The Crusade for Equality in the Workplace

The Griggs v. Duke Power Story

Robert Belton, Stephen L. Wasby

• Publisher: University Press of Kansas
• Year: 2014
• ISBN:
  9780700619801
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

On March 8, 1971, the Supreme Court of the United States decided a case, Griggs v. Duke Power Co., brought by thirteen African American employees who worked as common laborers and janitors at one of Duke Power's facilities. The decision, in plaintiffs' favor, marked a profound and enduring challenge to the dominance of white males in the workplace. In this book, Robert Belton, who represented the plaintiffs for the NAACP Legal Defense Fund and argued the case in the lower courts, gives a firsthand account of legal history in the making—and a behind-the-scenes look at the highly complex process of putting civil rights law to work.Title VII of the Civil Rights Act of 1964 eliminated much blatant discrimination, but after its enactment and before Griggs, businesses held the view that a commitment to equality required only eliminating policies and practices that were intentionally discriminator—the "disparate treatment" test.In Griggs v. Duke Power Co., the Supreme Court ruled that a "disparate impact" test could also apply—that the 1964 Civil Rights Act extended to practices with a discriminatory effect. In tracing the impact of the Griggs ruling on employment practices, this book documents the birth, maturation, death, and rebirth of the disparate impact theory, including its erosion by later Supreme Court decisions and its restoration by congressional action in the Civil Rights Act of 1991.Belton conducts us through this historic case from the original lawsuit to the Supreme Court decision in Griggs and beyond as he traces the post- Griggs developments in the lower courts, the Supreme Court, and Congress; he provides informed insights into both litigators' and judges' perspectives and decision-making. His work situates the case in its legal, social, and historical contexts and explores the relationship between public and private enforcement of the law, with a focus on the Legal Defense Fund's litigation campaign against employment discrimination. A detailed examination of the development of legal principles under Title VII, this book tells the story of this seminal decision on equal employment law and offers an unprecedented close-up view of personal conviction, legal strategy, and historical forces combining to effect dramatic social change.

1. Introduction

On March 8, 1971, the Supreme Court of the United States decided a landmark civil rights case that was the major catalyst for a social movement that has challenged in profound ways the historical dominance of white males in the workplace. The case is Griggs v. Duke Power Company (1971),* and this book is the history of the pioneering litigation campaign out of which Griggs and its progeny arose. The case was brought by thirteen African American employees who worked as common laborers and janitors at a Duke Power electrical generating facility located in rural Rockingham County, North Carolina. Most of them had not graduated from high school, and they refused to take an intelligence test and a mechanical ability test as a requirement to be considered for jobs historically limited to white persons. They sued Duke Power for violations of their rights under Title VII of the Civil Rights Act of 1964.

The 1964 Civil Rights Act remains the most comprehensive civil rights law ever enacted to implement this nation’s commitment to equality. It has been called “the greatest legislative achievement of the civil rights movement . . . [and] arguably the most important domestic legislation of the postwar era.”¹ Of the eleven titles in the 1964 Act, Title VII has had the most significant impact on shaping the enforcement of our commitment to equality.² Title VII makes it unlawful for employers, unions, and employment agencies to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin.

With some exceptions, such as the Equal Pay Act of 1963 and a portion of the Voting Rights Act of 1965, the view long held before Griggs was that our commitment to equality requires only the abolition of policies and practices that are motivated by discriminatory intent. This traditional, intent-based rule of law is known as the disparate treatment theory of discrimination. Persons relying on the disparate treatment theory to challenge race- or sex-neutral discriminatory conduct face difficult evidentiary barriers because, as one court so aptly described the problem, “[d]efendants of even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it; and because employment decisions involve an element of discretion, alternative hypotheses (including that of simple mistake) will always be possible and often plausible.”³ The notion of “simple mistake” had been engrafted onto the disparate treatment theory as the “honest mistake” defense. Thus, even if the reason for its adverse employment decision is proven to be mistaken, foolish, trivial, or baseless, the defense allows an employer to escape liability for unlawful discrimination as long as the employer honestly believed that its action was lawful.⁴

