| || ||
UNITED STATES SUPREME COURT
v. Duke Power Company
U.S. 424 (1971)
TITLE VII BAR ANY JOB REQUIREMENT
THAT BLACKS FAIL MORE OFTEN THAN WHITES,
THE GOVERNMENT CONSIDERS UNNECESARY?
Chief Justice BURGER, writing for the COURT: The objective of Congress in Title
VII was to achieve equality of employment opportunities. What is required is the
removal of artificial, arbitrary, and unnecessary barriers to employment when
the barriers operate invidiously to discriminate on the basis of racial or other
impermissible classification. Title VII proscribes not only overt discrimination
but also practices that are discriminatory in operation. The touchstone is business
necessity. If an employment practice that operates to exclude blacks cannot be
shown to be related to job performance, the practice is prohibited as a classification
because of race.
Interspersed REBUTTAL indented in italics by Curtis Crawford:
April 2006.] Discrimination against workers, based on race, color, religion,
sex, or national origin, has been a formidable barrier to employment opportunities.
This, Title VII clearly forbids. But other barriers, such as requirements that
workers have certain levels of education or ability, also exist. These barriers
are not banned by the statute, unless adopted with discriminatory intent. The
Court postulates an offense: selection requirements, which have unequal racial
results, and which the government judges unnecessary. Such an addition is not
coherently supported by the language of Title VII, and was strongly opposed by
the bill's proponents in Congress.
Justice Burger, writing for the Court:]
granted the writ in this case to resolve the question whether an employer is prohibited
by the Civil Rights Act of 1964, Title VII, from requiring a high school education
 or passing of a standardized general intelligence test as a condition of
employment in or transfer to jobs when (a) neither standard is shown to be significantly
related to successful job performance, (b) both requirements operate to disqualify
Negroes at a substantially higher rate than white applicants, and (c) the jobs
in question formerly had been filled only by white employees as part of a longstanding
practice of giving preference to whites.1
are the questions at issue, formulated by the Court, and answered in its decision.
The two statutory bases for the decision are quoted in the Opinion's first footnote,
[ Footnote 1] The Act provides: "Sec. 703. (a) It shall be an unlawful employment
practice for an employer - . . . . . "(2) to limit, segregate, or classify his
employees in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an employee,
because of such individual's race, color, religion, sex, or national origin. .
. . .
"(h) Notwithstanding any other provision of this title, it shall not
be an unlawful employment practice for an employer . . . to give and to act upon
the results of any professionally developed ability test provided that such test,
its administration or action upon the results is not designed, intended or used
to discriminate because of race, color, religion, sex or national origin. . .
." 78 Stat. 255, 42 U.S.C. 2000e-2.]
that neither provision says anything about selection requirements that are unrelated
to job performance, or that bar one race at a higher rate than another, or about
jobs previously off limits because of race. The task of the Opinion is to show
that the legislative commands explicit in these provisions logically imply the
judicial commands in the Court's decision.
§ 703 (a) (2) is often described as barring any segregation or classification
based on race. But this description ignores the impact of the subordinate clause
between "way " and "because." Without its 21 words, the section would indeed prohibit
all employer practices that would "limit, segregate, or classify" employees "because
of their race, color, religion, sex, or national origin." The impact of the subordinate
clause is crucial to the Court's reasoning and to my rebuttal.
703 (h) does not forbid ability tests, unless they are "designed, intended or
used to discriminate because of race. . ." Every ability test can be said to discriminate,
since it treats people differently and unequally based on their performance in
the test. It grades them, passes or fails them, because of the percentage of questions
answered correctly. However, if its purpose is not to obtain workers of greater
ability, but of one race rather than another, it is being used "to discriminate
because of race," and therefore falls under § 703 (h).
Opinion will now summarize the facts of the case. At this stage of the litigation,
they are not at issue, but readers will find the legal arguments more interesting
and concrete if they understand the factual background.
provided, in Title VII of the Civil Rights Act of 1964, for class actions for
enforcement of provisions of the Act and this proceeding was brought by a group
of incumbent Negro employees against Duke Power Company. All the petitioners are
employed at the Company's Dan River Steam Station, a power generating facility
located at Draper, North Carolina. At the time this action was instituted, the
Company had 95 employees at the Dan River Station, 14 of whom were Negroes; 13
of these are petitioners here.
District Court found that prior to July 2, 1965, the effective date of the Civil
Rights Act of 1964, the  Company openly discriminated on the basis of race
in the hiring and assigning of employees at its Dan River plant. The plant was
organized into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations,
(4) Maintenance, and (5) Laboratory and Test. Negroes were employed only in the
Labor Department where the highest paying jobs paid less than the lowest paying
jobs in the other four "operating" departments in which only whites were employed.2
Promotions were normally made within each department on the basis of job seniority.
Transferees into a department usually began in the lowest position.
Footnote 2 ] A Negro was first assigned to a job in an operating department in
August 1966, five months after charges had been filed with the Equal Employment
Opportunity Commission. The employee, a high school graduate who had begun in
the Labor Department in 1953, was promoted to a job in the Coal Handling Department.
Power Company's practices before the 1964 Civil Rights Act took effect would clearly
have violated the Act's prohibitions. Its Section 703, DISCRIMINATION BECAUSE
OF RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN, generally bans such discrimination
by employers, employment agencies, and labor organizations (parts a-d), with certain
specified exceptions and clarifications (parts e-j). The practices forbidden to
employers are mainly in part a, set forth in Sections 703 a-2, already cited above,
and in 703 a-1. For ease of reference, I insert both parts here.
(a) It shall be an unlawful employment practice for an employer- (1) to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion, sex, or national
origin; (2) to limit, segregate, or classify his employees in any way which would
deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual's race,
color, religion, sex, or national origin.
