Employment Discrimination Claims Research Articles

Unions' role in intersectional age discrimination litigation cases

PurposeHow older workers pursue their employment discrimination claims is the focus of this study. This is part of the broader question of how older, unionized employees pursuing their statutory rights fare in litigation and how unions might organize and subsequently better protect older workers who have been discriminated against.Design/methodology/approachThis study is a random sample of 1889 litigated age discrimination cases in Federal courts using NVivo to conduct a content analysis on unionization, individual, organizational and legal variables.FindingsAn analysis of case characteristics and outcomes in cases filed under the Age Discrimination in Employment Act indicated that older unionized workers pursuing their claims are more likely to have rulings in their favor. Other demographic characteristics of the cases in which unionized workers prevailed include seniority, disability, filing under Title VII and cases involving retaliation.Research limitations/implicationsImportantly, empirical legal scholarship, using the case as the unit of analysis, will significantly add to the understanding of how age discrimination might be reduced through litigation. Empirical legal scholarship strategies would also suggest identifying labor tribunal or arbitration cases. Using content analysis would allow for a deep understanding at the micro level of the context that led to the charges of age (or other types) of discrimination.Practical implicationsThis study offers evidence that union representation can add value when older employees are pursuing their rights in litigation.Originality/valueThis research focuses on individuals who have actually been discriminated against using empirical legal scholarship, content analysis and big data analytics.

Bostock: A Clean Cut into the Gordian Knot of Causation

Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support. Judges and practitioners must take note of Bostock v. Clayton County, a stunning Supreme Court case that lays a new foundation to clear this causal confusion. In this Article, I argue that Bostock creates a new mixed-motive paradigm that, if correctly applied, should transform individual discrimination law in this country by allowing juries to hear more cases. Bostock explicitly recognizes what the social sciences have long known: decision-making in the workplace is often complex, and both discriminatory and innocent reasons may be “but-for” causes of an employer’s adverse action against an employee. Tort law labels these “multiple sufficient cause” cases. In the first work of its kind, I apply the causation standards in Bostock to create a taxonomy of causation scenarios that should guide lower courts in their analysis of individual discrimination cases at pre-trial stages. As Bostock borrows its causation standards from tort law, this Article examines the nuances of that discipline to determine the legitimacy of Bostock’s causation discussion. I conclude that while Bostock conforms to tort law, the riddle of causation persists in that and almost every discipline. Still, Bostock’s causation logic is sufficient to guide courts into the future on firm ground. In the first comprehensive work of its kind, this Article assists courts by applying Bostock at each stage of litigation through jury trials. Bostock can help revive the ideal of equal opportunity in employment. I conclude the paper with tandem principled suggestions. First, I posit that the Court or Congress could create a burden-shifting scheme in multiple sufficient cause cases. Second, such a burden shifting of proof would pave the way for an allocation of fault scheme, similar to that found in tort law, whereby the plaintiff would recover those damages that correlate to the employer’s percentage of discriminatory causation.

Working 9 to Non-Stop: The Fair Housing Act's Sexual Harassment Protections for Domestic, Agricultural, and Other Live-In Workers

Live-in workers, for whom their bosses are typically also their landlords, are often trapped in sexually harassing situations that feel as though they have no practical or legal redress, especially when the worker’s harasser can both fire and evict them in one fell swoop. This Note explores the novel possibility of using fair housing law, including the Fair Housing Act (“FHA”) and state/local fair housing statutes, as a tool to provide legal protections to workers with employer-provided housing (“live-in workers”) who experience sexual harassment or violence in the workplace. There is currently very little case law in which live-in workers have brought fair housing and employment discrimination claims simultaneously, and functionally no case law in which attorneys have brought both claims for live-in worker sexual harassment cases. This Note argues that, under existing fair housing law, many live-in workers should be eligible to bring claims under the FHA and equivalent state laws that prohibit discrimination in housing. As a result, the FHA and equivalent state claims can provide sexual harassment and assault protections for workers, including domestic workers and farmworkers, who may not receive protections under federal or state employment discrimination law. Furthermore, this Note argues that the FHA can provide supplemental or stronger protections from sexual harassment for live-in workers than traditional Title VII or employment discrimination claims. It accordingly suggests that plaintiffs facing harassment or sexual assault in live-in industries should pursue fair housing claims in addition to or in place of Title VII and employment discrimination claims, in order to achieve maximum protection and relief.