In Griggs, the Court specifically rejected the argument that only intentional discrimination offends our national commitment to equality when it endorsed a revolutionary and controversial theory of equality—the disparate impact theory. The disparate impact theory is revolutionary because it broadens the meaning of discrimination to impose an obligation on employers and unions to avoid using race- or sex-neutral employment practices that disproportionately disadvantage persons on the basis of race or sex (or other protected characteristics) where they cannot prove that the challenged practices are mandated by business necessity or where alternative practices with less adverse effects exist. The fact that an employer or union was not motivated by discriminatory intent is totally irrelevant under the disparate impact theory. In Griggs, the race-neutral practices at issue were the Wonderlic Personnel Test, which allegedly measures general intelligence; the Bennett Mechanical Comprehension Test; and a high school diploma requirement. Neither the tests nor the high school diploma requirement had been adopted or intended by Duke Power to measure the ability of applicants or employees to perform a particular job or category of jobs historically limited to white persons. There was no evidence that Duke Power had intentionally adopted the tests and the high school diploma requirements to limit or restrict blacks to the common laborer and janitor jobs because of their race. Nevertheless, both had the effect of freezing blacks into the racially segregated common laborer and janitor jobs because blacks graduate from high school at a substantially lower rate than whites and because it is undisputed that often blacks perform less well than white persons on pen-and-paper tests. The Supreme Court ruled in favor of the black employees under the disparate impact theory because Duke Power presented no evidence that either the test battery or the educational requirement was mandated by business necessity, namely, that neither provided any information about the potential ability of the black employees to safely and efficiently perform the jobs historically limited to white employees. Prior to Griggs, there had not been a single reported judicial decision that specifically endorsed the disparate impact theory. Several lower courts had suggested the theory without categorically endorsing it. The Supreme Court has consistently acknowledged the distinction between disparate treatment discrimination and disparate impact discrimination.

The Griggs disparate impact theory is revolutionary in other ways. It ushered in one of the greatest social movements in the history of this nation because it opened up jobs and other employment opportunities, previously limited to white males, in both the public and private sectors for millions of African Americans, women, Latinos/as, Asian Americans, and Native Americans—an outcome that would not have been possible under the traditional intent-based disparate treatment theory of discrimination. Griggs changed forever both the course of civil rights enforcement and the public, political, judicial, and scholarly discussion on the meaning of our national commitment to equality. It opened up a completely new remedial approach to eradicating unlawful discrimination in our society. It provided a new perspective for framing the debate about the meaning of equality, on which there is unanimity as to the principle in the abstract but also a substantial and ongoing disagreement about how to transform this abstract principle into reality.

Griggs also provided support for a transition from a human relations/ administrative civil rights enforcement model to a public law enforcement model. The human relations/administrative civil rights enforcement model tends to view discrimination more as a moral than as a legal wrong. Under the human relations/administrative civil rights enforcement model, dominant prior to the Civil Rights Act of 1964, legal coercion is deemed to be inappropriate even when judicial enforcement authority is provided.⁵ Also, the traditional private law model of litigation tends to view judges as arbiters of disputes between private individuals asserting particular rights. On the other hand, the public interest model of litigation, which emerged in the 1960s and 1970s, views judges not merely as arbiters to settle private disputes but also as creators and managers of complex forms of ongoing relief that provides remedies to large classes of persons not before the court and that requires judges to be continually involved in the administration and implementation of judicial decrees.⁶ The class action is the principal procedural device in the public law litigation model, and employment discrimination class actions fall within this litigation model.⁷

The disparate impact theory is one of the most controversial developments in civil rights history because, by focusing on protecting groups from the discriminatory effects of race- and sex-neutral practices rather than discrete acts of intentional discrimination against individuals, it supports affirmative action as a remedy for societal discrimination. It has sparked a vigorous and often contentious public, political, and scholarly debate about the legality of affirmative action because it supports affirmative action remedies that otherwise might be unlawful under a constitutional equal protection approach. It also encourages discrimination lawsuits brought largely by white males claiming “reverse discrimination.” For better or worse, the theory provokes heated arguments about the limits of our commitment to equality; it seizes our intellect and roils our emotions. It both unites and divides one group from another.

Although Griggs was an employment discrimination case, the disparate impact theory has been implemented in voting rights cases brought under Section 5 of the Voting Rights Act and extended to housing discrimination cases. In addition, many states and municipalities that have their own laws prohibiting discrimination in employment and other activities have explicitly endorsed the Griggs impact theory or found the theory to be persuasive authority in analyzing discrimination claims based on state civil rights laws. The international influence of the Griggs disparate impact theory is manifest in the civil and human rights laws of other countries that have looked to the civil rights legislation and jurisprudence of the United States for guidance in enacting and interpreting their own civil and human rights laws.

