More Than “Mellifluous but Hollow Rhetoric”*
Griggs v. Duke Power and the Disparate Impact Theory of Race Discrimination
Mark Dorosin**
The Supreme Court’s landmark 1971 decision in Griggs v. Duke Power signified a zenith
in our nation’s ongoing struggle to end employment discrimination. The decision in favor of the
African-American workers recognized the institutionalized nature of race discrimination in
employment, as well as the intent and scope of the Civil Rights Act of 1964 to root out such
discrimination. At issue in Griggs was not the kind of obvious discriminatory treatment
motivated by overt racial animosity, but the more subtle and harmful effects of ostensibly race
neutral employment policies and practices that in fact discriminated against African Americans
or members of other protected classes. By insisting that the law address implicit forms of
discrimination, civil rights advocates ensured that courts would recognize that the American
workplace was not a tabula rasa upon the adoption of the Civil Rights Act, but that any
meaningful legal analysis of racial discrimination must consider the historical impact of decades
of unequal employment treatment of African-American workers.
When Title VII became effective in 1965, Duke Power Company had a rigidly segregated
workforce. Company policy expressly limited African-Americans to employment solely in the
“labor department,” which included the lowest paid and lowest status positions in the plant (the
workers referred to themselves as “janitors”). After the adoption of Title VII, the company
announced the desegregation of its workforce and abandoned its expressly racialized
employment policies. In their place, Duke adopted employment testing and education criteria
that required new employees for any position other than those in the labor department to have
both a high school diploma and a passing grade on two general standardized tests, neither of
which was developed by Duke Power or designed for the specific skills involved at the plant. An
1 existing policy also required a high school diploma for any employee seeking to transfer from
the labor department or the coal handling department1 to any other department in the plant.
After white workers in coal handling complained that the diploma requirement was too
onerous, Duke Power amended the policy to allow transfers for employees who achieved
sufficient scores on the two standardized tests. The disparate impact of these tests on AfricanAmerican workers allowed the company to accommodate its low-level white employees and
prevent African-American workers from advancing beyond the labor department. Duke Power
continued to provide opportunities for (all white) employees in every other department in the
plant to transfer and advance without a diploma and without taking any test.2
In March 1966, longtime NAACP activist and Duke Power employee Willie Boyd, along
with 13 other African-American workers at the company’s Dan River Plant, signed a letter
requesting to be promoted out of the labor department. Following some unsatisfactory meetings
with management, in which Duke Power explained that the policy applied to both black and
white workers and ensured that the company had an effective workforce, the workers filed a
formal complaint to the Equal Employment Opportunity Commission (EEOC).3
The EEOC complaint contained three primary charges, that Duke Power: 1) restricted
African-American workers to low skill/low wage positions; 2) applied company policies and
rules for promotion and transfer in a discriminatory manner; and 3) maintained racially
segregated facilities (e.g. locker rooms, water fountains, restrooms) for workers. At the time, the
EEOC’s power was limited to investigation and conciliation and in response to the complaint,
interviewed the workers, visited the Dan River plant, and attempted to convince the company to
voluntarily alter its employment practices.4 Although Duke Power largely resisted the EEOC’s
efforts, the company made some changes in its practices in an effort to blunt some elements of
2 the workers’ complaints (and perhaps in anticipation of possible litigation). First, the company
officially desegregated all facilities. Then, in August 1966, it promoted the first AfricanAmerican employee from the labor department to coal handling. Willie Boyd and his coworkers, however, remained determined to advance the claims they had articulated in their Title
VII complaint. On September 6, 1966, Boyd and his co-workers, represented by Julius
Chambers and attorneys from the NAACP Legal Defense Fund (LDF), filed suit in federal
district court in Greensboro, North Carolina.5
Chambers and his colleagues at his Charlotte, North Carolina, law firm are widely
recognized as the most influential private civil rights lawyers in the nation’s history. In addition
to Griggs, the firm won landmark civil rights decisions from the U.S. Supreme Court in Swann v.
Charlotte-Mecklenburg (the seminal school busing desegregation case), Albermale Paper v.
