How Griggs Came To Be

Abstract

How Griggs Came To Be ROBERT BELTON (AS EDITED BY STEPHEN L. WASBY) Editor’s Note: The history of Griggs v. Duke Power Co. (1971) and of the theory of disparate impact was told by the late Robert Belton in his book, The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story, which Professor Stephen L. Wasby prepared for publication after Professor Belton’s death in 2012. Material drawn from that book, published in 2014, is presented in this article, with a brief introduction and conclusion by Professor Wasby. Material reprinted with permission from the University Press of Kansas. Introduction, by Stephen L. Wasby In 1971, the Supreme Court decided the first major case on the substance ofTitle VII of the Civil Rights Act of 1964, Griggs v. Duke Power Co) As President Nixon’s appointee Warren Burger had replaced Earl Warren as Chief Justice and Burger’s friend Harry Blackmun had alsojoined the Court, observers had expected a withdrawal from the rulings supportive of civil rights complainants. They had not expected a ruling strongly supporting African-Americans’ claims of employment discrimination. Indeed, there was still a question as to what “discrimination” was precluded by the Civil Rights Act. Many thought that only direct, intentional discrimi­ nation—what has come to be called disparate treatment—was all that was barred. However, with the passage of Title VII, employers ceased blatant discrimination of the “no Irish need apply” or “no Negroes except in the labor pool” variety. Instead they adopted employ­ ment tests and requirements that were racially (or gender) neutral on their face but which had a disproportionately negative impact on racial minorities and women: that is, these actions had a disparate impact on racial minorities. Griggs is so significant because the Supreme Court went beyond disparate treatment to rule that, under Title VII, employers could not engage in actions that had a disparate impact on racial minorities. The theory of disparate impact adopted in Griggs has now had a history of more than forty years, with some Supreme Court rulings eroding the theory and with Congress enacting the Civil Rights Act of 1991 to restore the theory’s strength. Yet before that history took place, there had to be Griggs. The case was no accident. It was part of a planned litigation campaign against 426 JOURNAL OF SUPREME COURT HISTORY employment discrimination undertaken by the NAACP Legal Defense and Educational Fund (LDF). The story ofhow Griggs came to be is worth telling, and Robert Belton, who played a major role in the litigation of the case, tells it here. Griggs: The Factual Setting, by Robert Belton Griggs v. Duke Power Co. arose against the background of decades of widespread overt racial discrimination against AfricanAmericans in the South in all facets of public and private activities: employment, educa­ tion, places of public accommodation, trans­ portation, and voting. Griggs involved the legality of racially neutral educational and testing practices. In 1990, it was reported that, for more than 100 years, employers had been requiring more and more education of applicants for an increasing number of jobs.2 And a 1963 study, published the year before the enactment of Title VII, reported that although the evidence was fragmentary, it was fairly clear that a large number of industrial firms in the United States used standardized tests in selecting, promoting, and transferring personnel.3 The Griggs case arose in context of the reality of the difficulty of effective enforce­ ment ofTitle VII based solely on the disparate treatment theory, which requires proof of intent to discriminate The NAACP Legal Defense Fund’s litigation team which focused on employment discrimination cases was also concerned about trying disparate treatment cases before all-whitejuries. That team, along with the Equal Employment Opportunities Commission (EEOC) and law professors, struggled to articulate a theory of discrimina­ tion that was not based solely on discrimina­ tory intent and to find a remedy that would substantially expand the employment oppor­ tunities of African Americans. The employer in Griggs, Duke Power Company, was a public utility corporation that was engaged in the generation, transmis­ sion, distribution, and sale ofelectric power to the general public in North Carolina and...