The effect of Griggs on civil rights enforcement often has been compared to that of Brown v. Board of Education, the famous school desegregation case, and a federal judge has stated that “in [his] opinion, [Griggs] even more than Brown . . . proved to be the most significant in combating racial discrimination.”⁸ The potential and far-reaching effects that Brown would have on discrimination in the public sector were widely acknowledged immediately after the Supreme Court announced that decision on May 17, 1954. Unlike Brown, however, the revolutionary effects of Griggs on civil rights enforcement evolved, by and large, only over time. Like Brown, Griggs is likely to remain a source of critical public and scholarly debate for many generations to come. And like Brown, Griggs has been praised and damned.⁹ In July 1971, in an unprecedented and unedited television interview of a sitting Chief Justice of the Supreme Court of the United States, Warren Burger, who authored the unanimous decision in Griggs, was asked what he regarded as the most important decisions handed down during his first two full Terms. Chief Justice Burger specifically identified only one case: Griggs.¹⁰ One scholar of employment and civil rights law stated that “[f]ew decisions in our time—perhaps only Brown v. Board of Education—have had such momentous social consequences as Griggs”;¹¹ that Griggs brought about “one of the great social movements in this, or any, era” because employers could increase dramatically their employment of minorities and women when they discovered, as a result of Griggs, that many standards they thought necessary to find qualified employees were not in fact required and were thus liberated from their attachment to non-job-related criteria;¹² and that Griggs is in the “tradition of the great cases of constitutional and tort law which announce and apply fundamental legal principles.”¹³ Others acknowledged that Griggs “burst like a bombshell [in civil rights enforcement] in 1971” and “stunned” the legal world, or that it was “the single most important Title VII decision, both for the development of the law and its impact on the daily lives of Americans.”¹⁴

Griggs’s legitimacy, like Brown’s, has been questioned. One of the harshest critics of laws prohibiting discrimination in employment, Professor Richard Epstein, baldly asserted that “[i]f in 1964 any sponsor of the Civil Rights Act had admitted Title VII on the ground that it adopted the disparate impact test read into it by the Supreme Court in Griggs, Title VII would have gone down to thundering defeat and perhaps brought the rest of the [A]ct down with it.”¹⁵ Yet, he, too, had to recognize that Griggs was the “first and single most important Supreme Court decision under Title VII” at the time it was decided.¹⁶ Another critic conceded that Griggs “gave civil rights activists a stunning (publicly unheralded) victory” and was a “revolutionary” theory of equality.¹⁷ Others have argued that the Court’s interpretation of Title VII in Griggs went beyond the original statutory bargain reached between the proponents and opponents of the statute, that Griggs rested on “weak doctrinal foundations,” or that it had “shaky underpinnings.”¹⁸ Still others have attacked the disparate impact theory as a mandate for preferential treatment or “reverse discrimination” or an unwarranted attack on freedom of contract.¹⁹

Then, eighteen years after Griggs, the Supreme Court, composed of a different lineup of Justices, attempted to purge the theory from our civil rights laws in its “civil rights massacre” of 1989. The phrase describes a series of employment discrimination cases the Court decided over a short period of time in 1989 that effectively ended eighteen years of progress under the disparate impact theory. However, in the Civil Rights Act of 1991, Congress codified the disparate impact theory to return it to the status it had before the Court’s 1989 rulings.²⁰ Nevertheless, the Court has continued its judicial assault. For example, in Ricci v. DeStefano, decided on June 29, 2009, a divided Court held that the city of New Haven, Connecticut, engaged in “reverse discrimination” when it discarded the results of a firefighter’s promotional test that favored white and Hispanic test-takers because the city feared a potential disparate impact racial discrimination lawsuit by blacks who had either failed or received lower scores on the test. Ricci makes clear that the disparate impact theory, although codified by Congress in 1991, is still subject to debate and controversy and is far from being a dusty piece of civil rights history.

But how and why did Griggs happen? The history of the litigation campaign that led to Brown is widely known.²¹ However, even though we have a substantial body of literature on Griggs—written by legal scholars, political scientists, social scientists, political a...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Editor’s Preface
• List of Acronyms
• 1. Introduction
• 2. The Emergence of Title VII as a “Poor Enfeebled Thing”
• 3. LDF’s Enforcement Strategy
• 4. The Litigation Phase Begins
• 5. Quarles and the Present Effects Theory: A Prelude to Griggs
• 6. Griggs: The Factual Setting
• 7. Griggs in the District Court
• 8. In the Fourth Circuit: Judge Sobeloff’s Blueprint for the Disparate Impact Theory
• 9. Griggs in the Supreme Court
• 10. The Maturation of the Griggs Theory
• 11. Make Whole Remedies: Moody and Franks
• 12. Griggs and Affirmative Action: Weber and Johnson
• 13. The Death Knell for Griggs: The Court’s 1989 “Civil Rights Massacre”
• 14. The Resurrection of Griggs: The Civil Rights Act of 1991
• 15. Epilogue
• Notes
• Table of Cases
• Index