Moody (building on Griggs to expand the scope and effect of Title VII’s disparate impact
protection), as well as dozens of other groundbreaking school desegregation, public
accommodations, employment discrimination and voting rights lawsuits. Their firm was the first
racially integrated firm in the South and its commitment to furthering civil rights and fighting
race discrimination was well-known to both supporters and opponents. In 1971, their offices
were destroyed by arsonists. By the time Griggs was filed, and as part of their ongoing
collaboration with LDF, the firm was focused on attacking employment discrimination and in
ensuring that courts fulfill the intent and promise of Title VII.6
Chambers himself was born and raised in rural North Carolina and experienced the
realities of the Jim Crow South first hand. He was determined to become a lawyer after
witnessing the inability of his father, an auto mechanic, to hire a lawyer to collect debts owed to
him by white customers. Chambers attended the North Carolina College for Negroes (now
3 North Carolina Central University, where decades later he would later serve as Chancellor) and
the University of North Carolina School of Law, where he was the first African-American editor
of the North Carolina Review. After graduation, Chambers was selected by Thurgood Marshall
for the first internship offered by LDF. When he returned to North Carolina, he was committed
to furthering the civil rights agenda in his home state.7
Chambers and his colleagues recognized the particular challenges in litigating Griggs.
The theory of the case — that the disparate racial impact of purportedly facially neutral practices
violated Title VII — was more subtle and sophisticated than the overt or blatant disparate
treatment type cases. In addition, Title VII actually authorized the use of tests in employment
decision-making, provided tests were “professionally developed,” and “not designed, intended or
used to discriminate.” Finally, the plaintiffs would have to demonstrate that the Act permitted
the court to look at evidence related to discriminatory patterns and practices that predated the
adoption of the statute.
The trial in Griggs was held in February 1968, before Judge Eugene Gordon, who had
been appointed to the bench by Lyndon Johnson in 1964. Pursuant to Senate tradition, Gordon’s
nomination required the imprimatur of the state’s two senators, which at the time were anti-civil
rights stalwarts Sam Ervin and Everett Jordan. As such, Chambers and his clients were not
optimistic about their prospects at trial and worked to ensure a complete record for the expected
appeal.8 At the outset, this included showing that Duke Power’s testing and diploma
requirements were unrelated both to the jobs at issue and to employees’ capacity to perform
those jobs. It was thus very helpful when Duke Power’s own witnesses conceded that the tests
were not specifically job-related. As for the diploma requirement, one executive stated “there is
nothing magical about it, and it doesn’t work all the time, because you can have a man who
4 graduated from high school, who is certainly incompetent to go up, but we felt this was a
reasonable requirement.” The testimony of the company’s expert witness on employment testing
insisted the tests were valid under Title VII because they were designed to measure “whether or
not a person has the intelligence level and mechanical ability level that is characteristic of a high
school graduate,” and was therefore a legitimate alternative to the diploma requirement.9
These seemingly critical admissions reflected Duke Power’s contention that Title VII did
not require that tests controlling hiring or promotion decisions be related to the jobs sought.
Duke Power’s position notwithstanding, the legislative history of Title VII at least allowed for a
different interpretation. During the debates over Title VII, many legislators were concerned
about the law being used to prohibit any testing which demonstrated a racially disparate result,
even if the tests reflected legitimate necessary job qualifications. While the final compromise
language of the Act was not explicit on the question of job-relatedness, the plaintiffs pointed to
detailed legislative history and debate around this issue to argue that the intent of the Act was
clearly to limit employers to the use of valid, job-related tests. The ultimate determination of this
issue would become a critical element of the Griggs ruling.
Judge Gordon expressly rejected the argument that an employer must show that the tests
used were specifically related to the particular jobs at issue, noting that “Nowhere does the Act
require that employers may utilize only those tests which accurately measure the ability and
skills required of a particular job.”10 Regarding the specific tests used by Duke Power, the
Court elaborated:
The two tests . . . were never intended to accurately measure the ability of an employee to
perform the particular job available…. [the tests] measure general intelligence, i.e. one’s
ability to understand, to think, to use good judgment….these qualities are general in
nature and are not indicative of a person’s ability to perform a particular task.