The Coming Causation Revolution in Employment Discrimination Litigation

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pre-trial, all too often based on a failure of causation. A key reason traces back to loose and misleading language — centered on a single word — in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” but-for cause. This language incorrectly implies that the discriminatory motive must be the sole cause — “the” cause — of the employer’s action, and though that standard is demonstrably wrong, many courts nevertheless have required a sole-cause showing. In 2020, the Supreme Court held in Bostock that gay and transgender workers are protected from employment discrimination. But it did more than that. The Court discussed but-for causation in broad terms, making it clear that but-for cause does not require proof of sole causation. That discussion will likely change how causation impacts not only gay and transgender workers but in employment discrimination litigation generally. This article explains why. It studies the root of the causation problem and shows its real-world consequences with extensive case law analysis. Then, it analyzes how Bostock’s broad causation language, properly interpreted, should apply to most employment discrimination claims and details why Bostock should remedy each of the identified causation issues. Based on its study of the post-Bostock litigation outcomes and the promise of Bostock’s broad application, the article predicts a revolution in employment discrimination litigation.

Compare This: How Employers Use Comparator Evidence to Defeat Employment Discrimination Claims

Employment discrimination statutes prohibit employers from discriminating against individuals on the basis of certain protected characteristics, such as race or sex. For intentional discrimination claims, plaintiffs often attempt to prove an employer’s discriminatory intent with comparator evidence attempting to show that the plaintiff was treated differently than a similarly situated individual outside the plaintiff’s protected class. Although plaintiffs often invoke comparator evidence to prove discriminatory intent, comparator evidence may also be helpful in disproving that alleged intent. This Article identifies the four primary ways employers use comparator evidence to defeat employment discrimination claims, and shows how courts have analyzed those defenses with a particular emphasis on recent decisions of the United States Courts of Appeal. From there, this Article presents a unique framework for defendants to employ in creating a defense to an employment discrimination claim involving comparator proof, one modeled from the theory of stasis from classical Greek and Roman rhetoric.

How Do Organizational Environments and Mandatory Arbitration Shape Employment Attorney Case Selection? Evidence from an Experimental Vignette

Using a novel experimental vignette design, this study shows how firm adoption of equal employment opportunity (EEO) policies, internal dispute resolution procedures, occupational segregation, and use of mandatory arbitration agreements affect employment attorney perceptions of employment discrimination claims. Findings reveal the organizational environment of a claim can signal compliance with antidiscrimination law and the use of mandatory arbitration reduces the expected value of a claim and willingness to accept it for representation. These findings contribute to the understanding of antidiscrimination law as a social system by showing organizational environments and mandatory arbitration clauses predict attorney case assessment.

Resolving Discrimination Complaints in Employment Arbitration: An Analysis of the Experience in the Securities Industry

This article empirically examines whether employment discrimination claims differ from other types of disputes resolved through arbitration. Whether arbitration is appropriate for resolving violations of anti-discrimination statutes at work is a focus of ongoing policy debates. Yet empirical scholarship has rarely considered whether different types of complaints might have distinct characteristics and receive varied outcomes in arbitration. The authors analyze all of the employment arbitration awards for cases filed between 1991 and 2006 in the financial services industry to determine whether differences in the type of allegation affect award outcomes. They also examine the effects of the financial industry’s decision in 1999 to introduce voluntary arbitration for discrimination claims. Results indicate that discrimination claims largely fared worse in arbitration than did other statutory or non-statutory claims but that arbitration systems are capable of meaningful self-reform.

Against "Academic Deference": How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine

