What is the likelihood of success in a civil rights case brought by an employee who alleges that his employer discriminated against him on the basis of his performance on an ability test?

In assessing likelihood of success, the district court should bear in mind the substantive law of employment discrimination: Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., not only forbids overt and intentional discrimination; it also prohibits discrimination resulting from acts that are facially neutral but have a "disparate impact." International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Title VII permits employers to "act upon the results of any professionally developed ability test," provided that the test is not designed to discriminate on the basis of, inter alia, race, color or national origin. 42 U.S.C. Sec. 2000e-2(h).