Company's pre-Act refusal to hire applicants, if they were black, for any Department
but Labor, would have violated a-1. The refusal to transfer employees, because
they were black, to Departments with better pay and higher prestige than Labor,
would presumably have violated a-2.
In 1955 the Company instituted a policy of requiring a high school education for
initial assignment to any department except Labor, and for transfer from the Coal
Handling to any "inside" department (Operations, Maintenance, or Laboratory).
When the Company abandoned its policy of restricting Negroes to the Labor Department
in 1965, completion of high school also was made a prerequisite to transfer from
Labor to any other department. From the time the high school requirement was instituted
to the time of trial, however, white employees hired before the time of the high
school education requirement continued to perform satisfactorily and achieve promotions
in the "operating" departments. Findings on this score are not challenged.
Company added a further requirement for new employees on July 2, 1965, the date
on which Title VII became effective. To qualify for placement in any but the Labor
Department it became necessary to register satisfactory scores on two professionally
prepared aptitude  tests, as well as to have a high school education. Completion
of high school alone continued to render employees eligible for transfer to the
four desirable departments from which Negroes had been excluded if the incumbent
had been employed prior to the time of the new requirement. In September 1965
the Company began to permit incumbent employees who lacked a high school education
to qualify for transfer from Labor or Coal Handling to an "inside" job by passing
two tests - the Wonderlic Personnel Test, which purports to measure general intelligence,
and the Bennett Mechanical Comprehension Test. Neither was directed or intended
to measure the ability to learn to perform a particular job or category of jobs.
The requisite scores used for both initial hiring and transfer approximated the
national median for high school graduates.3
Footnote 3 ] The test standards are thus more stringent than the high school requirement,
since they would screen out approximately half of all high school graduates.
Company's purpose in changing the requirements concerning high school graduation
and mental tests might have been (a) to assure quality, regardless of race, or
(b) to continue the previous policy of discriminating against their black workers
because of their race. Had (b) been shown at trial, both parties and all the judges
below agreed that the change in requirements would have violated Title VII's ban
on racial discrimination. |
District Court had found that while the Company previously followed a policy of
overt racial discrimination in a period prior to the Act, such conduct had ceased.
The District Court also concluded that Title VII was intended to be prospective
only and, consequently, the impact of prior inequities was beyond the reach of
corrective action authorized by the Act.
Court of Appeals was confronted with a question of first impression, as are we,
concerning the meaning of Title VII. After careful analysis a majority of that
court concluded that a subjective test of the employer's intent should govern,
particularly in a close case, and that in this case there was no showing of a
discriminatory purpose in the adoption of the diploma and test requirements. On
this basis, the Court of Appeals concluded there was no violation of the Act.
Court of Appeals reversed the District Court in part, rejecting the holding that
residual discrimination arising from prior employment practices was insulated
from remedial action.4
Footnote 4 ] The Court of Appeals ruled that Negroes employed in the Labor Department
at a time when there was no high school or test requirement for entrance into
the higher paying departments could not now be made subject to those requirements,
since whites hired contemporaneously into those departments were never subject
to them. The Court of Appeals also required that the seniority rights of those
Negroes be measured on a plantwide, rather than a departmental, basis. However,
the Court of Appeals denied relief to the Negro employees without a high school
education or its equivalent who were hired into the Labor Department after institution
of the educational requirement.
*The Court of Appeals noted, however, that the District Court was correct in its
conclusion that there was no showing of a racial purpose or invidious intent in
the adoption of the high school diploma requirement or general intelligence test
and that these standards had been applied fairly to whites and Negroes alike.*
**It held that, in the absence of a discriminatory purpose, use of such requirements
was permitted by the Act. In so doing, the Court of Appeals rejected the claim
that because these two requirements operated to render ineligible a markedly disproportionate
number of Negroes, they were unlawful under Title VII unless shown to be job related.5**
We granted the writ on these claims. 399 U.S. 926.
Footnote 5 ] One member of that court disagreed with this aspect of the decision,
maintaining, as do the petitioners in this Court, that Title VII prohibits the
use of employment criteria that operate in a racially exclusionary fashion and
do not measure skills or abilities necessary to performance of the jobs for which
those criteria are used.
The Supreme Court will not dispute this finding by the Court of Appeals.
Nevertheless, despite the assumed "absence of a discriminatory purpose," the Supreme
Court will uphold the claim (rejected by the Court of Appeals) that the Company's
"two requirements" are prohibited by Title VII.
The objective of Congress in the enactment of Title VII is plain from the language
of the statute. It was to achieve equality of employment opportunities and remove
 barriers that have operated in the past to favor an identifiable group of
white employees over other employees. Under the Act, practices, procedures, or
tests neutral on their face, and even neutral in terms of intent, cannot be maintained
if they operate to "freeze" the status quo of prior discriminatory employment
That is not how the law was described by its proponents. Their "Interpretative
Memorandum" begins with this summary [110 Congressional Record 7217]:
VII deals with discrimination in employment. It would make it an unlawful employment
practice for employers of more than 25 persons, employment agencies, or labor
organizations with more than 25 members to discriminate on account of race, color,
religion, sex, or national origin in connection with employment, membership in
labor organizations, or participation in apprenticeship or other training programs.
An Equal Employment Opportunity Commission would be created to enforce the title
through investigation of complaints of discrimination, conciliation of disputes,
and where necessary, suits in Federal court to compel compliance with the provisions
of the title.
The Court of Appeals' opinion, and the partial dissent, agreed that, on the record
in the present case, "whites register far better on the Company's alternative
requirements" than Negroes.6 420 F.2d 1225, 1239 n. 6.
Footnote 6 ] In North Carolina, 1960 census statistics show that, while 34% of
white males had completed high school, only 12% of Negro males had done so. U.S.