When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an argument. Citing the importance of their freedom, defendants and sympathetic courts have asserted that courts should decline to invade higher education with federal court supervision. Whether or not courts cite the doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that faculty plaintiffs rarely prevail in civil rights cases. The bulk of the precedents are gender discrimination cases, which illustrates the extent to which the doctrine has been a significant barrier to the use of Title VII to redress the gender segregation that has proven so persistent in academia and various professions. This Article argues that courts should reject the entire idea of a special deference to employment decisions challenged as discriminatory. The legislative history shows that Congress did not intend any special deference for academia, and there is no need for it, because courts can and do look for discrimination in other similar fields of employment. In many ways, there is less justification for deferring to academic than other employers, both for policy reasons (because of the importance of diversity in education) and doctrinal reasons (because of academic employers' tendency to defend denials of tenure with little evidence other than self-interested testimony as to entirely subjective reasons). Courts' frequent refusals to scrutinize academic employment decisions for discrimination risks leaving continued gender segregation and inequality in a large and important sector of both the labor market and our educational system. This risk of unredressed inequities is particularly troubling because academia is the sort of labor market in which social norms are unlikely to be effective at preventing discrimination. Social norms can be powerful protectors of fairness in other contexts, sometimes obviating the need for formal, legal protections. Yet academia has many characteristics making it the sort of labor markets in which social norms are likely to be weaker, unable to prevent misdeeds such as discriminatory employment decisions. While the doctrine has drawn criticism for quite some time, this Article adds an additional voice to the chorus by analyzing various unrelated strands of employment discrimination case law, mostly of recent vintage, that severely undercut the doctrine as a basis for granting employers summary judgment or judgment as a matter of law (JMOL) - the procedural devices that doom most academic plaintiffs' claims. Specifically, courts have stressed that, under the leading recent Supreme Court precedent on proof of employment discrimination, summary judgment and JMOL are inappropriate where employers' defenses are vague and subjective or where employers' defenses rely too heavily on the testimony of interested parties. Thus, even if the notion of academic deference once had merit, it is in increasing tension with other, more firmly grounded employment discrimination principles. This Article also argues that even to the extent that courts accept the doctrine of academic deference, the rationale for such deference is limited to the context of promotion-to-tenure. Accordingly, courts applying the doctrine to failure-to-hire cases are applying precedent sloppily, extending a doctrine beyond its original rationale. In short, the penchant of many courts to dismiss employment discrimination claims based on is misguided in a host of ways. It threatens to leave academia an island of civil rights lawlessness, essentially exempt from Title VII - a dangerous outcome for a society in which there is such gender inequity in academia and such a consensus that equal educational opportunity is the path to social progress and personal success.

Attention Deficit Disorder and the Americans With Disabilities Act: Is Anyone Paying Attention?

As millions of individuals who have been given a diagnosis of attention deficit disorder and attention-deficit/hyperactivity disorder enter the workforce, more individuals with these mental impairments are filing claims with the Equal Employment Opportunity Commission under the Americans with Disabilities Act (ADA) as amended in 2008 by the ADA Amendments Act. The ADA forbids employment discrimination based on an individual's disability and also requires employers to make reasonable accommodations for individuals with disabilities. Health care managers must be well prepared with knowledge of the employers' rights and responsibilities under the law. By exploring the legal challenges being made to employers' policies and practices and examining how the courts are resolving those disputes, managers can reduce the risk of expensive, time-consuming litigation caused by employment discrimination claims based on disability.

Claims of employment discrimination and worker voice

AbstractUsing the U.S. National Study of the Changing Workforce survey, we show that claims of racial and gender discrimination emerge less frequently in workplaces with established worker voice mechanisms. This result accords with the hypothesis that participation enhances perceptions of workplace fairness. We show that while having a supervisor of the same race or gender is associated with reduced discrimination claims, the role of voice tends to be larger when the race or gender of the supervisor is different from that of the worker. This suggests that voice may be particularly important in heterogeneous workplaces.

American Gavel Across Borders: An Empirical Study of U.S. District Court Cases on Extraterritorial Exercise of Civil Jurisdiction

U.S. districts courts have been increasingly faced with international cases that involve foreign litigants and foreign conduct. Despite an abundance of doctrinal analyses on the U.S. Supreme Court’s decisions involving extraterritorial civil jurisdiction, there are abysmally few empirical studies that look at the patterns of decision-making in lower federal courts. This research attempts to fill the gap and examines 228 decisions dealing with extraterritoriality rendered from 2000 to 2015. At the outset, our findings reject the common narrative in legal scholarship that U.S. courts over-extend their jurisdiction abroad and engage in legal imperialism. Despite the overall increase in the number of extraterritorial cases, courts assert jurisdiction in only 43% of them. We examine several factors that might explain the outcomes in these cases and find strong evidence that claims involving conduct that took place in developed countries have a higher likelihood of being dismissed on jurisdictional grounds than those in developing countries. We also find that, similar to the overall domestic litigation trends, individual plaintiffs face lower likelihood of having their claims survive the jurisdictional challenge than corporate plaintiffs. We find weak or no evidence of difference in the outcomes between economic claims, such as for example securities or antitrust claims, and non-economic claims that include extraterritorial tort, environmental and employment discrimination claims. Similarly, we do not find statistically significant effect of comity and foreign policy arguments on the outcomes.

