Griggs v. Duke Power Co. and Racial Discrimination in Employment: Impact vs. Purpose, Lecture notes of Law

Download Griggs v. Duke Power Co. and Racial Discrimination in Employment: Impact vs. Purpose and more Lecture notes Law in PDF only on Docsity! "[W]e have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory ... simply because a greater proportion of Negroes fails to qualify than members of other racial or ethnic groups." WASHINGTON v. DAVIS 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). In 1971 Griggs v. Duke Power Co. interpreted Title VII of the Civil Rights Act of 1964, aimed at banning racial discrimination in employment in businesses involved in "commerce among the several states." The Duke Power Co., which had previously limited its most desirable jobs to whites, set up educational achievements and high scores on intelligence tests as prerequisites for those jobs. Few blacks qualified and a group of them claimed the "prerequisites" were discriminatory. The Court agreed, holding that the "prerequisites" were not related to the actual jobs. At about the same time, several blacks filed suit in the District of Columbia, attacking the constitutionality under the Fifth Amendment as well as the legality under civil rights statutes of the hiring practices for police in the District. To be accepted for the police training program, an applicant had to receive a grade of at least 40 out of 80 on "Test 21," an examination used throughout the federal civil service to gauge verbal ability, reading, and comprehension. Plaintiffs claimed that Test 21 excluded a far larger proportion of blacks than whites and bore no relationship to job performance and asked for a summary judgment on the constitutional issue. The district court found the test was a valid instrument, but the court of appeals reversed. The District of Columbia sought and obtained certiorari. Mr. Justice WHITE delivered the opinion of the Court.... The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. Bolling v. Sharpe (1954). But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.... The school desegregation cases have also adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.... The essential element of de jure segregation is "a current condition of segregation resulting from intentional state action." Keyes v. School Dist. No. 1 (1973). "The differentiating factor between de jure segregation and so-called de facto segregation ... is purpose or intent to segregate." ... This is not to say that the necessary discriminatory racial purpose must be express or appear on the face of the statute, or that a law's disproportionate impact is irrelevant.... A statute, otherwise neutral on its face, must not be applied so as invidiously to discriminate on the basis of race. Yick Wo v. Hopkins (1886). It is also clear from the cases dealing with racial discrimination in the selection of juries that the systematic exclusion of Negroes is itself such an "unequal application of the law ... as to show intentional discrimination." Akins v. Texas [1945].... Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact ... may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule, McLaughlin v. Florida (1964), that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. There are some indications to the contrary in our cases. In Palmer v. Thompson (1971), ... [t]he opinion warned against grounding decision on legislative purpose or motivation, thereby lending support for the proposition that the operative effect of the law rather than its purpose is the paramount factor. But the holding of the case was that the legitimate purposes of the ordinance– to preserve peace and avoid deficitswere not open to impeachment by evidence that the councilmen were actually motivated by racial considerations. Whatever dicta the opinion may contain, the decision did not involve, much less invalidate, a statute or ordinance having neutral purposes but disproportionate racial consequences. Wright v. Council of City of Emporia (1972) also indicates that in proper circumstances, the racial impact of a law, rather than its discriminatory purpose, is the critical factor.... That neither Palmer nor Wright was understood to have changed the prevailing rule is apparent from Keyes, where the principal issue in litigation was whether and to what extent there had been purposeful discrimination resulting in a partially or wholly segregated school system. Nor did other later cases indicate that either Palmer or Wright had worked a fundamental change in equal protection law.... As an initial matter, we have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory and denies "any person ... equal protection of the laws" simply because a greater proportion of Negroes fails to qualify than members of other racial or ethnic groups. Had respondents, along with all others who had failed Test 21, whether white or black, brought an action claiming that the test denied each of them equal protection of the laws as compared with those who had passed with high enough scores to qualify them as police recruits, it is most unlikely that their challenge would have been sustained. Test 21, which is administered generally to prospective Government employees, concededly seeks to ascertain whether those who take it have acquired a particular Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting [on statutory grounds].... Editors' Notes (1) Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) held that a real estate developer who had been denied a zoning permit to build integrated low and moderate cost housing in a suburb of Chicago had failed to show the denial was caused by a racially discriminatory purpose. " 'Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination,' " Justice Powell said for the majority, quoting from Washington v. Davis. "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." But, he added, "Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one." Powell then offered a summary sketch of some of the factors at which a court should look to determine whether "racially discriminatory intent existed": Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action– whether it "bears more heavily on one race than another," Washington v. Davis [1976]– may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins (1886); Guinn v. United States (1915); Lane v. Wilson (1939); Gomillion v. Lightfoot (1960). The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence. The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. See Lane v. Wilson [1939]; Griffin v. School Board [1964]; Schnell v. Davis (1949); cf. Keyes v. School Dist. No. 1, Denver, Colo. [1973]. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes. Reitman v. Mulkey (1967); Grosjean v. American Press Co. (1936). For example, if the property involved here always had been zoned R5 but suddenly was changed to R3 when the town learned of MHDC's plans to erect integrated housing, we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached. The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege. See Tenney v. Brandhove (1951); United States v. Nixon (1974); 8 J. Wigmore, Evidence § 2371 (McNaughton rev. ed. 1961). (2) White in Davis and Powell in Arlington Heights seem to equate "purpose" and "intent" and at times even "motive" with the other two. Would it improve doctrinal analysis to distinguish among these three concepts? (3) For an analysis of Davis, see Barbara Lerner, "Washington v. Davis: Quantity, Quality, and Equality in Employment Testing," 1976 Sup.Ct.Rev. 263. – – –