Nevertheless, they are qualities which the defendant would logically want to find in his
employees. The Act does not deprive him of the right to use a test which accurately,
5 reliably, and validly measures the existence of those qualities in an applicant for initial
employment or promotion.11
The other key issue that the plaintiffs struggled with before Judge Gordon was the
relevance and impact of evidence of Duke Power’s discriminatory actions prior to the effective
date of the Act. An essential element of the plaintiffs’ disparate impact claim was that Duke
Power’s post-Act testing and educational requirements permanently locked African-American
workers into the subordinate positions they occupied as a result of overt pre-Act discriminatory
treatment. Chambers and the other attorneys recognized it would be extremely difficult to
demonstrate how Duke Power’s ostensibly neutral policies effectively discriminated against their
clients if the court refused to consider the history of discrimination at the company and its role in
creating the racially stratified work place that the post-Act policies maintained.
Despite the plaintiffs’ best arguments, the Court refused to consider any pre-Act conduct
by Duke Power, thereby foreclosing a fundamental aspect of the disparate impact claim. Ruling
against the admission of evidence of pre-Act discrimination, Judge Gordon reflected that, “It is
just inconceivable to me that it would have value in deciding the issue of whether or not [one]
was violating the Act, after its effective date that you go back and show what he was doing
before prior to that date.”12 The court’s opinion grounded this conclusion in an analysis of the
Act’s legislative history, which it said was “replete with evidence” that the Act was to be applied
prospectively, reflecting Congress’ realization of “the practical impossibility of eradicating all
consequences of past discrimination.”13
Once the Court ruled that evidence of pre-Act conduct would not be considered, its final
decision on the plaintiffs’ claims was a foregone conclusion. While acknowledging that the
African-American employees suffer inequities in the workplace as a result of Duke Power’s past
discriminatory conduct, it found that the company had discontinued that conduct when Title VII
6 became effective, and that its hiring and promotion policies since that time were “fairly and
equally administered.”14 Despite the concession that the effects of Duke Power’s past
discrimination have been carried over into the post-Act workplace, the Court insisted that such
evidence was irrelevant to its consideration and unreachable by Title VII. All that Title VII
required, according to the Court, was that Duke Power had eliminated the overt, intentional
discriminatory policies and practices that characterized the workplace prior to the Act going into
effect.
The arguments, evidence and underlying theory of disparate impact discrimination was
decisively rejected by Judge Gordon. He went even further, ironically lauding the company’s
promotion policies as an equitable way to ensure that each employee had an equal chance to
move up.
If the relief requested by the plaintiffs is granted, the defendant will be denied the right to
improve the general quality of its workforce or in the alternative will be required to
abandon its departmental system of classification and freeze every employee without a
high school education in his present job without hope for advancement.15
Convinced that the facts of the case, recent positive legal rulings, and their interpretation
of Title VII made a compelling argument to address disparate impact discrimination, the
plaintiffs appealed the case to the Fourth Circuit Court of Appeals. Prior to the three judge
appellate panel issuing its ruling in January 1970, Duke Power promoted three AfricanAmericans, each of whom had his high school diploma, out of the labor department. In addition,
Willie Boyd, a primary complainant in both the EEOC action and lawsuit, had attained his GED
and been promoted to a manager position in the labor department.16 The appeals court took
pains to point out these changes in its opinion, which included some substantive victories for the
plaintiffs but upheld the essence of Judge Gordon’s ruling. The Court divided the plaintiffs into
three groups based on their education levels and hiring dates and considered each in turn. First,
7 the Court held that case was moot as to any plaintiffs that already had a high school degree and
had either been or were eligible for promotion under the current policies. The Court also ruled
that there was no evidence of discrimination against any employee without a high school degree
who was hired after the imposition of purportedly racially neutral educational requirements.
Finally however, the Appeals Court reversed Judge Gordon and found that employees without a
degree or its equivalent who had been hired before the adoption of the policy had been
discriminated against in violation of Title VII.17 A compelling and eloquent dissent by Judge
Simon Sobeloff, combined with the partial reversal of the District Court, encouraged the
plaintiffs and the LDF to take the case to the U.S. Supreme Court, a decision that would lead to
the ultimate vindication of their case and of disparate impact theory in general.
