Griggs v. Duke Power Co., 401 U.S. 424 (1971) is the seminal case on disparate impact.
By the time I studied employment discrimination in law school, this case was old enough that we read it for background only, and did not really consider that it could well have been decided otherwise.
Now, with hindsight, I accompany this summary with some critical thoughts. Perhaps Griggs should have been decided differently. You be the judge.
First, some quick background reading:
HR Guide to the Internet. This source has a good “nutshell definition of disparate impact — and the Griggs holding:
Even where an employer is not motivated by discriminatory intent, Title VII prohibits an the employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.
Excerpt from class notes by J. Hoult Verkerke, professor at U. Virginia (good brief overview of disparate impact, with interesting distinction between “expanded negative equality” and “positive equality”)
This source cites an article whose title indicates I am not alone in questioning the wisdom of Griggs: Michael Evan Gold, Griggs’ Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform, 7 Indus. Rel. L.J. 429 (1985).
In Griggs, the Court was succinct and unamimous, but left many issues open for future resolution, simply laying down broad general principles. The opinion by then-Chief Justice Burger started by stating the question for decision as follows:
[W]hether 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.
(c) could have been used to limit the holding of Griggs. To my knowledge it has not been.
Facts of the case:
Prior to the Civil Rights Act of 1964, the employer had openly discriminated on the basis of race, employing “Negroes” in only the lowest-paid of 5 departments.
Since 1955, the employer had required a high school education for initial assignment to any other department. But previously-hired white employees lacking such education had continued to perform satisfactorily and achieve promotions in such departments.
Upon the effective date of Title VII, the employer began also requiring satisfactory scores on two professionally prepared aptitude tests for jobs in these other departments. Soon after, it began allowing employees without high school educations to qualify for transfer by passing two tests, neither of which was intended to measure the ability to learn to perform a particular job or category of jobs.
In the ruling reversed by the Supreme Court, the Court of Appeals had concluded that “a subjective test of the employer’s intent should govern, particularly in a close case, and that in this case there was no showing of a discriminatory purpose in the adoption of the diploma and test requirements.”
Now here’s a quotation of the essential portions of the Supreme Court’s opinion [with my running commentary]:
The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under 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.
(Again, here’s that “(c)” point about past discrimination. You might think proof of past intentional discrimination would become an essential element of a disparate impact claim. You’d be wrong. Judicial activism often proceeds incrementally by qualifying a holding in this way and then in subsequent cases ignoring such qualification. The “slippery slope” objectors thus often prove correct over time. Even though their arguments are often characterized as logical fallacies, the steps down the slope may well occur, and the logic of the slippery slope argument itself is not inherently flawed, taking the form of a potentially valid deductive argument.)
The above conclusion about the objective of Congress may not be so “plain” from the statute.
The only statutory provision the Court cited was Sec. 703. (a), providing:
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. . . .”
The Court does not directly address the meaning of the operative words “because of.” If race, etc. is not itself the reason for the employment action, but there is only a statistical correlation between race and the factor actually relied upon (i.e., more blacks lack high school education and/or fail the tests), in what sense is the action “because of . . . race”?
[W]hites register far better on the Company’s alternative requirements than Negroes. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools . . .
But many “Negroes” have stuck it out and graduated from those inferior segregated high schools, and many, if far fewer than whites, pass the tests. So the correlation is far from complete. And how will we apply this to sex discrimination? To today’s non-segregated, though still inferior, public schools?
Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. [whew!] In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.
Here, with the reference to preference for minorities, the Court foreshadows the coming disputes over quotas and reverse discrimination that are a potential danger of overemphasis on statistical disparities).
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. . .
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.
This is the Court’s interpretation. Congress did not state the “business necessity” standard (As we shall later see, it did in 1991, 20 years later).
On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the overall quality of the work force.
The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used. . .
This fact (together with the highly suspicious timing of changes in job requirements when the Act took effect) could have been used to make a “pretext” argument — that clearly the employer’s true intent was to use the requirements to hinder hiring and promotion of “Negroes,” furthering a racist agenda, since the employer’s stated justification was contradicted by its own actions with respect to existing white employees.