Bureau of the Census, U.S. Census of Population: 1960, Vol. 1, Characteristics
of the Population, pt. 35, Table 47. Similarly, with respect to standardized tests,
the EEOC in one case found that use of a battery of tests, including the Wonderlic
and Bennett tests used by the Company in the instant case, resulted in 58% of
whites passing the tests, as compared with only 6% of the blacks. Decision of
EEOC, CCH Empl. Prac. Guide, 17,304.53 (Dec. 2, 1966). See also Decision of EEOC
70-552, CCH Empl. Prac. Guide, 6139 (Feb. 19, 1970).
consequence would appear to be directly traceable to race. Basic intelligence
must have the means of articulation to manifest itself fairly in a testing process.
Because they are Negroes, petitioners have long received inferior education in
segregated schools and this Court expressly recognized these differences in Gaston
County v. United States, 395 U.S. 285 (1969). There, because of the inferior
education received by Negroes in North Carolina, this Court barred the institution
of a literacy test for voter registration on the ground that the test would abridge
the right to vote indirectly on account of race.
reasoning behind these four sentences is crucial to the Court's decision. At its
core is the meaning of "because of," when the statutory provision cited by the
Court (Sec. 703 a-2) speaks of depriving people of employment opportunities, "because
of race, color, religion, sex, or national origin." [The text of a-2 is inserted
again a few paragraphs down.]
"because of" here introduce "race . . . national origin" as unlawful motives for
an employer's action, or as unlawful collateral causes of the effect of an employer's
action? If the former, the designated wrong is intended by the employer; if the
latter, the wrong may be wholly unintended by him.
connection indicated by "because of" or its synonyms ("on account of," "on the
ground of," "by reason of," "based on") is pivotal throughout the Civil Rights
Act of 1964. The Act consists mainly of bans on discrimination in privately-owned
public accommodations (hotels, restaurants, theaters), state-owned public facilities
(parks, museums), public educational institutions, federally assisted programs,
and (in Title VII) private employment. The prohibited bases of unlawful treatment
are usually race, color, religion and national origin, but also include sex (in
Court indicates that its interpretation of the law in this case is similar to
the Gaston Court's interpretation of similar statutory language concerned
with similar facts. The argument is so briefly described that its logic may be
unclear. Let me supply a fuller account of the reasoning, as I understand it.
applied in Gaston is the Voting Rights Act of 1965. It bars [§ 4 (a)] any
"test or device" used by state or local government "for the purpose or with the
effect of denying or abridging the right to vote on account of race or color."
The law applied in Griggs is the Civil Rights Act of 1964. As we have seen, it
forbids [§ 703 (a) (2)] an employer "to limit, segregate, or classify his employees
in any way which would deprive or tend to deprive any individual of employment
opportunities . . . because of such individual's race, color, religion, sex, or
dealt with a state law, which denied the vote to people who failed a literacy
test. The Court held that the test requirement had the effect of denying
the right to vote on account of race, thus violating § 4 (a) of the Voting Rights
Act. The denial was "on account of" race, said the Gaston Court, since the high
failure rate of blacks on the test was caused by inferior, racially segregated
education, imposed by the state.
analogy to Gaston, the Griggs Court seems to construe 703 a-2 of the Civil
Rights Act as follows: Job requirements, such as high-school graduation or passing
an intelligence test, "limit," "segregate," or "classify" people, by dividing
them into those who pass and those who fail. This "deprive[s]" those who fail
of "employment opportunities." The deprivation is "because of" race, since the
high failure rate of blacks on these requirements is caused by an inferior,
racially segregated education. Therefore, these job requirements, even if adopted
with no intent to discriminate, are prohibited when they bar the way to black
using the word, precedent, the Griggs Opinion implies that its interpretation
of 703 a-2 in title VII is governed by the Gaston Court's interpretation
of 4 a in the Voting Rights Act. In my previous rebuttal to Griggs, I thought
this wholly unwarranted. But, in addition to the arguments above, there is a grammatical
basis for the Court's interpretation, not mentioned in the Opinion. Here again
is the provision, side by side with 703 a-1, the other principal ban concerning
(a) It shall be an unlawful employment practice for an employer-
(1) to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race, color, religion,
sex, or national origin; or
(2) to limit, segregate, or classify his employees
in any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because
of such individual's race, color, religion, sex, or national origin. [Emphases
a-1, the phrase beginning with "because of" modifies the actions: "to fail or
to refuse to hire," "to discharge," and "to discriminate against." These actions
are banned if the reason for doing them is the "race, color, religion, sex, or
national origin" of the person they are done to.
a-2, a subordinate clause [in bold] intervenes between the actions, "to limit,
segregate, or classify his employees," and the modifier, "because of race . .
. national origin." The subordinate clause lists possible effects of the actions.
These effects can be collaterally caused by race or by the other forbidden factors.
The modifying phrase, starting with "because of," occurs next to and after the
effects rather than next to the actions. Thus, it is reasonable to construe "because
of race . . . national origin" as modifying the designated effects, rather than
the designated actions.
would be easy to read a-2 as if the subordinate clause were not there. By 1964,
opponents of racial discrimination generally believed that to limit, segregate,
or classify workers because of their race was wrong, period. As they saw it, any
such action treated people differently, and any difference in treatment based
on race was unacceptable.
if the author of the statute meant to express this consensus, he had only to omit
the subordinate clause. Or, if he meant to ban racial et al. limitations, segregations
or classifications only if they resulted in loss of employment opportunities,
he would presumably have put "because of" after the actions and before the effects,
(a) It shall be an unlawful employment practice for an employer- . . .
to limit, segregate, or classify his employees because of their race, color,
religion, sex, or national origin, in any way which would deprive or tend
to deprive them of employment opportunities or otherwise adversely affect their
status as employees. [Emphases added.]
