
no explanation as to why the challenged practice should be sustained as a job

related business necessity. What our analysis does show, however, is that the

disparate impact provisions of Title VII can reasonably be characterized as

“preventive rules” that evidence a “congruence between the means used and the

ends to be achieved.” Id. at 530, 117 S. Ct. at 2169. Congress has not sought to

alter the “substance of the Fourteenth Amendment’s restrictions on the States” with

the disparate impact provisions of Title VII. City of Boerne, 521 U.S. at 519, 117

S. Ct. at 2164. Our analysis of the mechanics of a disparate impact claim has led

us unavoidably to the conclusion that although the form of the disparate impact

inquiry differs from that used in a case challenging state action directly under the

Fourteenth Amendment, the core injury targeted by both methods of analysis

remains the same: intentional discrimination.

      Further, as to the “means” used, we note that the Supreme Court found in

Boerne that RFRA’s substantial burden test was “not even a discriminatory effects

or disparate impact test.” Id. at 535, 117 S. Ct. at 2171. And if a complainant

could demonstrate a substantial burden on a religious practice, then the government

was automatically saddled with the responsibility of demonstrating that the

challenged government act was justified by a compelling interest, and that it was

the least restrictive means of furthering that interest. Under the disparate impact


                                          37
provisions of Title VII, by contrast, plaintiffs are required to demonstrate that a

particular employment practice has an actual discriminatory impact; and even then,

employers are not required to show that they have some “compelling interest” in

continuing to use the practice, or that they have adopted the “least restrictive

means” of furthering their “compelling interest.” They must merely “demonstrate

that the challenged practice is job related for the position in question and consistent

with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). However difficult this

may have proven to be in some cases, demonstrating business necessity is certainly

on an entirely different evidentiary planet than demonstrating a compelling

interest; it is a rare day, indeed, that courts find government actors to have

adequately demonstrated a compelling interest, and a rarer one still that courts find

no less restrictive alternatives to be available.

      Finally, we need not dredge up this nation’s sad history of racial domination

and subordination to take notice of the fact that the “injury” targeted by Title VII,

intentional discrimination against racial minorities, has since our inception

constituted one of the most tormenting and vexing issues facing this country.

There can be little doubt that the core motivation animating the Fourteenth

Amendment’s Equal Protection Clause was a concern for protecting the rights of

racial minorities subject to historical discrimination, see Alexander Bickel, “The


                                           38
Original Understanding and the Segregation Decision,” 69 Harv. L. Rev. 1 (1955),

and that Congress is acting most comfortably under the Amendment when it is

acting to cure racial prejudice. See Strauder v. West Virginia, 100 U.S. (10 Otto)

303, 306-07, 25 L. Ed. 664 (1880). The House Report accompanying the 1972

amendments to Title VII, extending coverage to state and local governments,

documented the troubling persistence of race discrimination in public employment:

      In a report released in 1969, the U.S. Commission on Civil Rights
      examined equal employment opportunity in public employment in
      seven urban areas located throughout the country – North as well as
      South. The report’s findings indicate that widespread discrimination
      against minorities exists in State and local government employment,
      and that the existence of this discrimination is perpetuated by the
      presence of both institutional and overt discriminatory practices. The
      report cites widespread perpetuation of past discriminatory practices
      through de facto segregated job ladders, invalid selection techniques,
      and stereotyped misconceptions by supervisors regarding minority
      group capabilities. The study also indicates that employment
      discrimination in State and local governments is more pervasive than
      in the private sector. The report found that in six of the seven areas
      studied, Negroes constitute over 70 percent of the common laborers,
      but that most white-collar jobs were found to be largely inaccessible
      to minority persons. For example, in Atlanta and Baton Rouge, there
      were no blacks in city managerial positions.
             In another report issued by the U.S. Commission on Civil
      Rights in 1970, Mexican Americans and the Administration of Justice
      in the Southwest, the Commission found, on the basis of a 1968
      survey, that in the law enforcement agencies and district attorneys’
      offices in the five Southwestern States, Mexican Americans were
      generally underrepresented in proportion to their demographic
      distribution. The statistics in this report show that in the Southwestern
      States Mexican Americans, who constitute approximately 12 percent
      of the population, account for only 5.2 percent of police officers and

                                         39
      6.11 percent of civilian employers [sic] with law enforcement
      agencies.
             The problem of employment discrimination is particularly acute
      and has the most deleterious effect in these governmental activities
      which are most visible to the minority communities (notably
      education, law enforcement, and the administration of justice) with the
      result that the credibility of the government’s claim to represent all the
      people equally is negated.

H.R. Rep. No. 92-238 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2152-53. The

means used by Congress in the disparate impact provisions of Title VII, so closely

aligned to the constitutional equal protection analysis, are neither incongruent with

the purpose of preventing intentional discrimination in public employment, nor

disproportionate to the injury to be avoided.



                                         V.

      For the foregoing reasons, we conclude that in enacting the disparate impact

provisions of Title VII, Congress has unequivocally expressed its intent to abrogate

the states’ Eleventh Amendment sovereign immunity, and that Congress has acted

pursuant to a valid exercise of its Fourteenth Amendment enforcement power. We,

therefore, AFFIRM the district court’s denial of defendants’ Rule 12(b)(1) motion

to dismiss all disparate impact claims against the State of Alabama, based on the

state’s claim to sovereign immunity under the Eleventh Amendment.

      AFFIRMED.

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