# Section 703(h) *Employment-testing provision of Title VII of the Civil Rights Act of 1964* **Section 703(h)** (§703(h)) is a provision of [[Title VII]] of the [[Civil Rights Act of 1964]] that originated as a compromise on employment testing during the 1964 Senate debate. In [[Griggs v. Duke Power]], the Supreme Court quoted Humphrey, the Act's Senate floor manager, at 401 U.S. 436 endorsing that compromise. The Court then built the disparate-impact doctrine on the same statute.[^1] The Congressional Record holds the floor manager's account of the title. Humphrey told the Senate that the title "forbids discriminating against anyone on account of race"[^2] and that the bill "provides that race shall not be a basis for making personnel decisions."[^3] The doctrine the Court later built on that statute is the target of an April 2025 presidential order, which states the policy "to eliminate the use of disparate-impact liability in all contexts."[^4] On January 14, 2026, the United States filed [[United States v. State of Minnesota (0:26-cv-00273)]], a Title VII action against [[Minnesota]] that is now before a three-judge district court. The record describes the complaint as pleaded under §§703(a)(1) and (a)(2). It does not show §703(h) invoked.[^5] ## Who Humphrey was Senate Majority Whip and floor manager of the Civil Rights Act of 1964.[^6] He told the Senate that nothing in the title would give the Commission or any court power to require hiring, firing or promotion "in order to meet a racial 'quota' or to achieve a certain racial balance."[^2] He also said that nothing in the bill "would permit any official or court to require any employer or labor union to give preferential treatment to any minority group."[^7] In a floor exchange with Senator Thurmond on March 26, 1964, he said "there is nothing in this section that calls for racial balance".[^8] The dossier underlying this entry corrects its own corpus on one point. It finds that the popular line "I will eat my hat", and the variant about eating the pages of the bill, cannot be located in the Congressional Record, in *Weber*, in *Griggs*, in the published legislative-history compilations, or in the Senate Historical Office's transcript of the Humphrey–Thurmond debate.[^6] ## What The record identifies §703(h) as the codified form of the testing compromise that Humphrey endorsed and that *Griggs* quoted.[^1] The record available to this article does not carry the subsection's own text. The dossier identifies a companion provision, §703(j), 42 U.S.C. §2000e-2(j), as the statutory codification of Humphrey's assurances. It provides that nothing in the subchapter shall be interpreted to require preferential treatment to any individual or group "because of the race, color, religion, sex, or national origin of such individual or group" on account of an imbalance.[^9] ## When - **1964.** Senate floor debate on Title VII. The record cites Humphrey's remarks at 110 Cong. Rec. 5423, 6429 (March 26, 1964), 6548, 6549 and 6553.[^2][^7][^8][^10] - **1979.** *United Steelworkers v. Weber*, 443 U.S. 193. Both the majority and the dissent quote Humphrey.[^10] - **January 21, 2025.** Executive Order 14173 revokes [[Executive Order 11246]].[^5] - **April 2025.** A presidential order states the policy "to eliminate the use of disparate-impact liability in all contexts."[^4] - **January 14, 2026.** *United States v. State of Minnesota*, 0:26-cv-00273 (D. Minn.), is filed. The State's response was due February 27, 2026. The case was ongoing as of June 18, 2026.[^5] The record does not give the decision date of *Griggs*. ## In the at-issue record The record pairs two documented items. The first is the floor manager's assurance that the title would not require quotas or racial balance.[^2] The second is the Supreme Court's use of the same statute, in *Griggs*, to build the disparate-impact doctrine, after quoting Humphrey on the testing compromise that became §703(h).[^1] The at-issue entry states that "the floor manager's assurance and the doctrine that swallowed it are in the same body of case law."[^1] The entry's anchor is the 2025 presidential order quoted above.[^4] *Weber* shows the same record serving opposite holdings. Justice Brennan's majority quoted Humphrey's statement of the title's purpose (110 Cong. Rec. 6548) to permit voluntary race-conscious [[Affirmative action]]. Justice Rehnquist's dissent quoted Humphrey's disclaimers on quotas to forbid it.