the structure of a-2 is no fluke. A labor union, after being forbidden in 703
c-1 to discriminate, is also forbidden, in c-2:
limit, segregate, or classify its membership, or to classify or fail or refuse
to refer for employment any individual, in any way which would deprive or tend
to deprive any individual of employment opportunities, or would limit such employment
opportunities or otherwise adversely affect his status as an employee or as an
applicant for employment, because of such individual's race, color, religion,
sex, or national origin."
it was clearly reasonable for the Court to entertain its interpretation of a-2
as a hypothesis. The question remains, whether the hypothesis can be sustained.
did not intend by Title VII, however, to guarantee a job to every person regardless
of qualifications. In short, the Act does not command that any  person be
hired simply because he was formerly the subject of discrimination, or because
he is a member of a minority group.* Discriminatory preference for any group,
minority or majority, is precisely and only what Congress has proscribed. **What
is required by Congress is the removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate invidiously to discriminate on
the basis of racial or other impermissible classification.**
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. On the contrary, *Congress has now required that the posture
and condition of the job-seeker be taken into account.* It has - to resort again
to the fable - 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
practices that are fair in form, but discriminatory in operation. **The touchstone
is business necessity. If an employment practice which operates to exclude Negroes
cannot be shown to be related to job performance, the practice is prohibited.**
After adopting an interpretation that demands close attention to the language
of a-2, the Court now ignores a key word. As written, the statute bars the limitation,
segregation, or classification of "employees," if those actions have certain effects
that are caused by race et al. However, it says nothing about job-seekers.
Nowhere does it command, or even suggest, "that any person be hired simply
because he was formerly the subject of discrimination, or because he is a member
of a minority group." [Emphasis added.] The employer's conduct toward job-seekers-whether
to hire them, and on what terms-is governed by a-1.
the Court argue that "employees" means job-seekers as well? This would be hard
to sustain. The ordinary meaning of an employer's "employees" does not include
people who seek a job from him, unless he already employs them for other work.
Title VII knows how to include job-seekers in its provisions when it wants to,
by saying "applicants" or "individuals." There is no reason to accept the Court's
view that a-2 applies to job-seekers.
The Court has interpreted a-2 to bar any job requirement that disadvantaged racial,
religious, sexual or ethnic groups disproportionately fail. It now admits that
such a rule, if fully carried out, would be harmful to business. Although the
harm would not be as great as suggested, if only employees were involved, it would
still be substantial. To prevent such harm, the Court now amends the rule it has
just laid down: a job requirement disproportionately failed by any disadvantaged
racial, religious, sex or ethnic group is forbidden, unless the requirement
is necessary for business.
is thoughtful of the Court to protect employers from being forced to use poorly
qualified workers. But did the Justices wonder why the Congress, if it meant by
703 a-2 what the Court says it meant, did not provide the protection itself? Section
703 contains a number of exceptions and clarifications, in clauses e - j. All
Congress had to do was to add the exception now added by the Court. It would be
easy to write. The Justices should have considered Congress's failure to provide
this protection as powerful evidence that the Court's interpretation of a-2 was
but not conclusive. Often, in disputes concerning interpretation, conclusive evidence
of error is unavailable. In this case, however, it can be shown that, using the
Court's interpretation of a-2, the statute contradicts itself. Here, again, is
(a) It shall be an unlawful employment practice for an employer- . . .
to limit, segregate, or classify his employees because of their race, color, religion,
sex, or national origin, in any way which would deprive or tend to deprive them
of employment opportunities or otherwise adversely affect their status as employees.
To be demonstrated:
that obedience to a-2, as interpreted by the Court, produces disobedience to a-2.
For example, to obey the statute, the employer classifies his employees into members
of racial group R, which typically scores badly on qualifications x and y, and
into non-members of R. When members of R compete with non-members of R, for promotions
or special assignments, qualifications x and y will not count.
in these competitions, such a classification would tend to deprive employees whose
qualifications x and y are strong, and who are not members of racial group R,
of employment opportunities, because of their race. The deprivation is because
of their race, since it would not occur if they were members of racial group R,
competing only with other members of R. It would not occur in that case since,
when all competitors are members of R, qualifications x and y do count.
this classification would also tend to deprive members of group R, whose qualifications
x and y are strong, of employment opportunities, because of their race, when they
compete with employees of other racial groups. The deprivation is because of race,
since it would not occur if they were not members of R, competing only with other
non-members of R. It would not occur in that case since, when no competitors are
members of R, qualifications x and y do count.
Obedience to a-2, as interpreted by the Court, produces disobedience to a-2. If
one uses the Court's interpretation of the statute, it contradicts itself.
the record before us, neither the high school completion requirement nor the general
intelligence test is shown to bear a demonstrable relationship to successful performance
of the jobs for which it was used. Both were adopted, as the Court of Appeals
noted, without meaningful study of their relationship to job-performance ability.
Rather, a vice president of the Company testified, the requirements were instituted
on the Company's judgment that they generally would improve the overall quality
of the work force.
evidence, however, shows that employees who have not completed high school or
taken the tests have continued to perform satisfactorily and make progress in
departments for which the high school and test criteria  are now used.7
Footnote 7 ] For example, between July 2, 1965, and November 14, 1966, the percentage
of white employees who were promoted but who were not high school graduates was
nearly identical to the percentage of nongraduates in the entire white work force.
promotion record of present employees who would not be able to meet the new criteria
thus suggests the possibility that the requirements may not be needed even for
the limited purpose of preserving the avowed policy of advancement within the
Company. In the context of this case, it is unnecessary to reach the question
whether testing requirements that take into account capability for the next succeeding
position or related future promotion might be utilized upon a showing that such
long-range requirements fulfill a genuine business need. In the present case the
Company has made no such showing.
purposes of discussion, I accept the Court's finding of fact, that the Company
had failed to demonstrate that graduating from high school or passing an intelligence
test correlated with successful performance of the Company's work. Our dispute
concerns the Court's finding of law, that Title VII requires such a demonstration.|
The Court of Appeals held that the Company had adopted the diploma and test requirements
without any "intention to discriminate against Negro employees." 420 F.2d, at
1232. *We do not suggest that either the District Court or the Court of Appeals
erred in examining the employer's intent;* but good intent or **absence of discriminatory
intent does not redeem employment procedures or testing mechanisms that operate
as "built-in headwinds" for minority groups and are unrelated to measuring job
In this and the ensuing paragraph the Court makes clear that its decision is not
based on a finding of intentional discrimination.