The plaintiffs’ partial victory at the Fourth Circuit resulted from the Court’s limited
adoption of the plaintiffs’ argument about the relevance of pre-Act discrimination. According to
the Court, the lower court’s ruling that Title VII does not reach the continuing effects of past
discrimination
is in conflict with other persuasive authority and is disapproved. While it is true that the
Act was intended to have prospective application only, relief may be granted to remedy
present and continuing effects of past discrimination. (emphasis added).18
In reaching this conclusion, the Court relied on several forward-looking Title VII decisions from
the Fifth Circuit Court of Appeals that had been decided since the district court’s ruling in
Griggs. In addition, the court quoted from Quarles v. Philip Morris, Inc., a decision won by the
LDF from the United States District Court in the Eastern District of Virginia, which eloquently
stated, “It is also apparent that Congress did not intend to freeze an entire generation of Negro
employees into discriminatory patterns that existed before the Act.”19
8 Despite this more expansive reading of the Act, the Fourth Circuit limited its application,
noting that it only afforded relief to those (six) plaintiffs who lacked a high school education and
who were hired prior to the institution of the diploma requirement for transfer. Moreover, for
these employees, the testing requirements also were deemed invalid. However, the Court refused
to extend this analysis to the four plaintiffs (or any other African-American employees) hired
after the educational and testing requirement were imposed. In reaching the conclusion that
these plaintiffs were not victims of discrimination, the Court focused on the validity of the
company’s testing and educational requirement and its relation to the underlying issue of intent.20
On this point, the Fourth Circuit echoed and upheld the district court’s analysis of the
statutory language regarding testing and Duke Power’s proffered justification for instituting the
promotion prerequisites. Qualifying its earlier language regarding workers hired under overt preAct discriminatory policies, the Court stated that
it seems reasonably clear that this requirement did have a genuine business purpose and
that the company initiated the policy with no intention to discriminate against Negro
employees who might be hired after the adoption of the educational requirement.21
Despite a well-developed disparate impact theory propounded by Chambers and the LDF
lawyers in this and other cases, the Court’s analysis was limited to providing relief to employees
who had also experienced intentional discrimination. Put another way, the court would only
recognize disparate impact discrimination against workers who had previously been subject to
the more typical disparate treatment. This narrow interpretation of the Act could necessarily
only provide very limited relief—as it did in Griggs—and never reach the institutionalized and
ongoing patterns of discrimination that LDF and other civil rights activists hoped to remedy.
Finally, the Fourth Circuit affirmed the district court’s conclusion that the tests
themselves were valid and consistent with the statutory requirements. Following its own detailed
9 review of the legislative history, the Fourth Circuit concluded that tests used must have some
“genuine business purpose,” but they do “not have to be job-related in order to be valid” under
the Act.22 In so ruling, the Fourth Circuit not only rejected the plaintiffs’ interpretation of the
legislative history of the Act, but it also rejected the EEOC’s established and detailed guidelines
and regulations, which provided that tests must be related to the specific jobs in question. The
Court was not persuaded by the agency’s regulations, and in holding that its own assessment of
the legislative history was more accurate than the EEOC’s, ignored the well-established
precedent that the interpretation of a statute by the administrative agency charged with enforcing
it is entitled to substantial deference.23
Perhaps the most important part of the Fourth Circuit’s decision was Judge Sobeloff’s
eloquent and forceful dissent. A former U.S. Attorney from Maryland and Solicitor General (he
argued on behalf of the government in Brown II), Sobeloff was appointed to the Court of
Appeals in 1955, although opposition from Southern senators delayed his confirmation until
1956. Sobeloff rose to Chief Judge two years later. As a lifelong civil rights advocate deeply
committed to the struggle against race discrimination, Sobeloff’s dissent effectively and
succinctly summarized the LDF’s arguments and lent his considerable prestige to the possibility
of securing review by the U.S. Supreme Court.