Differences in the nature of employment discrimination litigation between private sector organizations and public sector organizations

This study reports on the results of a content analysis of federal court cases examining employment discrimination litigation in private, federal, and state/local sector organizations. One objective was to determine whether there are differences in the types of employment discrimination claims (e.g. race, sex, age, and disability) across the different sectors. A second objective was to determine whether there are differences in the outcomes (whether the case outcome or ruling was for the plaintiff or the defendant) of the different types of employment discrimination cases across the different sectors. The results of this study indicate that there are substantial differences in both the types of discrimination charges and the outcomes of those discrimination charges across the different sectors. The implications of the most significant findings are discussed, and recommendations are offered to organizations interested in reducing the occurrence of employment discrimination and the costs associated with employment discrimination litigation.

Juarez v. Northwestern Mut. Life Ins. Co.: Can DACA Recipients Make a Claim for Alienage-Based Employment Discrimination Under 42 U.S.C. 1981?

Until recently, undocumented immigrants facing employment discrimination on the grounds of immigration status were somewhat foreclosed from bringing alienage-based employment discrimination claims. This analysis has become more complex with executive programs such as Deferred Action for Childhood Arrivals (“DACA”). Otherwise deportable, individuals under the DACA status are granted an authorized period of stay and permitted to accept employment. With alienage claims excluded under the national origin ground of Title VII, Section 1981 may be a new avenue for certain non-citizens who experience employment discrimination on the basis of immigration status. As such, this Article seeks to determine whether 42 U.S.C. §1981 is a viable path for bringing alienage employment discrimination claims, especially for immigrants who are deemed lawfully present under a prosecutorial discretionary program such as DACA. First, Section I summarizes the current possibilities available to undocumented and documented immigrants advancing alienage employment discrimination claims. Then Section II examines Juarez v. Northwestern Mut. Life Ins. Co., a recent alienage discrimination case brought by a DACA recipient. Drawing from the analysis and the holding in Juarez, Section III concludes by determining whether 42 U.S.C. §1981 is a viable litigation pathway for alienage discrimination claims. Finally, Section III makes predictions surrounding the impact of Juarez on future alienage-based employment discrimination claims.

The impact of recent employment-discrimination decisions

Purpose – The purpose of this paper is to inform small business owners about recent Supreme Court rulings interpreting Title VII of the Civil Rights Act. Design/methodology/approach – A review of recent Supreme Court rulings. Findings – Recent Supreme Court rulings have increased the plaintiff’s burden of proof in employment-discrimination cases in the USA. Practical implications – Assuming that Congress does not legislatively overrule these decisions, business owners (including small business owners) should find it easier to shield themselves from employment-discrimination claims. However, this change should not be considered license to be less vigilant when it comes to preventing employment discrimination. Originality/value – While there have been numerous reports on this law in the legal community, the primary audience for this piece is the business owner. The author’s goal is to provide a combination of background information and practical advice, making this valuable to business owners who are not versed in the law.

Rightful Discharge: Making "Termination" Mean It Is Really Over: Part 1-Issues and Legislation.

One of the most difficult undertakings for any employer is carrying out a decision to terminate an employee. Of all the employment-related actions taken by employers, the act of termination creates the greatest risk of legal liability. Many claims of employment discrimination filed with the Equal Employment Opportunity Commission arise from the act of termination. In many federal courts, employment-related lawsuits account for more than 50% of all court filings; these lawsuits cover a wide range of subjects, such as failure to hire, defamation, breach of contract, and harassment, to name a few. However, most employees sue because they have lost their job or fear they will lose their job. Because these individuals have virtually nothing to lose, they often see filing a claim with the Equal Employment Opportunity Commission or filing a lawsuit as the only viable option-often suing for wrongful discharge. With a thoughtful review of the issues and the legislation addressed in this article, health care managers can reduce the unnecessary risk of expensive, time-consuming litigation.