This restates the Court's holding, despite the statutory rewriting it requires
and the statutory contradiction it produces.
question of validity aside, it is easy to see the Court's interpretation as a
compromise, balancing opposing interests. The Power Company is not guilty of intentional
discrimination because of race, which would be barred, whatever its business utility.
But employment requirements were utilized that typically fail more blacks than
whites. So the Court creates a legal offense not coherently provided by the statute:
job requirements with adverse results for disadvantaged racial and other groups.
However, one would hate to deprive employers of the right to set requirements
that correlate with job competency. So the Court creates a legal defense not mentioned
in the statute: business necessity.
Company's lack of discriminatory intent is suggested by special efforts to help
the undereducated employees through Company financing of two-thirds the cost of
tuition for high school training. * But Congress directed the thrust of the Act
to the consequences of employment practices, not simply the motivation.* More
than that, ** Congress has placed on the employer the burden of showing that any
given requirement must have a manifest relationship to the employment in question.**
This would be true, if the Court's interpretation of a-2 had survived inspection.
would be true, if the Court's amendment so providing had actually been included
in the statute.
Act proscribes not only overt discrimination but also practices that are fair
in form, but discriminatory in operation.
this and preceding paragraphs, the Court refers to the offense banned by its interpretation
of 703 a-2 as a kind of "discrimination." The offense is to set job requirements
that disadvantaged racial, religious, sex, and ethnic groups disproportionately
fail. These requirements are banned, even when the employer has no desire to withhold
employment opportunities from any racial, religious, sex, or ethnic group, whether
disadvantaged or not. Such requirements, the Court insists, are a form of discrimination,
not "intentional," but "operational."
Court seems unaware that it is difficult if not impossible to ban both "intentional"
and "operational" discrimination on the same grounds by the same party at the
same time. This is because the usual way to avoid discriminating "operationally"
against members of a disadvantaged group is to discriminate intentionally in their
has been shown above that the Court errs in construing 703 a-2 to ban "operational"
discrimination. But suppose that Congress, instead of the language used in 703
a-2, had simply stated that no employer may set a job requirement that is disproportionately
failed by a disadvantaged racial, religious, sex or ethnic group, even though
this result was not sought or desired by the employer.
a law, by forbidding "operational" discrimination involving "race, color, religion,
sex, or national origin," would prompt intentional discrimination on these bases.
How so? Suppose an employer sets qualifications q and r for promotion or special
assignments. The problem is that members of disadvantaged ethnic group E fail
q at a much higher rate than members of other ethnic groups.
is the employer to do? He can keep qualification q, but lower the score that members
of E would need to pass it. Or he can drop qualification q. In either case, he
would intentionally discriminate in favor of members of E, based on their "national
origin." He would thus obey the hypothetical clause that bans "operational" discrimination,
involving "race, color, religion, sex, or national origin." But, in order to do
so, he would disobey any clause that bans intentional discrimination on these
problem would not arise if the bases for remedial action were disadvantages that
individuals may suffer no matter what their race, color, religion, sex or national
origin. Title VII permits such action, and could be amended to require it, without
compromising the statute's bans on intentional discrimination.
Court's concept of "operational" or "unintentional" discrimination confuses the
mind and corrupts the heart. It splashes the accidental with the opprobrium that
belongs to the intentional, and purges happenstance by means of compulsory injustice.
The Court's judgment that such discrimination is punishable under Title VII is
also specifically contradicted by Sec. 706 g, which requires a judicial finding
"that the respondent has intentionally engaged" in any "unlawful employment
practice" charged under the title. [Emphasis added.]
anti-discrimination commands of the Civil Rights Act of 1964 were based on the
moral principle that individuals have the rights not to suffer intentional discrimination,
in certain areas of life, on account of their "race, color, religion, sex, or
national origin." These rights rest on a strong sense of justice, which long preceded
discrimination lacks this powerful, moral foundation. It labels as "discrimination"
any practice that happens to disadvantage a racial, religious, sex, or
ethnic group, even when the effect was unintended. But there is no moral right
(belonging to individuals or groups) that such practices not exist. Indeed, given
the diversity of experience, background, education, customs, skills, beliefs,
desires, tastes and interests within and among human groups, one would expect
that most practices would scatter advantageous and disadvantageous effects on
various individuals in various groups.
is worth noting also that the concept of "operational" discrimination operates
to dilute the moral impact of claims to have suffered past discrimination. Whenever
this discrimination was "operational," it did not violate the moral right not
to be discriminated against.
facts of this case demonstrate the inadequacy of broad and general testing devices
as well as the infirmity of using diplomas or degrees as fixed measures of capability.
History is filled with examples of men and women who rendered highly effective
performance without the conventional badges of accomplishment in terms of certificates,
diplomas, or degrees. Diplomas and tests are useful servants, but Congress has
mandated the commonsense proposition that they are not to become masters of reality.
