''Griggs v. Duke Power Co.'', 401 U.S. 424 (1971), was a court case argued before the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

on December 14, 1970. It concerned

employment discrimination Employment discrimination is a form of illegal discrimination in the workplace based on legally protected characteristics. In the U.S., federal anti-discrimination law prohibits discrimination by employers against employees based on age, race, g ...

and the disparate impact theory, and was decided on March 8, 1971. It is generally considered the first case of its type. The Supreme Court ruled that the company's employment requirements did not pertain to applicants' ability to perform the job, and so were unintentionally discriminating against

black Black is a color which results from the absence or complete absorption of visible light. It is an achromatic color, without hue, like white and grey. It is often used symbolically or figuratively to represent darkness. Black and white have o ...

employees. The judgment famously held that "

Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...

has now provided that tests or criteria for employment or promotion may not provide

equality of opportunity Equal opportunity is a state of fairness in which individuals are treated similarly, unhampered by artificial barriers, prejudices, or preferences, except when particular distinctions can be explicitly justified. The intent is that the important ...

merely in the sense of the fabled offer of milk to the stork and the fox."

Facts

In the 1950s

Duke Power Duke Energy Corporation is an American electric power and natural gas holding company headquartered in Charlotte, North Carolina. Overview Based in Charlotte, North Carolina, Duke Energy owns 58,200 megawatts of base-load and peak generation in ...

Dan River Steam Station The Dan River Steam Station is a power plant in Eden, North Carolina, owned by Duke Energy. The plant comprises three natural gas-fueled combustion turbines, which began operation in 1968.), and two natural gas-fueled combined cycle turbines ar ...

North Carolina North Carolina () is a state in the Southeastern region of the United States. The state is the 28th largest and 9th-most populous of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, Georgia and So ...

had a policy restricting

employees to its "Labor" department, where the highest-paying position paid less than the lowest-paying position in the four other departments. In 1955 the company added the requirement of a

high school diploma A high school diploma or high school degree is a North American academic school leaving qualification awarded upon high school graduation. The high school diploma is typically obtained after a course of study lasting four years, from grade 9 to gra ...

for employment in any department other than Labor, and offered to pay two-thirds of the high-school training tuition for employees without a diploma. On July 2, 1965, the day the

Civil Rights Act of 1964 The Civil Rights Act of 1964 () is a landmark civil rights and United States labor law, labor law in the United States that outlaws discrimination based on Race (human categorization), race, Person of color, color, religion, sex, and nationa ...

took effect, Duke Power added two employment tests, which would allow employees without high-school diplomas to transfer to higher-paying departments. The Bennett Mechanical Comprehension Test was a test of

mechanical aptitude According to Paul Muchinsky in his textbook ''Psychology Applied to Work'', "mechanical aptitude tests require a person to recognize which mechanical principle is suggested by a test item." The underlying concepts measured by these items include so ...

, and the Wonderlic Cognitive Ability Test was an

IQ test An intelligence quotient (IQ) is a total score derived from a set of standardized tests or subtests designed to assess human intelligence. The abbreviation "IQ" was coined by the psychologist William Stern (psychologist), William Stern for th ...

measuring

general A general officer is an Officer (armed forces), officer of highest military ranks, high rank in the army, armies, and in some nations' air forces, space forces, and marines or naval infantry. In some usages the term "general officer" refers t ...

intelligence Intelligence has been defined in many ways: the capacity for abstraction, logic, understanding, self-awareness, learning, emotional knowledge, reasoning, planning, creativity, critical thinking, and problem-solving. More generally, it can b ...

. Blacks were almost ten times less likely than whites to meet these new employment and transfer requirements. According to the 1960 Census, while 34% of white males in North Carolina had high-school diplomas, only 18% of blacks did. The disparities of aptitude tests were far greater; with the cutoffs set at the median for high-school graduates, 58% of whites passed, compared to 6% of blacks.

Judgment

The Supreme Court ruled that under

Title VII of the Civil Rights Act of 1964 The Civil Rights Act of 1964 () is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, and national origin. It prohibits unequal application of voter registration requir ...

, if such tests disparately impact

ethnic minority The term 'minority group' has different usages depending on the context. According to its common usage, a minority group can simply be understood in terms of demographic sizes within a population: i.e. a group in society with the least number o ...

groups, businesses must demonstrate that such tests are "reasonably related" to the job for which the test is required. Because Title VII was passed pursuant to Congress's power under the

Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...

of the

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...

, the disparate impact test later articulated by the Supreme Court in '' Washington v. Davis'', 426 US 229 (1976) is inapplicable. (The ''Washington v. Davis'' test for disparate impact is used in constitutional

equal protection clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...

cases, while Title VII's prohibition on disparate impact is a

statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...

mandate.) As such, Title VII of the Civil Rights Act prohibits employment tests (when used as a decisive factor in employment decisions) that are not a "reasonable measure of job performance," regardless of the absence of actual intent to discriminate. Since the aptitude tests involved, and the high school diploma requirement, were broad-based and not directly related to the jobs performed, Duke Power's employee transfer procedure was found by the Court to be in violation of the Act.

Chief Justice Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul Colleg ...

wrote the majority opinion.

Significance

''Griggs v. Duke Power Co.'' also held that the employer had the burden of producing and proving the business necessity of a test. However, in ''

Wards Cove Packing Co. v. Atonio ''Wards Cove Packing Co. v. Atonio'', 490 U.S. 642 (1989), was a court case concerning employment discrimination, argued before the Supreme Court of the United States, United States Supreme Court on January 18, 1989, and decided on June 5, 1989. ...

'' (1989), the Court reduced the employer's (

Wards Cove Packing Company Wards Cove Packing Company was a cannery located in the community of Ward Cove, on the northern outskirts of the larger city of Ketchikan in the U.S. state of Alaska. The original Wards Cove Cannery was established in 1928, on Ward Cove and operat ...

) burden to producing only evidence of business justification. In 1991, the Civil Rights Act was amended to overturn that portion of the ''Wards Cove'' decision—although legislators included language designed to exempt the Wards Cove company itself.

David Frum David Jeffrey Frum (; born June 30, 1960) is a Canadian-American political commentator and a former speechwriter for President George W. Bush, who is currently a senior editor at ''The Atlantic'' as well as an MSNBC contributor. In 2003, Frum au ...

asserts that before ''Griggs'', employers did not have to separate intentional wrongs from unintentional wrongs if they treated all applicants equally by appearances. Although private employers with 15 or more employees are subject to

Title VII of the Civil Rights Act The Civil Rights Act of 1964 () is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, and national origin. It prohibits unequal application of voter registration requir ...

, it was held in '' Washington v. Davis'' (1976) that the disparate impact doctrine does not apply to the

equal protection The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equa ...

requirement of the Fifth and Fourteenth Amendments. Thus, lawsuits against public employers may be barred by

sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...

Notes

References

* * *E McGaughey, ''A Casebook on Labour Law'' (Hart 2019) ch 13, 595

External links