The importance of the case to Judge Sobeloff was made clear in the opening sentence of
his dissent. “The decision we make today is likely to be as pervasive in its effect as any we have
been called upon to make in recent years.”24 He then went on to challenge the majority’s narrow
view of the plaintiffs’ disparate impact theory. “Overt bias, when prohibited, has ofttimes been
supplanted by more cunning devices designed to impart the appearance of neutrality, but to
operate with the same invidious effect as before.”25 To Sobeloff, the statutory language clearly
10 encompassed pure disparate impact, without the indirect, pre-Act intent the majority built into its
ruling. When an employer’s policy creates a disparate impact, the state of mind or intent of the
employer is not relevant. Duke Power’s good faith, which the majority highlighted, should not
have been part of the court’s consideration. “The critical inquiry is business necessity and if it
cannot be shown that an employment practice which excludes blacks stems from legitimate
needs the practice must end.”26
This conclusion necessarily led Sobeloff to challenge both his colleagues’ reading of
Title VII’s legislative history in relation to testing, as well as their dismissal of the EEOC’s
Guidelines on Employment Testing Procedures. The Guidelines re-affirmed the position that a
test cannot be valid under the Act unless it measures the required knowledge or skills of the
particular job the applicant is seeking. According to Sobeloff, this interpretation of the testing
language was the only interpretation possible that was consistent with the statute’s fundamental
anti-discrimination purposes. The majority’s holding, he argued, would allow employers to
continue discriminatory practices by utilizing “any test that favors whites and is irrelevant to
actual job classifications.”27
Sobeloff urged that Title VII not be used to “freeze” pre-Act patterns of race
discrimination, calling instead for additional review of the Fourth Circuit’s decision.
This case deals with no mere abstract legal questions. It confronts us with one of the
most vexing problems touching racial justice and test the integrity and credibility of the
legislative and judicial process. We should approach our task of enforcing Title VII with
full realization of what is at stake.28
After the Fourth Circuit’s ruling, LDF leaders questioned whether to take Griggs to the
Supreme Court. Specifically, there were concerns about the factual record in that some of the
original plaintiffs had been promoted, others had secured relief from the Fourth Circuit decision,
and that both the district court and the Fourth Circuit had found the evidence of Duke Powers’
11 “good faith” so compelling. Ultimately, however, in light of Judge Sobeloff’s powerful dissent
and new, even stronger guidelines on testing and job relatedness from the EEOC, LDF leaders
decided to push forward with the appeal, and the case was argued before the Supreme Court on December
14, 1970. Briefs in support of the LDF were filed by the New York Attorney General, the United
Steelworkers of America, and the U.S. Department of Justice. Duke Power was supported by the U.S.
Chamber of Commerce. The briefs and arguments before the Court generally echoed and refined
the positions the parties had argued below. Jack Greenburg, arguing on behalf of LDF, focused
on the revised EEOC guidelines and Judge Sobeloff’s dissent. Duke Power took a more
aggressive stance, raising the specter of racial quotas and the mandatory promotion of
unqualified minority employees, suggesting that in challenging the company’s neutral policies,
the plaintiffs’ were in fact seeking preferential treatment.29
On March 8, 1971, the U.S. Supreme Court issued its opinion in Griggs v. Duke Power.
Chief Justice Burger, writing for a unanimous court,30 drew heavily on the arguments and
reasoning of Judge Sobeloff’s dissent. “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” (emphasis added). 31 In evaluating
an employer’s purportedly neutral practices, the Court zeroed in on the question of the jobrelatedness. “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.”32
The Supreme Court also clearly distinguished disparate impact from disparate treatment,
noting that “good intent or the 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 capability.” The focus of the Act was not the motivation behind
the challenged employment practices, but their consequences. The Court’s opinion went on to
12 accord the EEOC the traditional deference to which the enforcing agency is usually entitled, and
definitively endorsed its guidelines on testing. Finally, the opinion briefly addressed the
defendant’s implied claim that this broad interpretation of the Act would lead to racial quotas.