Employers have long found not only diplomas and tests to be useful criteria
when picking employees, but also such factors as prior work experience, absence
of a criminal record, and being married. These are seen as indicators of steadiness
and character. Under the Court's interpretation of Title VII, an employer must
(a) abandon such requirements, or (b) demonstrate their correlation with job performance,
or (c) prove that they never produce rates of failure that differ significantly
by race, ethnicity, religious affiliation or gender. Does the Court really believe
that members of Congress intended to impose this choice? Or that if they had so
understood the statute, they would have passed it? |
The Company contends that its general intelligence tests are specifically permitted
by 703 (h) of the Act.8 That section authorizes the
use of "any professionally developed ability test" that is not "designed, intended
or used to discriminate because of race . . . ."
[Footnote 8] Section 703 (h): "Notwithstanding any other provision
of this title, it shall not be an unlawful employment practice for an employer
. . . to give and to act upon the results of any professionally developed ability
test provided that such test, its administration or action upon the results is
not designed, intended or used to discriminate because of race, color, religion,
sex or national origin. . . ."
Company is surely correct. It used the Wonderlic Personnel Test and the Bennett
Mechanical Comprehension Test. That these are ability tests, professionally developed,
no one denies. That they were designed by their authors or intended by the Company
to discriminate because of race, the Court does not allege.
italicize the words, "or used"? Does the Court imagine that the words imply "operational"
discrimination? This would be a mistake. A knife used to cut is used for that
purpose, like a pen used to write, or a cup used to drink. "Used to" in these
contexts simply implies purpose. A test "used to discriminate because of race"
would be used with that purpose, and thus be intentionally discriminatory. 703
h does not create an additional offense of "operational" discrimination.
Equal Employment Opportunity Commission, having enforcement responsibility, has
issued guidelines interpreting § 703 (h) to permit only the use of job-related
tests.9 The administrative interpretation of the
 Act by the enforcing agency is entitled to great deference. See, e. g.,
United States v. City of Chicago, 400 U.S. 8 (1970); Udall v. Tallman,
380 U.S. 1 (1965); Power Reactor Co. v. Electricians, 367 U.S. 396 (1961).
Footnote 9] EEOC Guidelines on Employment Testing Procedures, issued August 24,
1966, provide: "The Commission accordingly interprets `professionally developed
ability test' to mean *a test which fairly measures the knowledge or skills required
by the particular job or class of jobs which the applicant seeks, or which fairly
affords the employer a chance to measure the applicant's ability to perform a
particular job or class of jobs.* The fact that a test was prepared by an individual
or organization claiming expertise in test preparation does not, without more,
justify its use within the meaning of Title VII." The EEOC position has been elaborated
in the new Guidelines on Employee Selection Procedures, 29 CFR 1607, 35 Fed. Reg.
12333 (Aug. 1, 1970). These guidelines demand that employers using tests have
available *"data demonstrating that the test is predictive* of or significantly
correlated with important elements of work behavior which comprise or are relevant
to the job or jobs for which candidates are being evaluated." Id., at 1607.4 (c).
As compared with the language of § 703 (h), the EEOC erases "ability test" and
substitutes "a test which fairly measures . . . the applicant's ability to perform
a particular job or class of jobs." This revokes the statute's permission of other
kinds of ability tests, including general intelligence tests. Moreover, to use
the tests permitted by the EEOC, the employer must have data in hand that demonstrate
their predictive power. When judges construe a statute to revise or supplement
its language, they are required to explain themselves. If the EEOC has a justification
for its revision of 703 h, the Court does not cite it.|
Since the Act and its legislative history support the Commission's construction,
this affords good reason to treat the guidelines as expressing the will of Congress.
703 h clearly does not support "the Commission's construction." Whether "its
legislative history" does so we are about to see. The Court will cite passages
from the Senate debate on the Civil Rights Act of 1964, which ran from March through
June, providing far more information on what legislators thought they were doing
than is usually available. Since we are about to attend the debate, let me review
the current status of the Court's interpretation.
Unlawful deprivation of employment opportunity because of race occurs when job
requirements, though not intended to discriminate, have different racial results,
which can be ascribed to racial disadvantage:
initially supported by Gaston
and by the language of 703 a-2;
suspect, as requiring changes and additions
devoid of legal authority, since it forces a-2 to contradict itself;
employment requirements, when not demonstrably related to job performance, are
asserted by the Court;
asserted re ability tests by the EEOC's
interpretation of 703 h;
neither expressed nor shown to be implied by h;
Section 703 (h) was not contained in the House version of the Civil Rights Act
but was added in the Senate during extended debate. For a period, debate revolved
around claims that the bill as proposed would prohibit all testing and force employers
to hire unqualified persons simply because they were part of a group formerly
subject to job discrimination.10
Footnote 10 ] The congressional discussion was prompted by the decision of a hearing
examiner for the Illinois Fair Employment Commission in Myart v. Motorola Co.
(The decision is reprinted at 110 Cong. Rec. 5662.) That case suggested that standardized
tests on which whites performed better than Negroes could never be used. The decision
was taken to mean that such tests could never be justified even if the needs of
the business required them. A number of Senators feared that Title VII might produce
a similar result. See remarks of Senators Ervin, 110 Cong. Rec. 5614-5616; Smathers,
id., at 5999-6000; Holland, id., at 7012-7013; Hill, id.,
at 8447; Tower, id., at 9024; Talmadge, id., at 9025-9026; Fulbright,
id., at 9599-9600; and Ellender, id., at 9600.
The test disallowed in Myart was a general intelligence test, like the
test in Griggs. The decision in Griggs was quite similar in direction and rationale
to the decision in Myart. In both cases, a general ability test was banned,
because it disproportionately failed blacks, an educationally disadvantaged racial
group. Thus, while debating Title VII, the Senate had the rare opportunity of
responding to the law's future interpretation by this Court. Likewise, while pondering
its decision, this Court had the rare opportunity to see how its interpretation
would have been received by those who made the law.
Senator applauded the Myart result. Opponents of Title VII seized upon
it, repeating: we told you so, we told you so! Proponents denounced it: no court,
they insisted, could reach the Myart decision, based on the content of Title VII.