[^10] The record shows both readings. It does not establish which one the floor record supports. ## In the Minnesota record ### What The complaint in *United States v. State of Minnesota*, 0:26-cv-00273 (D. Minn.), alleges a violation of Title VII §§703(a)(1) and (a)(2). It challenges the Minnesota DHS Hiring/[[Pre-Hire Justification policy]] and is described as pleaded through *Bostock* textualism. The signed agency policy is filed as the operative Exhibit B and contains the "[[Non-underrepresented candidate|non-underrepresented candidate]]" language. The complaint cites [[§43A.191]] eight times. The action was brought after [[Executive Order 11246]] was revoked by EO 14173 on January 21, 2025.[^5] The dossier describes the suit as attacking Minn. Stat. §43A.191 as a Title VII violation. That is the statute Humphrey floor-managed.[^6] The State's response was due February 27, 2026. The case was ongoing as of June 18, 2026. The record carries no ruling on the merits.[^5] ### Who The case is before a three-judge district court: - Circuit Judge [[Raymond W. Gruender]] - Chief Judge [[Patrick J. Schiltz]] (D. Minn.) - Judge [[D. Price Marshall Jr.]] (E.D. Ark.) The magistrate judge is Shannon G. Elkins, assigned after a recusal.[^5] ## Notes [^1]: Supreme Court of the United States, *Griggs v. Duke Power*, 401 U.S. 436 — quotes Humphrey endorsing the testing compromise that became §703(h); the disparate-impact doctrine is built on the same statute. Recorded in at-issue row AI-Humphrey-072 (source: HHH_Waverly_Apex_Dossier_2026-09-02.md §IV.5; court source, supreme.justia.com). No URL for the opinion is among the record's allowed sources. [^2]: U.S. Senate, *Congressional Record*, 110 Cong. Rec. 6549 (1964), as quoted in *United Steelworkers v. Weber*, 443 U.S. 193, 231 (1979) (Rehnquist, J., dissenting) — Humphrey's statements that the title forbids racial discrimination and confers no power to require a racial quota or balance. Quotation as reproduced in HHH_Waverly_Apex_Dossier_2026-09-02.md §IV.5; no URL in the record. [^3]: U.S. Senate, *Congressional Record*, 110 Cong. Rec. 6553 (1964), as quoted in *United Steelworkers v. Weber*, 443 U.S. 193, 232 (1979) — Humphrey's statement that the bill provides race shall not be a basis for personnel decisions. As reproduced in HHH_Waverly_Apex_Dossier_2026-09-02.md §IV.5; no URL in the record. [^4]: The White House, *Restoring Equality of Opportunity and Meritocracy* (presidential action, April 2025) — states the policy "to eliminate the use of disparate-impact liability in all contexts." https://www.whitehouse.gov/presidential-actions/2025/04/restoring-equality-of-opportunity-and-meritocracy [^5]: *The Instrument No One Will Name* (densified, 2026-06-18), entry [53] — *United States v. State of Minnesota*, 0:26-cv-00273 (D. Minn., filed Jan. 14, 2026). Establishes the Title VII §§703(a)(1), (a)(2) challenge, Exhibit B, the eight citations of §43A.191, the revocation of EO 11246 by EO 14173 (Jan. 21, 2025), the panel, the Feb. 27, 2026 response date, and the case's ongoing status as of refresh. No URL in the record. [^6]: HHH_Waverly_Apex_Dossier_2026-09-02.md, §IV.5, *Title VII floor management (1964)* (2026-09-02) — establishes Humphrey's role as Majority Whip and floor manager, the dossier's correction on the unlocatable "eat my hat" line, and its description of the 2026 suit. No URL in the record. [^7]: U.S. Senate, *Congressional Record*, 110 Cong. Rec. 5423 (1964), as quoted in *United Steelworkers v. Weber*, 443 U.S. 193, 229–230 (1979) — Humphrey's statement on preferential treatment. As reproduced in HHH_Waverly_Apex_Dossier_2026-09-02.md §IV.5; no URL in the record. [^8]: U.S. Senate, *Congressional Record*, 110 Cong. Rec. 6429 (March 26, 1964) — Humphrey–Thurmond floor exchange on racial balance. As reproduced in HHH_Waverly_Apex_Dossier_2026-09-02.md §IV.5; no URL in the record. [^9]: United States Code, *42 U.S.C. §2000e-2(j)* (Title VII §703(j)) — text of the preferential-treatment disclaimer, as quoted in HHH_Waverly_Apex_Dossier_2026-09-02.md §IV.5; no URL in the record. [^10]: Supreme Court of the United States, *United Steelworkers v. Weber*, 443 U.S. 193 (1979) — the majority quotes Humphrey (110 Cong. Rec. 6548, at 443 U.S. 204) to permit voluntary race-conscious affirmative action, and the dissent quotes his disclaimers (at 229–232) to forbid it. As described in HHH_Waverly_Apex_Dossier_2026-09-02.md §IV.5; no URL in the record.