An examination was made of the evidentiary problems that exist in using a disparate impact theory to challenge the subjective criteria many organizations use to hire, promote, or dismiss upper-level professional and managerial employees. Although subjective criteria occur at all levels of employment, they are especially prevalent when dealing with upper-level jobs. Thus, subtle race and gender-based discrimination is harder to prove. At stake are the interests of employees who want the freedom to aspire to upper-level professional and managerial jobs without race or gender barriers, employers who want to make efficient decisions, and society, which has an interest in providing equal access to economic institutions. Title VII of the 1964 Civil Rights Act is the legislation used to combat workplace discrimination. However, applying this law to the less-blatant types of workplace discrimination has been extremely difficult. The Supreme Court has considered many cases alleging disparate treatment. Court decisions based on these suits held that employment tests had to be job related, but were vague with regard to whether disparate impact analysis could be applied to subjective decisions under workable evidentiary standards. Since job criteria for upper-level positions are vague and constantly changing, Title VII is not equipped to cure racial and gender discrimination in the work force of the 1990s and beyond. (One hundred twenty-one text notes, most citing court cases, are included.) (KC)