How Discrimination Against Ethnic and Religious Minorities Contributes to the Underutilization of Immigrants’ Skills

The underutilization of immigrants’ skills, particularly the skills of ethnic and religious minorities, is of considerable concern to policy makers because of its economic and social costs. Recent research suggests that discrimination may be contributing to this well-documented unemployment and underemployment of skilled minority immigrants. In particular, the ambiguity of immigrants’ foreign-acquired skills and personal characteristics may provide a cover for the expression of bias toward immigrants who are religious and ethnic minorities. Experiments controlling for all other variables show that discrimination may influence both the hiring of minority immigrants and reactions to claims of employment discrimination by minority immigrants. Also, factors that reduce the ambiguity of minority immigrants’ credentials and factors that suppress the expression of bias reduce these effects. These findings point to policy interventions that have the potential to improve the labor-market outcomes of skilled immigrants and contribute to host nations’ economic and social outlooks. Interventions should focus not only on skilled minority immigrants and reducing the ambiguity of their credentials and skills but also on members of the host society and their motivation to control prejudiced reactions to minorities.

Discrimination Statutes, the Common Law, and Proximate Cause

The Supreme Court recently interpreted causal language in the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include the common-law concept of proximate cause. This Article anticipates that courts will incorporate proximate cause more broadly into the primary federal discrimination statutes and argues that courts should not interpret the statutes in this way. The Article demonstrates the theoretical and practical difficulties of importing proximate cause principles into employment discrimination law. The Article demonstrates how only weak textual, intent, or purpose-based arguments support courts’ use of proximate cause in Title VII. Many of these arguments are premised on the idea that the federal discrimination statutes are torts. This Article challenges this assumption and argues that describing a cause of action as a tort does not provide any meaningful guidance about whether to import proximate cause. Proximate cause is a notoriously flexible and theoretically inconsistent concept. Proximate cause has no independent descriptive power and is highly dependent on the underlying tort to which it is attached. Employment discrimination claims do not fit within any traditional tort and therefore do not align well with traditional articulations of proximate cause. When courts import proximate cause, they are not simply importing a concept from the common law, but rather are engaging in an unguided policy choice—a choice that will allow courts to further limit the reach of federal discrimination law. Importantly, the federal discrimination statutes already contain express limits on liability that

Red vs. Blue States: Cases of Employment Discrimination Influenced by Geography?

Normal 0 false false false EN-US X-NONE X-NONE The seemingly increasing political divide in the United States between Democrats and Republicans has often resulted in both parties working to advance their ideology rather than forge a consensus with the other side. This polarization can often be seen in the geography of the nation which can characterize most of the states as either solidly “red” (Republican/conservative) or “blue” (Democratic/liberal). With federal judges appointed by the President and confirmed by members of Congress, one wonders if these politically appointed judges reflect in their rulings the ideology of those who appointed/confirmed them and/or if the “color” of the state in which they preside has any bearing on the number of cases brought before them. In a random sample of federal employment discrimination cases (n=657), this study sought to examine the influence of geographic location and the political ideology/leanings of states may have on both the frequency and outcomes of employment discrimination claims. The results revealed noteworthy and significant differences between states in both the frequency (more or less cases than would be expected to be filed based on relative population size) and degree of plaintiff success/failure in such cases. As a result of these findings, implications are advanced for employees and employers as a consequence of these geographic and political differences. /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Calibri,sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Times New Roman; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}

Relational Power, Legitimation, and Pregnancy Discrimination

Pregnancy-based employment discrimination has long been a topic of interest for gender inequality scholars and civil rights agencies. Prior work suggests that employer stereotypes and financial interests leave pregnant women vulnerable to being fired. We still know little, however, about women’s interpretations of their terminations and how employers justify such decisions in the face of arguably protective laws. This article provides much needed, in-depth analyses of such dynamics and a relational account of pregnancy-based employment discrimination claims. Elaborating on theoretical expositions of power and research surrounding the patriarchal character of organizational life, we draw on unique quantitative and qualitative data from verified cases of pregnancy-based firing discrimination. Our analyses reveal a two-pronged legitimation process where employers symbolically vilified pregnant workers while simultaneously amplifying ostensibly meritocratic organizational procedures and concerns. Pregnancy discrimination plaintiffs attempted to counter employer arguments. Yet, their limited power within the organizational hierarchy along with the culturally resonant nature of employer logics—logics that seem gender-neutral but that reify gendered assumptions and prioritize business profit—place pregnant women at a considerable disadvantage. Without attending to such cultural and structural power imbalances and the relational processes that undergird them, pregnancy discrimination will remain a significant problem.

How Griggs Came To Be

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...