Griggs v. Duke Power Co.: Discrimination & Title VII of Civil Rights Act, Lecture notes of History

Download Griggs v. Duke Power Co.: Discrimination & Title VII of Civil Rights Act and more Lecture notes History in PDF only on Docsity! OCTOBER TERM, 1970 Syllabus 401 U. S. GRIGGS ET AL. V. DUKE POWER CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 124. Argued December 14, 1970-Decided March 8, 1971 Negro employees at respondent's generating plant brought this action, pursuant to Title VII of the Civil Rights Act of 1964, challenging respondent's requirement of a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant. These requirements were not directed at or intended to measure ability to learn to perform a particular job or category of jobs. While § 703 (a) of the Act makes it an un- lawful employment practice for an employer to limit, segregate, -or classify employees to deprive them of emjloyment opportunities or adversely to affect their status because of race, color, religion, sex, or national origin, § 703 (h) authorizes the use of any pro- fessionally developed 'ability test, provided that it is not designed, intended, or used to discriminate. The District Court found that respondent's former policy of racial discrimination had ended, and that Title VII, being prospective only, did not reach the prior inequities. The Court of Appeals reversed in part, rejecting the holding that residual discrimination arising from prior practices was insulated from remedial action, but agreed with the lower court that there was no showing of discriminatory purpose in the adop- tion of the diploma and test requirements. It held that, absent such fliscriminatory purpose, use of the requirements was permit- ted, and rejected the claim that because a disproportionate number of Negroes was rendered ineligible for promotion, transfer, or employment, the requirdments were unlawful unless shown to be job related. Held: 1. The Act requires the elimination of artificial, -arbitrary, and unnecessary barriers to, employment 'that, operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates -to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employers lack of discriminatory intent. Pp. 429-433. 2. The Act does not preclude the use of testing or nmeasuring procedures, but it does proscribe giving them controlling force un- GRIGGS v. DUKE POWER CO. 424 Opinion of the Court less they are demonstrably a reasonable measure of job perform- ance. Pp. 433-436. 420 F. 2d 1225, reversed in part. BURGER, C. J., delivered the opinion of the Courtr in which all members joined except BRENNAN, J., who took no part in the con- sideration or decision of the case. Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Norman C. Amaker, William L. Robinson, Conrad 0. Pearson, Julius LeVonne Chambers, and Albert J. Rosenthal. George W. Ferguson, Jr., argued the cause for respond- ent. With him on the brief were William L Ward, Jr., and George M. Thorpe. Lawrence M. Cohen argued the cause for the Chamber of Commerce of the United States as amicus curiae urging affirmance. With him on the brief were Francis V. Lowden, Jr., Gerard C. Smetana, and Milton A. Smith. Briefs of amid curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Leonard, Deputy Solicitor General Wallace, David L. Rose, Stanley Hebert, and-Russell Specter for the United States; by Louis J. Lefkowitz, Attorney General, pro se,. Samuel A. Hirshowitz, First Assistant Attorney- General, and George D. Zuckerman and Dominick J. Tuminaro, Assistant Attorneys General, for the Attorney General of the State of New York; and by Bernard Kleiman, Elliot Bredhoif, Michael H. Gottesman, jand George H. -Cohen for the United Steelworkers of America, AFL-CIO. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ in this case to resolve the question whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school edu- OCTOBER TERM, 1970 Opinion of the Court 401 U. S. tude tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable de- partments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. In September 1965 the Company be- gan to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an "inside" job by passing two tests- the Wonderlic Personnel Test, which purports- to measure general intelligence, and the Bennett Mechanical Com- prehension Test. Neither was directed or interded to measure the ability to learn to' perform a particular job or'category of jobs. The requisite scores used for both initial hiring and transfer approximated the national median for high school graduates.3 The District Court had found that while the Company previously followed a policy of overt racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only and, consequently, the impact of prior inequities was beyond the reach of cor- rective action authorized by