SCOTUS To Review “Disparate Impact” Travesty of Griggs versus Duke Power

The US Supreme Court doctrine of “disparate impact” first arose in the 1971 Griggs versus Duke Power Company case, in which SCOTUS ruled that Duke Power Company could not require a high school diploma and a minimum IQ from their successful job applicants.  The history of the doctrine and the case from which it sprang is explained very well in THIS somewhat technical article by Amy Wax, which appeared in the pages of the National Affairs quarter back in 2012.  Here is an excerpt from that article:

At issue in Griggs was the requirement that employees hired into service jobs at the power company’s facilities had to possess a high-school diploma and achieve a minimum score on an IQ test.  The plaintiffs argued that these rules disqualified too many black job applicants, thereby violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

The Supreme Court agreed, ruling that job criteria with an adverse or exclusionary effect on minorities — even if those criteria were “neutral on their face, and even neutral in terms of intent” — could violate the Title VII ban on race discrimination in hiring.  The Court further stipulated that employers could escape liability for “disparate impact” only if they demonstrated that their adverse selection practices had “a manifest relationship to the employment in question” or that they were justified by “business necessity.”  In examining the criteria for positions at the Duke Power Company, the Court found insufficient evidence to satisfy the job-relatedness defense, and so ruled against the utility.

According to the Griggs Court, the purpose of the newly established disparate-impact rule was to “achieve equality of employment opportunities” by removing “built-in headwinds” and “barriers that had operated in the past” to impede minorities’ workplace advancement.  In Griggs and several subsequent cases, the Court has repeatedly stressed that the doctrine’s goal is fully consistent with a competitive meritocracy — one in which businesses remain free to seek out, hire, and promote the best and most productive workers regardless of race and to adopt personnel practices that best achieve that result.  The purpose of the rule, according to the Court, is not to enact affirmative-action or group quotas for employment, but simply to eliminate arbitrary disadvantages suffered by minority job-seekers.

Despite this assertion, the development of the Griggs doctrine has proved anything but friendly to meritocratic objectives.  Although the Supreme Court has never held that all workplaces must be racially balanced, lower courts and the Equal Employment Opportunity Commission (EEOC), which is charged with administering Title VII, have firmly embraced the presumption that the racial profiles of particular workplaces should reflect the racial composition of the broader population.

The Griggs case was decided by Justices Harry Blackmun, Thurgood Marshall, Byron White, Potter Stewart, John Harlan, William O. Douglas, Hugh Black, and Chief Justice Warren Burger, who wrote the opinion for the 8/0 unanimous majority.  Justice William Brennan took no part in the deliberations or in the decision.

Now there is a new case in which disparate impact is the linchpin, and the Supreme Court has agreed to take the case on appeal.  The designation is Texas Department of Housing and Community Affairs versus The Inclusive Communities Project, Incorporated, and  Nicole Flatow of ThinkProgress has written a brief article about it.  According to Flatow, the case:

… concerns the placement of subsidized low-income housing in Dallas.  A community group that connects individuals with this housing under the federal Section 8 program for housing subsidies argued in a lawsuit that the state was approving developer tax credits for such housing only in low-income and minority-heavy neighborhoods, while denying Low-Income Housing Tax Credit applications in majority-white and majority-Hispanic neighborhoods.

This is an important case, as any ruling that effectively rescinds the disparate impact doctrine will have far reaching effects throughout the American economy.  And it is generally assumed that because SCOTUS has granted cert (agreed to take the case), there must be at least four justices who are in a frame of mind to overturn or rein in the “disparate impact” doctrine.  I certainly hope that view does not turn out to be wistful thinking.

The full article is available on the ThinkProgress website, HERE.