Griggs V. Duke Power Company (1971)

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Using intelligence testing for validating job applicants is a risky proportion. If the test cannot be generalized, it can be considered discriminatory under the Civil Rights Act of 1964. This is the most likely way most companies have replaced this practice of using credentials to qualify prospective employees (college degrees). Back in the 1970s, job applicants possessing college degrees were not as common as it is today. The correlative inferences that can be made from this form of credentialing have supplanted intelligence testing for job placement.  Which case in the corpus of American case law shifted the incentives away from companies using IQ tests? Arguably the pivotal case was Griggs V. Duke Power Company (1971).

An African-American employee at Duke Power Company, Willie Griggs, challenged the legality of the company’s “transfer policy”. Where an employee was required to pass two aptitude tests and have a high school diploma to transfer to a different department. The one exception is that this process was not required for the lowest paying jobs within the company. Griggs claimed that the Duke’s transfer policy violated Section VII of the Civil Rights Act 1964. Griggs’s case was initially dismissed by the district court. Citing that before the implementation of the act, the company did engage in discriminatory higher practices. As far as the court could tell all disparate hiring practices had been abolished by the company. After the court of appeals found no evidence hinting towards discrimination, the Supreme Court “granted certiorari” to Grigg’s case.

The U.S. Supreme court ruled in favor of Griggs. The court ruling that Duke Power’s transfer policy did violate Section VII. Neither the two aptitudes test nor the high school graduation requirement directly measured an employee’s capacity for job performance. Also, that both requirements prevented a “disproportionate number” of African Americans from advancing within the company. This may seem like a grand assumption to make, based upon the presented evidence.  After all, the company’s past conduct was not subject to statutory restrictions. Could the court be overgeneralizing the intent or actual impact of the employer’s hiring and promotion practices? Potentially. It’s hard to not view this case with some degree of bias after being aware of Duke’s past conduct. However, there is a greater underlying principle at play.

Section VII of the Civil Rights Act of 1964, directly addresses workplace discrimination. That expends on hiring and internal promotion policies. These statutory constraints on employers are presently enforced by the Equal Employment Opportunity Commission (EEOC). Section of the law also protects employees from retaliation for reporting instances of discrimination.  Per Justia, this section of the act is applicable to conduct that is even superficially neutral.

“…….A seemingly neutral policy of soliciting applications only from sources where all of the potential job candidates are of the same race could have a disparate impact. For example, if an employer has a policy of hiring only applicants who belong to a private country club that has an all-white male membership, this policy would have a disparate impact, adversely affecting minorities and women…..” (Justia).

Such consequences can be the byproduct of coincidence or other uncontrollable factors that the employer should not be held accountable for. One cannot control the demographics of who decides to pursue a career in engineering. It is an entirely different circumstance if the employer is aware of institutional features that skew preferable to one group over another.  This is purely speaking from overtly discriminatory laws and customs such as Jim Crow laws. The normative argument for equal opportunity is commendable but arguing for equality of outcomes is wholly misguided. Legally and philosophically. The courts are not an apparatus for advancing positive rights nor lofty social justice objectives. The Supreme Court justice pleaded to defend the law. Part of that entails ensuring the civil liberties under the Constitution are not violated. That is not to make any loft assumptions about the nature of the constitutionality of equal employment. Rather an aside about the proper philosophical role of the judicial branch.

Prior case precedence and the institutional culture of North Carolina in the early 1970s make convincing circumstantial cases that Duke could be fallible in this case. It would be an overextension to suggest that Duke Power Company was aware of the disparate impact of segregated schools. Even though such an inference would not be too outlandish. But previous case law would suggest that there was a divide between the quality of education received by white students and black students. Justice Burger directly cites this concern in his Supreme court opinion.

“…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 practices.

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. This 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. the United States, 395 U.S. 285, 89 S.Ct. 1720, 23 L.Ed.2d 309 (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. Congress 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 based on racial or other impermissible classification….” (Griggs V. Duke 1971).

The defining case reference by Justice Burger was the decision rendered in Gaston County v. United States (1969). This case details how implementing literacy requirements for voter eligibility violates the  Voting Rights Act (1965).  Such a prerequisite for voting was considered overtly discriminatory due to the “…  segregated and unequal schools..” throughout the state.  While private employment and voting rights are not necessary categorically congruent, they can be approximate as civil rights violations. Both have some statutory precedence for being protected under the letter of the law. Neither scenario is identical, there are some parallels, making the court’s decision soundly based on case law.  Gaston is the linchpin for the court’s justification. It is difficult to refute Grigg’s decision when it is backed by the Gaston case. Whether or not a company can be reasonably seen as responsible for the disparate outcomes qualification testing is a matter of further debate. Case law may signal to us that the company is responsible for the disparate outcomes. We could also stretch this argument a little further. There are claims that colleges are still dominated by Caucasian students. If this is true, proportionately more there are more whites with college degrees than African-Americans, could hiring applicants based upon having college degrees qualify as discrimination? This may be a sweeping and sloppy inference, but an interesting intellectual exercise to explore.