Proponents of Title VII sought throughout the debate to assure the critics that
the Act would have no effect on job-related tests. *Senators Case of New Jersey
and Clark of Pennsylvania, comanagers of the bill on the Senate floor, issued
a memorandum explaining that the proposed Title VII "expressly protects the employer's
right to insist that any prospective applicant, Negro or white, must meet the
applicable job qualifications. Indeed, the very purpose of title VII is to
promote hiring on the basis of job qualifications, rather than on the basis of
race or color."* 110 Cong. Rec. 7247. 11
* This is one of two important memoranda noted by the Court. Unfortunately,
the Opinion confuses their source, content, and order of presentation. The short
memo cited here was submitted by Senator Case alone, appeared first, and was prompted
by the Myart case. Neither in the portion quoted by the Court, nor elsewhere,
does it suggest that the skills measured by tests or other selection requirements
must be related to specifi jobs. The employer's right to insist that applicants
meet "the applicable job qualifications" is indeed affirmed. But it is the employer,
not the government, who decides what qualifications are applicable. The only qualifications
that may not be used, according to Case, are the five explicitly forbidden by
the statute: race, color, religion, sex, and national origin.
what the Court did , but not that the Court would do it, the memo adds: "Whatever
its merit as a socially desirable objective, title VII would not require, and
no court could read title VII as requiring, an employer to lower or change
the occupational qualifications he sets for his employees simply because proportionally
fewer Negroes than whites are able to meet them. . . . Title VII would
in no way interfere with the right of an employer to fix job qualifications
. . ." [Emphasis added.] 110 Cong. Rec. 6416
is the Court's Footnote 11, referring to the second memorandum I mentioned above.
[Footnote 11] The Court of Appeals majority, in finding no requirement
in Title VII that employment tests be job related, relied in part on a  quotation
from an *earlier Clark-Case interpretative memorandum addressed to the question
of the constitutionality of Title VII.* The Senators said in that memorandum:
"There is no requirement in title VII that employers abandon bona fide qualification
tests where, because of differences in background and education, members of some
groups are able to perform better on these tests than members of other groups.
An employer may set his qualifications as high as he likes, he may test to determine
which applicants have these qualifications, and he may hire, assign, and promote
on the basis of test performance." 110 Cong. Rec. 7213. *
long, authoritative statement, issued jointly by Senators Clark and Case two weeks
after the Case memo above, is a summary and interpretation of Title VII, not a
discussion of its constitutionality. In addition to the two sentences quoted in
Footnote 11, it stresses "the right which all employers would have to hire and
fire on the basis of general qualifications for the job, such as skill or intelligence."
It adds: "To discriminate is to make a distinction, to make a difference in treatment
or favor, and those distinctions or differences in treatment or favor which are
prohibited by section 70 are based on any of the five forbidden criteria: race,
color, religion, sex and national origin. Any other criterion or qualification
for employment is not affected by this title." 110 Cong. Rec. 7213. [Emphases
added.] This understanding of Title VII confirms the views stated in the Case
[Footnote 11, cont.] However, nothing there stated conflicts with
the later [the earlier] memorandum dealing specifically with the debate over employer
testing, 110 Cong. Rec. 7247 (quoted from in the text above), in which Senators
Clark and Case explained that tests which measure "applicable job qualifications"
are permissible under Title VII. In the earlier [the later] memorandum
Clark and Case assured the Senate that employers were not to be prohibited from
using tests that determine qualifications. Certainly a reasonable interpretation
of what the Senators meant, in light of the subsequent [the previous] memorandum
directed specifically at employer testing, was that *nothing in the Act prevents
employers from requiring that applicants be fit for the job.* [Bracket corrections
Moreover, according to the Interpretative Memorandum, nothing in the Act prevents
employers from defining fitness as they like, narrowly or broadly, provided they
do not define it in terms of "race, color, religion, sex or national origin."
easy to show that Title VII, as described by the memoranda cited by the Court,
contradicts the Court's interpretation of it. But the question remains, whether
the memo's description is correct. Clearly, Senator Case was wrong in predicting
that "no court could read title VII as requiring "an employer to lower or
change the occupational qualifications he sets for his employees simply because
proportionally fewer Negroes than whites are able to meet them." The Supreme Court
in Griggs could so read the law and did.
opponents of Title VII feared such a decision by the EEOC or the courts, and they
were right. Why? Did they foresee the Court's construction of 703 a-2? Not at
all. I found only one opponent, Senator Ervin, who even discussed the wording
of a-2, and he did not notice the implication that would be drawn by the Court.
Other opponents criticized Title VII for not defining "discrimination." They suspected
that the EEOC would devise, and the courts accept, a definition of "discrimination"
that would produce the same result as in Myart. They feared this as a result
not of the bill's language but of the partisanship they expected in the EEOC's
staff. This fear was convenient. It provided Southern Senators a more respectable
argument against the title than the pro-discrimination sentiment in much of their
never quoted 703 a-2 (or 703 c-2, which contains similar language concerning unions).
When they summarized 703's prohibitions, they always mentioned the bans on discriminatory
practices, but never the bans on effects that deprive people of employment opportunities.
Their most complete summary, in the Interpretative Memorandum cited above, includes
a paraphrase of a-2. But the paraphrase, by reversing the positions of the subordinate
clause and the prohibited factors, quite changes the overall meaning.
I quote first the language of a-2, and then the paraphrase at 88 Cong. Rec. 7212.
[Bold and italic emphases added.]
(a) It shall be an unlawful employment practice for an employer- . . .
to limit, segregate, or classify his employees in any way which would deprive
or tend to deprive any individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual's race, color,
religion, sex, or national origin. . . . . .
would be an unlawful employment practice for an employer . . . to segregate or
classify employees in any way on the basis of race, color, religion, sex, or national
origin in such a way as to deprive them of employment opportunities or otherwise
affect their employment status.
grammatical structure of the statutory language invites the Court's interpretation.