the Act. The Court of Appeals was confronted with a question of first impression, as are we, concerning the meaning of Title VII. After careful analysis a majority of that court 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 require- ments. On this basis, the Court of Appeals concluded' there was no violation of the Act. 3 The test standards are thus more stringent than the high school requirement, since they would screen out approximately half of all high school graduates. GRIGGS v. DUKE POWER CO 424 Opinion of the Court The Court of Appeals reversed the District Court in .'part, rejecting the holding that residual discrimination arising from prior employment practices was insulated from remedial action.4 The Court of Appeals noted,I. however, that the District Court was correct .in its ,con- elusion that there was no showing of a racial-purpose or invidious intent in the adoption of the high school di- ploma requirement or general intelligence test and that these standards had been applied fairly to whites and Negroes alike. It held that, in the absence of a discrim- inatory purpose, use of such requirements was permitted by the Act. In so doing, the Court of Appeals rejected the claim that because these two requirements operated to render ineligible a markedly disproportionate number of Negroes, they were unlawful under Title VII unless shown to be job related.' We granted the writ on these claims. 399 U. S. 926. The objective of Congress in the enactment df Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and re- The Court of Appeals ruled that Negroes employed in the tnor Department at a time when there was no high school' or test require- ment for entrance into the higher paying departments could -not now be made subject to those requirements, since whites hired -eon- temporAneously into those departments were never subject *to tnem. The Court of Appeals also required that the seniority rights of those" Negroes be measured on a plantwide, rather than a departmental, basis. However, .the Court of Appeals denied relief .to, the Negro employees without a high school education or its equivaleni who were hired into the Labor Department after institution of th' educational requirement. 5One member of that court disagreed wi-h this aspect 6 tfhe decision, maintaining, as do the petitioners in this Court, that Title VII prohibits the use of employment criteria that operate in a racially exclusionary fashion and do not measure skills or abilities necessary to performance of the jobs for which those criteria are used. OCTOBER TERM, 1970 Opinion of the Court 401 U. S. move barriers that have operated in the past to favor an identifiable group of white employees over other em- ployees. 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. The Court of Appeals' opinion, and the partial dissent, agreed that, on the record in the present case, "whites register far better on the Company's alternative require- ments" than Negroes.' 420 F. 2d 1225, 1239 n. 6. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articu- lation to manifest itself fairly in a testing process. Be- cause they are Negroes,. petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences in Gaston County v. United States, 395 U. S. 285 (1969). There, because of the inferior education re6eived by Negroes in North Carolina, this Court barred the institution of\ a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend -by Title VII, however, to guarantee a job to every person regardless of qualifi- cations. In short, the Act does not comnland that any 6 In North Carolina, 1960 census statistics show that, while 34% of white males had completed high school, only 12% of Negro males had done so. U. S. Bureau of the Census, U. S. Census of Popula- tion: 1960, Vol. 1, Characteristics of the Population, pt. 35, Table 47. Similarly, with respect to standardized tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the blacks. Decision of EEOC, CCH Empl. Prac. Guide, 17,304.53 (Dec. 2, 1966). See also Decision of EEOC 70-552, CCH Empl. Prac. Guide,'[ 6139 (Feb. 19, 1970). GRIGGS v. DUKE POWER CO. 424 Opinion of th6 Court The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees 'as'fixed measures-of capa- bility. History is filldd with examples of men and women who rendered highly effective-performance without the conventional badges of accomplishment in terms of cer- tificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the com- monsense proposition that they are not to become masters of reality. 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 Dr used to discriminate because of race ... " - (Empha- sis added.) The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting § 703 (h) to permit only the use of job- related tests.' The administrative interpretation of the 8 Section 703 (h) applies only to' tests. It has no applicability to the high school diploma requirement. 