A group of employees who worked for the Duke Power Company were upset about the promotion policies of their employer, Dan River steam station, a power-generating plant owned and operated by the Duke Power Company of Draper, North Carolina. The requirements for advancement included a high school education or successful completion of a standardized general education examination. The argument made by the petitioners was that neither of these requirements was actually related to doing an effective job at the plant; that both of the requirements had the adverse effect of eliminating black employees from hiring and promotions in a proportion that was at a substantially higher rate than white employees; and the positions that required the diploma or the test were filled only by white employees and had been dominated by white employees as part of a deliberate strategy to exclude blacks. The case went to the district court which found that the company had indeed followed a deliberately discriminatory hiring and promotion process that was consciously designed to exclude blacks from the higher-paying positions. The plant had five departments: labor, coal handling, operations, maintenance, and the laboratory. Blacks worked exclusively in the labor department, which meant that all the high-paying jobs in the other departments were occupied by whites. Promotions in all departments were based on seniority alone. Starting in 1955 a high school diploma was needed for an initial assignment to any department except labor. After the Civil Rights Act went onto effect in 1965, the company eliminated its deliberately discriminatory hiring policies. However, at that time, a high school diploma became a requirement for moving out of labor into any of the higher-paying departments. On July 2, 1965, the date that the Civil Rights Act went into effect, the company installed a new policy. The new policy required applicants to any department but the Labor Department to achieve a satisfactory score on two aptitude tests and to have a high school diploma. Later the requirement was modified somewhat to allow a transfer from the Labor Department or the Coal Department to a higher-paying department based on test scores alone. The district court ruled that the Civil Rights Act was not designed to pass judgment on past transgressions. The appeals court believed that the case should be decided based on the intent of the employer rather than on the actual results and, finding no intent to discriminate on the part of Duke, rejected the employees’ charge of discrimination. At that point the case landed in the lap of the United States Supreme Court.

The Court’s Opinion:

We granted in 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 or transfer to jobs when:

 (a) Neither standard is shown to be significantly related to successful job performance . . . All the petitioners are employed at the Company’s Dan River Steam Station, a power generating facility located at Draper, North Carolina . . . The 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 . . . Promotions were normally made within each department on the basis of job seniority. Transferees into a department usually began in the lowest position.
In 1955 the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer to the Coal handling to any “inside” department (operations, maintenance, or laboratory) . . . 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...........

Question 

1. The test used in Griggs v. Duke Power established the Disparate Impact test in employment discrimination law. The test emerged from within a race discrimination case. Can you imagine how the test might apply in a gender discrimination case? Explain.
2. The District Court did not believe that the Civil Rights Act was designed to correct past discrimination.
What developments in the law since then have proven this position incorrect? Explain.
3. The obvious, open, and deliberate disparate treatment that was applied by Griggs in this case is virtually unheard of today in race discrimination cases.
Is this also true in gender discrimination? Explain.
4. The obvious, open, and deliberate disparate treatment that was applied by Griggs in this case is virtually unheard of today in race discrimination cases. Is this also true in religious discrimination? Explain.
5. The obvious, open and deliberate disparate treatment that was applied by Griggs in this case is virtually unheard of today in race discrimination cases. Is this also true in age discrimination? Explain.
6. What is the business necessity defense that is mentioned in the Griggs v. Duke Power case? Explain.
7. Should intent to discriminate be in issue in a case of disparate impact? Explain.
8. Sometimes the disparate impact test is referred to as the “disproportionate exclusionary impact” doctrine. Examine this phrase and demonstrate how it might be a more accurate designation than “disparate impact.” Explain.
9. How does the proof needed in a disparate impact case differ from the proof needed in a disparate treatment case? Explain.
10. Explain what the Court meant when it wrote that “What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.”