# Griggs v. Duke Power Co. *Supreme Court of the United States decision (1971) on employment tests and diploma requirements under Title VII* ***Griggs v. Duke Power Co.***, 401 U.S. 424 (1971), is a decision of the Supreme Court of the United States. It decided whether [[Title VII]] of the [[Civil Rights Act of 1964]] bars an employer from requiring a high school education, or a passing score on a standardized general intelligence test, for hiring into or transfer to jobs under three conditions. First, neither standard was shown to be significantly related to successful job performance. Second, both disqualified Black applicants at a substantially higher rate than white applicants. Third, the jobs had formerly been filled only by white employees.[^1] The case, No. 124, was argued December 14, 1970, and decided March 8, 1971.[^2] The Court reversed the Court of Appeals' judgment as to the portion appealed from.[^3] The opinion states that the Act "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." It adds that "The touchstone is business necessity."[^3] The Court construed the testing provision of [[Section 703(h)]] to require job-related tests. In doing so it quoted Senator Humphrey's endorsement of a substitute amendment offered by Senator Tower. That amendment "was adopted verbatim and is now the testing provision of § 703(h)."[^4] ## Who The petitioners were incumbent Black employees of Duke Power Company at its Dan River Steam Station. When the action was instituted, the Company had 95 employees at the station; 14 of them were Black, and 13 of those were petitioners.[^5] The petitioners brought the proceeding as a class action, a form Congress provided in Title VII for enforcing the Act.[^5] Jack Greenberg argued for the petitioners and George W. Ferguson, Jr., for the respondent. Lawrence M. Cohen appeared for the Chamber of Commerce of the United States as amicus curiae.[^6] Chief Justice Burger delivered the opinion of the Court. Justice Brennan took no part in the consideration or decision of the case.[^6] ## What The District Court found that the Company had openly discriminated on the basis of race in hiring and assigning employees at the plant before July 2, 1965. The plant had five departments: Labor, Coal Handling, Operations, Maintenance, and Laboratory and Test.[^7] Black employees worked only in the Labor Department. There, the highest-paying jobs paid less than the lowest-paying jobs in the other four departments, which employed only white workers.[^7] The challenged requirements were these: - **High school diploma.** In 1955 the Company required a high school education for initial assignment to any department except Labor. It also required it for transfer from Coal Handling to the "inside" departments. In 1965 the Company ended its policy of restricting Black employees to Labor and made high school completion a prerequisite for transfer out of Labor.[^8] - **Aptitude tests for new hires.** On July 2, 1965, the date Title VII took effect, the Company added a requirement for new employees. They needed satisfactory scores on two aptitude tests, in addition to a high school education, for placement anywhere but Labor.[^8] - **Test route for incumbents.** From September 1965, incumbents without a diploma could qualify for an inside job by passing the Wonderlic Personnel Test and the Bennett Mechanical Comprehension Test.[^8] The Court found that neither test was directed or intended to measure the ability to learn a particular job or category of jobs. The required scores approximated the national median for high school graduates.[^8] The opinion notes that the test standards would screen out approximately half of all high school graduates. That made them more stringent than the diploma requirement.[^9] The Court held that "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 capability."[^10] ## When - 1953: the employee later first assigned to an operating department began work in the Labor Department.[^9] - 1955: the high school requirement was instituted.[^8] - July 2, 1965: Title VII took effect. The Company added the aptitude-test requirement the same day.[^8] - September 1965: incumbents were allowed to qualify for transfer by passing the Wonderlic and Bennett tests.[^8] - August 24, 1966: the Equal Employment Opportunity Commission issued its *Guidelines on Employment Testing Procedures*.[^11] - August 1966: a Black employee was first assigned to an operating department, Coal Handling. This came five months after charges had been filed with the Equal Employment Opportunity Commission.[^9] - July 2, 1965, to November 14, 1966: the promotion data the Court cited showed the following. The share of promoted white employees who lacked a diploma was nearly identical to the share of non-graduates in the whole white work force.[^10] - August 1, 1970: the Commission published its *Guidelines on Employee Selection Procedures*, 29 CFR § 1607, 35 Fed.Reg. 12333.[^11] - December 14, 1970: the case was argued. It was decided March 8, 1971.[^2] ## Where The Dan River Steam Station is a power generating facility at Draper, North Carolina.[^5] The opinion cites 1960 census figures for North Carolina. It also cites *Gaston County v. United States* (1969), in which the Court recognized the inferior education Black residents of North Carolina had received in segregated schools.[^12] ## Why The Court stated the objective of Congress in Title VII. 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."[^13] The Court held that practices "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."[^13] The opinion also sets limits on the holding. It states: "Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications." It adds: "Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed."[^13] It concludes that "any tests used must measure the person for the job and not the person in the abstract."[^14] ## How **Proceedings below.** The District Court found that the Company's overt discrimination had ceased. It treated Title VII as prospective only.[^15] The Court of Appeals reversed in part, 420 F.2d 1225. It rejected the view that residual discrimination from prior practices was insulated from remedy. However, it held that the diploma and test requirements were permitted absent a discriminatory purpose. It also rejected the claim that disproportionate exclusion made them unlawful unless shown to be job related.[^15] The Supreme Court granted the writ on those claims, 399 U.S. 926.[^15] **The record on job relation.