concurring in the judgment.
I concur in the judgment of the Court, but I do not agree with all that is said in the Court’s opinion.
The statutory authority for making awards of backpay in Title VII cases is cast in language that emphasizes flexibility and discretion in fashioning an appropriate remedy:
“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 ... or any other equitable relief as the court deems appropriate.” 78 Stat. 261, as amended, 86 Stat. 107, 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. Ill) (emphasis added).
Despite this statutory emphasis on discretion, the Court of Appeals in this case reasoned by analogy to Newman v. Piggie Park Enterprises, 390 U. S. 400 (1968), that once a violation of Title VII had been established, “[backpay] should ordinarily be awarded . . . unless special circumstances would render such an award unjust.” 474 F. 2d 134, 142 (CA4 1973). Today the Court rejects the “special circumstances” test adopted by the Court of Appeals and holds that the power to award backpay is a discretionary power, the exercise of which must be measured against “the purposes which *448inform Title VII.” Ante, at 415-417. With this much of the Court’s opinion I agree. The Court goes on to suggest, however, that an employer’s good faith is never a sufficient reason for refusing to award backpay. Ante, at 422-423. With this suggestion I do not agree. Instead, I believe that the employer’s good faith may be a very relevant factor for a court to consider in exercising its discretionary power to fashion an appropriate affirmative action order. Thus, to take a not uncommon example, an employer charged with sex discrimination may defend on the ground that the challenged conduct was required by a State’s “female protective” labor statute. See, e. g., Kober v. Westinghouse Electric Corp., 480 F. 2d 240 (CA3 1973); Manning v. General Motors Corp., 466 F. 2d 812 (CA6 1972), cert. denied, 410 U. S. 946 (1973); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F. 2d 1002 (CA9 1972); LeBlanc v. Southern Bell Telephone & Telegraph Co., 460 F. 2d 1228 (CA5), cert. denied, 409 U. S. 990 (1972). In such a case, the employer may be thrust onto the horns of a dilemma: either he must violate Title VII or he must violate a presumptively valid state law. Even though good-faith reliance on the state statute may not exonerate an employer from a finding that he has intentionally violated Title VII, see, e. g., Kober v. Westinghouse Electric Corp., supra; cf., ante, at 423 nn. 17-18, surely the employer’s good-faith effort to comply with Title VII to the extent possible under state law is a relevant consideration in considering whether to award backpay. Although back-pay in such a case would serve the statutory purpose of making the discriminatee whole, it would do so at the expense of an employer who had no alternative under state law and who derived no economic benefit from the challenged conduct.
I also agree with the decision of the Court *449to vacate the judgment of the Court of Appeals insofar as it appeared to require an injunction against all testing by Albemarle. I cannot join, however, in the Court’s apparent view that absolute compliance with the EEOC Guidelines is a sine qua non of pre-employment test validation. The Guidelines, of course, deserve that deference normally due agency statements based on agency experience and expertise. Nevertheless, the Guidelines in question have never been subjected to the test of adversary comment. Nor are the theories on which the Guidelines are based beyond dispute. The simple truth is that pre-employment tests, like most attempts to predict the future, will never be completely accurate. We should bear in mind that preemployment testing, so long as it is fairly related to the job skills or work characteristics desired, possesses the potential'of being an effective weapon in protecting equal employment opportunity because it has a unique capacity to measure all applicants objectively on a standardized basis. I fear that a too-rigid application of the EEOC Guidelines will leave the employer little choice, save an impossibly expensive and complex validation study, but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII.