Litigating personnel measurement policy

Abstract

Future historians of this nation's struggle to achieve civil rights by prohibiting employment discrimination will undoubtedly view the years 1964, 1971, and 1988 as the significant milestones for understanding Title VII of the Civil Rights Act of 1964. In 1964, Congress defined employment discrimination in terms of evil intent known as the “disparate treatment” definition of discrimination. Disparate treatment falls within the commonly understood meaning of what it means “to discriminate”—intentionally to treat an individual differently on account of that individual's race, color, religion, sex, or national origin. Between 1964 and 1971, however, the civil rights bar was successful in redefining employment discrimination in terms of effects known as the “disparate impact” definition of discrimination. The disparate impact definition of discrimination was given apparent legitimacy by the fact that typically, objective employment standards fall more harshly on one group than another. In 1971, the unanimous Supreme Court decision in Griggs v. Duke Power Co. had the effect of codifying the disparate impact definition of discrimination. Griggs read into Title VII concerns with the rights of groups in terms of adverse impact above and beyond defining equal opportunity in terms of individual merit discussed throughout the legislative history and clearly and unambiguously defined in the language of Title VII. For the 17 years following Griggs, employers learned to avoid the prima facie presumption of discrimination based on group determined adverse impact statistics by granting preferential treatment in one form or another to members of groups and trying to rationalize such actions within the meaning of what it meant “to discriminate.” In the years since Griggs, group oriented “goals and timetables” have become a growth industry as a result of the civil right's bar's success with the adverse impact oriented “numbers game.” The consequence of the plaintiffs' bar's successful advocacy frequently resulted in employers abandoning objective employment standards altogether or necessarily having to consider the individual's membership in one or more so-called “protected” groups—the very practice that Title VII sought to prohibit. The high water mark of the “numbers game” will likely be viewed in the future in terms of the 1988 Supreme Court decision in Watson v. Fort Worth Bank and Trust. A plurality of the Watson Court expressed its willingness to “reconsider” the Griggs reliance on statistical adverse impact arguments—thus permitting employers' use of objective employment standards to improve productivity without the certainty of litigation. The promise of Watson is that by returning to objective employment standards, employers will come to refocus on individual merit as the touchstone of equal employment opportunity.