50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 8: The Supreme Court Finds That Unintentional Discrimination Violates Title VII

by Hirschfeld Kraemer LLP

Number 8:  The Supreme Court Finds That Unintentional Discrimination Violates Title VII

People don’t discriminate by accident. But in the wake of the passage of Title VII, employers began adopting facially neutral policies which had the effect of discriminating against protected classes.  Before Title VII became law, some employers would overtly discriminate, having a policy that black employees could only work in certain low-paying jobs.  After Title VII’s passage, those same companies tried to create the same effect by, for example,  having employees take IQ tests that they knew racial minorities were unlikely to pass. 

That all changed in 1971 when the Supreme Court decided Griggs v. Duke Power Co., 401 U.S. 424 (1971).  The Griggs Court found that Title VII prohibited not just intentional discrimination based on an individual’s race, color, religion, sex, or national origin, but also unintentional discrimination in the form of neutral or selection testing procedures that had the effect of disproportionately excluding persons based on a protected class when the testing procedures are not job-related and consistent with a business necessity.  Chief Justice Berger, in writing for a unanimous Court, declared that Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.  This decision coined the phrase “disparate impact” discrimination.

Of the 14 African Americans employed at Duke Power in North Carolina, 13 sued the Company on the basis that Duke Power’s testing and educational requirements violated Title VII.  In 1955, the Company introduced a policy requiring a high school education for initial assignment to four of its five departments.  On the date that Title VII became effective, July 2, 1965, the Company added a new requirement that new employees seeking employment in four departments obtain satisfactory scores on two professionally prepared aptitude tests, in addition to the existing high school education requirement.  A few months later, the Company began allowing current employees lacking a high school education to qualify for internal transfers by passing two tests – a Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test.  The tests were not designed to measure the individual’s ability to learn a particular job.  The requisite scores approximated the median for high school graduates at a time when it was undisputed that African Americans “received an inferior education in North Carolina.”  There was also no dispute that “whites register far better on the Company’s alternative requirements than Negroes.”

The lower court found that although Duke Power had intentionally discriminated against African Americans, it had stopped this practice after Title VII became effective.  The Court of Appeals concluded there was no violation of Title VII, because the employer had no purpose or intent to discriminate and the testing standards were applied to everyone regardless of race.  In the absence of discriminatory motive, the testing requirements were appropriate.  It rejected the employees’ argument that because the education and testing requirements effectively made a markedly disproportionate number of African Americans ineligible, they were unlawful under Title VII.

The Supreme Court agreed that Duke Power had no discriminatory intent.  However, it held that Title VII is also designed to prohibit practices that have the effect of adversely impacting members of a protected class.  To illustrate his point, Berger turned to Aesop’s fable, The Fox and the Stork.  He wrote, “Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.”  This fable tells the story of the fox who invites the stork to eat with him and provides soup in a bowl.  The fox can lap up the soup easily, but the stork cannot drink the soup with his beak.  In response, the stork invites the fox to a meal served in a narrow-necked vessel.  The stork may access the meal, but it is impossible for the fox to eat using the vessel.  Continuing with his Aesop reference, Justice Berger stated that Congress provided that the vessel in which the milk is proffered be one all seekers can use.  The Act proscribes not only overt discrimination, but also employer practices that are fair in form, but discriminatory in operation.

The standard, the Court explained, is business necessity.  Does the employment practice operate to exclude a protected class while being unrelated to job performance?  If the answer is yes, the practice is prohibited.  Duke Power’s requirement that the employee complete high school and score satisfactorily on general intelligence tests was not shown to bear a demonstrable relationship to successful performance of the jobs being offered.  The Company’s testimony that the requirements were to “improve the overall quality of the work force” were insufficient.  Title VII allows testing mechanisms, but these mechanisms are not allowed to be the controlling force unless they are demonstrably a reasonable measure of job performance.  Congress, the Chief Justice wrote, has not commanded employers prefer the less qualified over the better qualified, simply because of minority origins.  Rather, Congress has made such qualifications the controlling factor, so that race, religion, nationality and sex become irrelevant.  What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.

Seven years after Griggs, the EEOC adopted Uniform Guidelines on Employee Selection Procedures (UGESP).  UGESP provides guidance to employers about how to determine if their tests and selection procedures are lawful under the disparate impact theory created by Griggs.  UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity.  The EEOC calls these methods of demonstrating job-relatedness “test validation,” and the UGESP provides detailed guidance for employers about each method of test validation.

Duke Power was established in 1900 and still operates today under the name Duke Energy.  According to its website, it is the largest electric power holding company in the United States.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hirschfeld Kraemer LLP | Attorney Advertising

Written by:

Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.