** The Court found that neither requirement had been shown to bear a demonstrable relationship to successful job performance. Both had been adopted "without meaningful study of their relationship to job-performance ability."[^10] A Company vice president testified that the requirements were instituted on the Company's judgment that they "generally would improve the overall quality of the work force."[^10] Employees who had not finished high school or taken the tests continued to perform satisfactorily and to make progress in the departments where the criteria were now used.[^10] **Intent.** The Company paid two-thirds of the tuition for high school training for undereducated employees. The Court treated this as suggesting a lack of discriminatory intent.[^16] It held, however, that "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation." It added 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."[^16] **Section 703(h).** The Company argued that § 703(h) specifically permitted its intelligence tests. That section authorizes "any professionally developed ability test" not "designed, intended or used to discriminate because of race."[^11] The Court noted that § 703(h) applies only to tests and not to the diploma requirement.[^11] The Equal Employment Opportunity Commission had interpreted the section to permit only job-related tests. The Court held that the enforcing agency's interpretation "is entitled to great deference."[^11] **Legislative history.** Section 703(h) was added in the Senate. Senators Case and Clark, the bill's floor comanagers, wrote in a memorandum that "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).[^17] Senator Tower's first amendment was opposed by Senator Case, who warned: "Discrimination could actually exist under the guise of compliance with the statute." That amendment was defeated.[^17] Two days later Tower offered a substitute amendment. Senator Humphrey endorsed it: "Senators on both sides of the aisle who were deeply interested in title VII have examined the text of this amendment and have found it to be in accord with the intent and purpose of that title" (110 Cong.Rec. 13724).[^4] The substitute was adopted. The Court concluded that the Commission's job-relatedness construction "comports with congressional intent."[^17] ## How many - At the station, 95 employees were on staff when suit was filed. Of these, 14 were Black, and 13 were petitioners.[^5] - The 1960 census showed that 34% of white males and 12% of Black males in North Carolina had completed high school.[^12] - In one case, the Equal Employment Opportunity Commission found that a battery of tests including the Wonderlic and Bennett tests was passed by 58% of whites and 6% of Black applicants.[^12] - The Company's test cut-offs would screen out approximately half of all high school graduates.[^9] ## Notes [^1]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — the question on which the writ was granted (¶1). https://www.law.cornell.edu/supremecourt/text/401/424 [^2]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (March 8, 1971) — docket No. 124; argued December 14, 1970; decided March 8, 1971. https://www.law.cornell.edu/supremecourt/text/401/424 [^3]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — business-necessity standard (¶11) and reversal of the judgment appealed from (¶22). https://www.law.cornell.edu/supremecourt/text/401/424 [^4]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424, 436 (March 8, 1971) — adoption of the Tower substitute as § 703(h) and Senator Humphrey's endorsement, 110 Cong.Rec. 13724 (¶20). https://supreme.justia.com/cases/federal/us/401/424/ [^5]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — class action by incumbent employees; Dan River Steam Station at Draper, North Carolina; 95 employees, 14 Black, 13 petitioners (¶2). https://www.law.cornell.edu/supremecourt/text/401/424 [^6]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — counsel and amicus; opinion by Chief Justice Burger; Justice Brennan not participating (¶23). https://www.law.cornell.edu/supremecourt/text/401/424 [^7]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — District Court findings on pre-July 2, 1965 discrimination and the five-department structure (¶3). https://www.law.cornell.edu/supremecourt/text/401/424 [^8]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — 1955 diploma rule, 1965 transfer rule, July 2, 1965 test requirement, September 1965 incumbent test route, Wonderlic and Bennett tests, score levels (¶¶4–5). https://www.law.cornell.edu/supremecourt/text/401/424 [^9]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — first operating-department assignment in August 1966 (n.2); test standards screening out about half of high school graduates (n.3). https://www.law.cornell.edu/supremecourt/text/401/424 [^10]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — lack of job relation, vice-president testimony, performance of non-graduates, promotion data (n.7), and "built-in headwinds" holding (¶¶12–14). https://www.law.cornell.edu/supremecourt/text/401/424 [^11]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — text of § 703(h), its inapplicability to the diploma rule (n.8), EEOC guidelines of August 24, 1966 and August 1, 1970 (n.9), and deference to the enforcing agency (¶¶17–18). https://www.law.cornell.edu/supremecourt/text/401/424 [^12]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — *Gaston County v. United States* (¶10); 1960 North Carolina census figures and EEOC test pass rates (n.6). https://www.law.cornell.edu/supremecourt/text/401/424 [^13]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — congressional objective of Title VII and the limits on what the Act commands (¶¶9–10). https://www.law.cornell.edu/supremecourt/text/401/424 [^14]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — tests must measure the person for the job (¶21). https://www.law.cornell.edu/supremecourt/text/401/424 [^15]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — District Court and Court of Appeals holdings, 420 F.2d 1225; certiorari, 399 U.S. 926 (¶¶6–8). https://www.law.cornell.edu/supremecourt/text/401/424 [^16]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — tuition assistance, consequences over motivation, and the employer's burden (¶15). https://www.law.cornell.edu/supremecourt/text/401/424 [^17]: Supreme Court of the United States, *Griggs v. Duke Power Co.*, 401 U.S. 424 (March 8, 1971) — Senate history of § 703(h): Clark–Case memorandum, 110 Cong.Rec. 7247; Senator Case's remarks, 110 Cong.Rec. 13504; defeat of the first Tower amendment; the Court's conclusion on congressional intent (¶¶19–20). https://www.law.cornell.edu/supremecourt/text/401/424