“Congress did not intend Title VII, however, to guarantee a job to every person regardless of
qualifications. . . .[t]he 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.”33
The Court’s opinion was a forceful endorsement of the sweeping vision of Title VII that
LDF and other civil rights advocates recognized as vital if the Act was to reach the patterns and
practices of institutionalized race discrimination in employment. The disparate impact analysis
at the core of the opinion is a broad and in some regards subtle legal concept that recognizes the
similarly more subtle, but no less malignant forms of racism that were developed when more
blatant discriminatory actions became illegal (and even later, socially unpalatable). After
Griggs, the racially adverse impact of a wide range of employment practices would come under
scrutiny in addition to testing, including recruitment, seniority systems, training, promotion,
training opportunities, and job classifications.
Implicit in the holding, and perhaps most compelling about the Griggs decision, is its
recognition of the historical legacy of racism, slavery and Jim Crow segregation. In assessing
the claims of Willie Boyd and his co-workers, the Court refused to limit its vision to the
company’s current actions or even those taken since the adoption of Title VII. Instead, it insisted
on giving due consideration of the pernicious and ongoing effects of centuries of discriminatory
treatment and to the obligation of the courts and the law to address those effects. The visionary
theory and strategy of the civil rights activists and advocates who fought for Griggs and the
related disparate impact cases of that era created a powerful tool to challenge not merely
13 incidents of racist conduct, but culturally institutionalized and entrenched discriminatory
patterns.
CODA
The continuing vitality of Griggs and of the disparate impact theory of employment
discrimination now faces its most direct challenge. On April 22, 2009, the U.S. Supreme Court
heard oral argument in Ricci, et. al. v. DeStefano, a case concerning the racially disparate effects
of a test used to evaluate applicants for promotion in the New Haven, Connecticut fire
department. The case in many ways resembles Parents Involved in Community Schools v.
Seattle School District No. 1 (PICS), the 2007 case in which the Court relied on the seminal
language and analysis of groundbreaking school desegregation precedents to restrict race-based
remedies for the continuing impacts of segregation in public schools. Like the plaintiffs in PICS,
the plaintiffs alleging racial discrimination in Ricci are the white firefighters, and the essence of
their claim is that the city’s efforts to abide by Title VII and its intent—to eliminate the
continuing impacts of racial discrimination in employment—is itself racial discrimination in
violation of Title VII and of the Fourteenth Amendment.
Pursuant to its promotional policies and a contract with the firefighters’ union, the New
Haven Fire Department utilized exams to determine promotions for captain and lieutenant
positions in the department. The results of the tests administered in 2003, if accepted by the
department, would have meant that no African-Americans would be eligible for promotion. In
light of this racially significant outcome and the City’s potential liability under a disparate
impact theory (as first recognized in Griggs), the City delayed any employment actions based on
the results and conducted an administrative review of the test’s validity. The City ultimately
refused to certify the results, and no promotions were made.34
14 Following the City’s decision not to certify the test results, a group of white (and one
Latino) firefighters who scored well on the exams sued the City, alleging that its refusal to
promote them was racial discrimination in violation of Title VII and the Equal Protection Clause.
On cross-motions for summary judgment, the district court granted the City’s motion, agreeing
that the City did not need to certify the results because doing so could subject it to litigation for
violating Title VII’s disparate impact prohibition. “The intent to remedy . . . disparate impact . . .
is not equivalent to intent to discriminate against non-minority applicants.”35 The Court also
rejected the plaintiffs’ claims that the city was required to demonstrate that the tests were
presumptively invalid (i.e. not sufficiently job related) before it could refuse to certify the results.
