Does an executive agency articulate a 'legitimate, non-discriminatory reason' for its employment action under the stricter standard applicable to the federal government where its proffered employment practice provides no rational basis for the action because it is neither professionally developed, based on a job analysis, nor statistically valid?

QUESTION PRESENTED Federal employees’ rights are determined under statutes which require that “all personnel actions affecting employees or applicants for employment . . . in executive agencies as defined in Title 5... shall be made free from any discrimination . . .” See 42 U.S.C. § 2000e-16(a) (race, color, religion, sex, or national origin); 29 U.S.C. § 633a(a) (age). Only last year, a commanding majority of this Court held that this language denoted Congress’ intent to impose a “stricter standard” upon the Federal Government than upon private employers or state and local governments. Babb v. Wilkie, this Court held, without dissent, that Title VII permitted only “professionally developed ability tests” that were “job-related.” The question presented is: Under the “stricter standard” applicable to the Federal Government, does an executive agency articulate a “legitimate, non-discriminatory reason” for its’ employment action where its’ proffered employment practice provides no rational basis for the action because it is neither professionally developed, based on a job analysis, nor statistically valid?