The Court of Appeals held that the Company had adopted the diploma and test requirements without any “intention to discriminate against Negro employees.” . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability.
The Company’s lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. . .
Where does the statute say this? Should the Court have been more honest in explaining that it drew this conclusion by interpretation?
The Company contends that its general intelligence tests are specifically permitted by 703 (h) of the Act. That section authorizes the use of “any professionally developed ability test” that is not “designed, intended or used to discriminate because of race . . . .”
The Equal Employment Opportunity Commission . . . has issued guidelines interpreting 703 (h) to permit only the use of job-related tests. The administrative interpretation of the . . . Act by the enforcing agency is entitled to great deference. . . Since the Act and its legislative history support the Commission’s construction, this affords good reason to treat the guidelines as expressing the will of Congress.
So here the judiciary and executive trump the legislative branch in interpreting one of the most highly contested pieces of legislation of the 20th century. The following passage analyzes legislative history, but its conclusion is not ineluctable.
Section 703 (h) [quoted above] was not contained in the House version of the Civil Rights Act but was added in the Senate during extended debate. For a period, debate revolved around claims that the bill . . . would prohibit all testing . . . Proponents of Title VII sought . . . to assure the critics that the Act would have no effect on job-related tests. Senators Case . . . and Clark . . . issued a memorandum explaining that the proposed Title VII “expressly protects the employer’s right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” . . Despite these assurances, Senator Tower . . . introduced an amendment authorizing “professionally developed ability tests.” Proponents of Title VII opposed the amendment because . . . it would permit an employer to give any test, “whether it was a good test or not, so long as it was professionally designed. Discrimination could actually exist under the guise of compliance with the statute.”
The amendment was defeated and two days later Senator Tower offered a substitute amendment which was adopted verbatim and is now the testing provision of 703 (h). . . From the sum of the legislative history relevant in this case, the conclusion is inescapable that the EEOC’s construction of 703 (h) to require that employment tests be job related comports with congressional intent.
Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.
Here’s my conclusion from this legislative history. The Congressional majority wanted to allow the use of professionally developed ability tests, but was rightly concerned such tests could be intentionally imposed by employers as a means of advancing a discriminatory agenda.
“Designed, intended or used” is broader than simply “intended.” But it is distinctly different from having a statistically significant impact on a protected minority, and not meeting particular standards of validation.
Perhaps I seem nitpicky in distinguishing between viewing a questionable test or qualification standard as a pretext for intentional discrimination from viewing it as a violation unto itself, regardless of intent (what the Court held in Griggs). Note that this professor also does so.
But it makes a huge practical difference, and an important theoretical one. After Griggs and McDonnell Douglas, decided a few years later, employment discrimination law has had to struggle with a troublesome dichotomy: is the claim disparate impact (Griggs) or disparate treatment (McDonnell-Douglas), or both?
The question could have been kept a single one, echoing the statutory language: has the plaintiff proven that the action was taken because of race (sex, etc.); has the plaintiff proven that had everything else been the same but for his/her race (sex, etc.), the employer’s action would have been different? This is what “because of” or “causation” has traditionally meant in the law (an oversimplification, legal scholars will correctly assert, but this simple “but-for’ standard is normally a good starting point).
Practically speaking, as the Wal-Mart case illustrates, disparate impact is the foot in the door for massive class actions. If, like this person, and this one, and many others, you wonder why thousands of women working for Wal-Mart who neither sought nor were qualified for promotions may well share in a monetary remedy, perhaps now you are beginning to grasp the answer, and to understand how the statistical issues Michael is discussing became so important.
My personal view is that disparate impact analysis can become a very time-consuming and costly process for employers, frequently resulting in a sense that whatever you do, it’s not good enough. It also makes quota-based workforce management tempting, but wrong.
The positive spin I’d like to close with is this. The business justification defense is an added incentive to do something that by definition makes good business sense for nonlegal reasons, but is too often neglected: scrutinize hiring, compensation, promotion, and termination practices, and apply “best practices” HR techniques throughout. This, rather than the battle of experts over the existence of statistical disparities, is where these cases will ultimately be won.
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