On appeal, the Second Circuit at first summarily affirmed the district court’s opinion, but
issued a subsequent per curiam opinion that concluded that the City could not be held liable for
its refusal to certify the results of the tests because it was attempting to fulfill its obligations
under Title VII. Three days later, the Circuit voted 7-6 to deny rehearing en banc, with all six
dissenters signing an opinion that questioned the panel’s judgment and highlighted the issue for
the Supreme Court.36 The oral argument in Ricci focused in many ways on the same issues the Court looked at
in Griggs. While much of the case has focused on the employer’s responsibility under Title VII
regarding the use and validity of employment testing, at a more fundamental level is the issue of
the continuing legacy of race discrimination in America and the law’s ability—or more
accurately, its willingness—to address that legacy and its ongoing impact. The theme of the
comments of the conservative justices during the Ricci argument echoed those made in their
hearing of Northwest Austin Municipal Utility District No. 1 v. Mukasey (concerning the
constitutionality of certain provisions of the Voting Rights Act) and their opinion in PICS. The
15 Court’s conservative block, led by Chief Justice Roberts, are pushing a legal analysis based on a
completely ahistorical view of race discrimination and its continuing social and economic
impacts or one that, if it acknowledges our racialized history at all, concludes that we have
completely transcended it. These Justices argue, then, that race-based or race conscious
remedies are no longer needed (if they ever were) and in fact constitute illegal discrimination
against the white majority. Just as PICS inverted and subverted the history, language and
continuing vitality of the Court’s groundbreaking desegregation jurisprudence first established in
Brown, civil rights advocates are justifiably concerned that the Court may use Ricci and,
perversely, the anti-discrimination language and history of Title VII to strike a fatal blow to the
legacy of Griggs and the ability to combat the inequities in employment and economic
opportunity that persist today.
*Discussing the significance of the disparate impact theory of race discrimination, Judge Simon Sobeloff wrote, ”On
this issue hangs the vitality of the employment provisions of the 1964 Civil Rights Act: whether the Act shall remain
a potent tool for equalization of employment opportunity or shall be reduced to mellifluous but hollow rhetoric.”
Griggs v. Duke Power, 420 F.2d 1225, 1238 (4th Cir. 1970) (Sobeloff, J., dissenting).
** Senior Managing Attorney, UNC Center for Civil Rights, Chapel Hill, NC. The author would like to thank his
colleagues, Sarah Krishnaraj, Ashley Osment, and Leah Aden for their insights and assistance in editing the
manuscript.
1
The coal handling department was the unskilled, all-white job classification just above the labor department.
The lowest paid white worker in coal handling was paid more than the highest paid African-American in the
labor department.
2
Griggs v. Duke Power, 292 F.Supp. 243, 245 (M.D.N.C. 1968).
3
Robert Samuel Smith, Race Labor & Civil Rights (Baton Rouge: LSU Press, 2008), 86-87.
4
The EEOC’s power to bring lawsuits in the Commission’s own name on behalf of employees was added in the
1972 amendments to Title VII. 5
Griggs, 292 F.Supp. at 88-90, 113.
6
Davison M. Douglas, Reading, Writing & Race: The Desegregation of the Charlotte Schools (Chapel Hill: UNC
Press, 1995) 108-9.
7
Smith, at 96-98.
8
Id., at 118.
9
Griggs, 420 F.2d 1244-1245 (quoting testimony from the trial record).
10
Griggs, 292 F.Supp. at 250.
11
Id.
12
Smith, at 124 (quoting the transcript of the District Court hearing).
13
Griggs, 292 F.Supp. at 248.
14
Id.
15
Id.
16
Smith, at 144-5.
17
Griggs, 420 F.2d, at 1235-7. 16 18
Id., at 1230.
Id; Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 516 (E.D.Va. 1968).
20
Griggs, 420 F.2d, at 1231.
21
Id., at 1232.
22
Id., at 1235.
23
Id., at 1234.
24
Id., at 1237 (Sobeloff, J., dissenting).
25
Id., at 1238.
26
Id.
27
Id., at 1241.
28
Id., at 1248.
29
Smith, at 168-9.
30
The decision was 8-0. Justice Brennan had formerly represented Duke Power and recused himself from the case.
31
Griggs v. Duke Power, 401 U.S. 424, 430 (1971).
32
Id.
33
Id. at 431.
34
Ricci, et. al. v. Destefano, 554 F.Supp.2d 142 (Conn. 2006).
35
Id., at 157, quoting Hayden v. County of Nassau, 180 F3d. 42, 51 (2d. Cir. 1999).
36
Ricci v. Destefano, 530 F.3d 88 (2d Cir. 2008).
19
17