It bans certain effects if collaterally caused by race, etc. In
contrast, the grammatical structure of the paraphrase bars the Court's interpretation.
It bans certain actions if motivated by race, etc., when they hurt
employment opportunities. One can't tell whether the Senators who supported Title
VII were voting for a-2 as written or as paraphrased.
Despite  these assurances, Senator Tower of Texas introduced an amendment
authorizing "professionally developed ability tests." Proponents of Title VII
opposed the amendment because, as written, it would permit an employer to give
any test, "whether it was a good test or not, so long as it was professionally
designed. * Discrimination could actually exist under the guise of compliance
with the statute." * 110 Cong. Rec. 13504 (remarks of Sen. Case).
This is surely one of the disadvantages of allowing general ability tests as job
requirements: their potential use by employers covertly to discriminate on the
forbidden grounds. Nevertheless, proponents of Title VII insisted that such tests
were not banned by anything in the statute, either before or after the Tower amendment
The amendment was defeated and two days later Senator Tower offered a substitute
amendment which was adopted verbatim and is now the testing provision of § 703
(h). Speaking for the supporters of Title VII, Senator Humphrey, who had vigorously
opposed the first amendment, endorsed the substitute amendment, stating: "Senators
on both sides of the aisle who were deeply interested in Title VII have examined
the text of this [401 U.S. 424, 436] amendment and have found it to be in accord
with the intent and purpose of that title." 110 Cong. Rec. 13724. The amendment
was then adopted.12
Footnote 12 ] Senator Tower's original amendment provided in part that a test
would be permissible "if . . . in the case of any individual who is seeking employment
with such employer, such test is designed to determine or predict whether such
individual is suitable or trainable with respect to his employment in the particular
business or enterprise involved . . . ." 110 Cong. Rec. 13492. This language indicates
that Senator Tower's aim was simply to make certain that job-related tests would
be permitted. The opposition to the amendment was based on its loose wording which
the proponents of Title VII feared would be susceptible of misinterpretation.
*The final amendment, which was acceptable to all sides, could hardly have required
less of a job relation than the first.* [401 U.S. 424, 437]
* The final amendment, incorporated as part of 703 h, permitted employers "to
give and to act upon the results of any professionally developed ability test
provided that such test, its administration or action upon the results is not
designed, intended or used to discriminate because of race, color, religion, sex
or national origin." As compared with the original amendment, the final version
removes every term that would require job-relatedness. It is nonsense for the
Court to argue that such a change "could hardly have required less of a job relation
than the first." Throughout its report of the Senate debate, the Court has refused
to acknowledge the proponents' view that employers, not the government, should
decide job qualifications. With this excepting only: that a worker's "race, color,
religion, sex, or national origin" may not be counted against him. |
the sum of the legislative history relevant in this case, the conclusion is inescapable
that the EEOC's construction of 703 (h) to require that employment tests be job
related comports with congressional intent.*
On the contrary, "the conclusion is inescapable" that "the EEOC's construction
of 703 (h)," is contradicted by the difference between the Tower amendment that
failed and the one that succeeded.
Court had the marvelous opportunity, because of the Myart case, to see
how its interpretation of Title VII would have been received by the Senators who
made the law. This opportunity might as well not have existed. The Court heard
little, understood less, and distorted much of what occurred in the debate.
Senate had the corresponding opportunity, because of the Myart case, to
see how Title VII might be interpreted. Senators on both sides denounced the Myart
decision. But neither side undertook a careful examination of the title's handful
of "unlawful employment practices," to see whether a potential Myart-like
implication might be lurking there. No one seemed to notice that a-2 was worded
differently in proponents' Interpretative Memorandum, and that both a-2 and c-2
were regularly omitted in summaries of the title. On these important matters,
did the Senate know what it was doing?
the Court is about to conclude, here are the main points of its interpretation,
with their final status:
Unlawful deprivation of employment opportunity because of race occurs when job
requirements, though not intended to discriminate, have different racial results,
which can be ascribed to racial disadvantage:
initially supported by Gaston
and by the language of 703 a-2;
suspect, as requiring substantial changes
and additions to a-2;
devoid of legal authority, since it forces a-2 to contradict
itself; contrary to a-2 as understood (erroneously?) by its enactors.
Such employment requirements, when not demonstrably related to job performance,
asserted by the Court;
asserted re ability tests by the
EEOC's interpretation of 703 h;
neither expressed or shown to be implied by
contrary to h as understood by its enactors.
Nothing in the Act precludes the use of testing or measuring procedures; obviously
they are useful. What *Congress has forbidden* is giving these devices and mechanisms
controlling force unless they are demonstrably a reasonable measure of job performance.
*Congress has not commanded* that the less qualified be preferred over the better
qualified simply because of minority origins. Far from disparaging job qualifications
as such, *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.
Throughout the opinion, the Court's views have masqueraded as a Voice of Congress,
apparently loud and conclusive in the judicial ear. Reading the Senators' actual
words only reinforces the view that the Court should have turned off the imaginary
voice, and attended to the statute.
disputed portion of 703 h is simple and direct, its clarity aided by the amendment
it replaced. 703 a-2, admittedly problematic and ambiguous as written, is forced
by the Court's interpretation to contradict itself. Had the Court realized this,
it would (one hopes) have ruled for the Power Company, which had not violated
Title VII's bans on racial discrimination. By explaining its rejection of plaintiffs'
arguments based on a-2, it would have alerted Congress to adjust a-2's language.
The judgment of the Court of Appeals is, as to that portion of the judgment appealed
Justice BRENNAN took no part in the consideration or decision of this case.