11 EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: "The Commision accordingly interprets 'professionally developed ability test' to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the. applicant seeks, or which fairly affords the employer a" chance to measure the applicant's ability to perform'a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning Qf Title VII." The EEOC position has been elaborated in the new Guidelines on Employee Selection Procedures, 29 CFR § 1607, 35 Fed. Reg. 12333 (Aug. 1, 1970). These guidelines demand that employers using tests have available "data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Id., at§ 1607A (c). OCTOBER TERM, 1970 Opinion of the Court 401 U. S. Act by the enforcing agency is entitled to great deference. See, e. g., United States v. City of Chicago, 400 U. S. 8 (1970); Udall v. Tallman, 380 U. S. 1 (1965); Power Reactor Co. v. Electricians, 367 U. S. 396 (1961). Since the Act and its legislative history support the Commis- sion's construction, this affords good reason to treat the guidelines as expressing the will of Congress. Section 703 (h) was not contained in the House ver- sion of the Civil Rights Act but was added in the Senate during extended debate. For a period, debate revolved around claims that the bill as proposed would prohibit all testing and force employers to hire unqualified per- sons simply because they were part of a group formerly subject to job discrimination."0 Proponents of Title VII sought throughout the debate to assure the critics that the Act would have no effect on job-related tests. Sen- ators Case of New Jersey and" Clark of Pennsylvania, comanagers of the bill on the Senate floor, 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." 110 Cong. Rec. 7247.11 (Emphasis add-d.) Despite 10 The congressional discussion was prompted by the decision of a hearing examiner for the Illinois Fair Employment Commission in Myart v. Motorola Co. (The decision is reprinted at 110 Cong. Rec. 5662.) That case suggested that standardized tests on which whites performed better than Negroes could never .be used. The decision was taken to. mean that such tests could fiever be justi- fied even if the needs of the business required them. A number of Senators feared that Title VII might produce a similar result. See remarks of Senators. Ervin, 110 Cong. Rec. 5614-5616; Smathers, id., at 5999-6000; Holland, id., at 7012-7013; Hill, id., at 447; Tower, -id., at 9024; Talmadge, id., at 9025-9026; Fulbright, id, at 9599-9600; and Ellender, id., at 9600. " The Court of Appeals majority, in finding no requirement in Title VII that employment tests be job relatMd, relied in part on a GRIGGS v. DUKE POWER CO. 424 Opinion of the Court these assurances, Senator Tower of Texas intr6duced an amendment authorizing "professionally developed ability tests." Proponents of Title VII opposed the amendment because, as written, 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 ac- tually exist under the guise of compliance with the stat- ute." 110 Cong. Rec. 13504 (remarks of Sen. Case). The amendment was defeated and two days later Sen-, ator Tower offered a substitute amendment which was adopted verbatim and is now the testing provision of § 703 (h). Speaking for the supporters of Title VII, Sen- ator Humphrey, who had vigordusly opposed the first amendment, endorsed the substitute amendment, stating: "Senators on both sides of the aisle who were deeply interested in title VII have examined the text of this quotation from an earlier Clark-Case interpretative memorandum addressed to the question of the constitutionality of Title VII. The Senators said in that memorandum: "There is no requirement in title VII that employers abandon bona fide qualification tests where, because of differences, in back- ground and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to deter- mine which- applicants have these qualifications, and he may hire, assign, and promote on the basis of test-performance." 110 Cong. Rec. 7213. However, nothing there stated conflicts with the later memorandum dealing specifically with the debate over employer testing, 110 Cong. Ree. 7247 (quoted from in the text above), in which Senators Clark and Case explained that tests which measure "applicable job qualificatiiins" are permissible under Title VII. In the earlier mem- orandum Clark and Case assured the Senate that employers were not to be prohibited from using tests that determine qualifications. Certainly a reasonable interpretation of what the Senators meant, in light of the subsequent memorandum directed specifically at employer testing, was that nothing in the Act prevents employers from requiring that applicants be fit for the job:.