Assignment:
Chief Justice Burger
We granted the write 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 in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites. Congress provided, in Title VII of the Civil Rights Act of 1964, for class actions for enforcement of provisions of the Act and this proceeding was brought by a group of incumbent Negro employees against Duke Power Company. . 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. Negroes were employed only in the Labor Department where the highest-paying jobs paid less than the lowest-paying jobs in the other four "operating" departments in which only whites were employed. Promotions were normally made within each department on the basis of job seniority. Transferees into a department usually began in the lowest position.
A particular job or category of jobs. The requisite scores used for both initial hiring and transfer approximated the national median for high school graduates. The District Court had found that while the company previously followed a policy of overt racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only and, consequently, the impact of prior inequities was beyond the reach of corrective action authorized by the Act. The Court of Appeals concluded there was no violation of the Act.
The objective of Congress in the enactment of Title VII is plain from the language of the statute. 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. 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. The Court of Appeals' opinion, and the partial dissent, agreed that, on the record in the present case, "whites register far better on the company's alternative requirements" than Negroes. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools.
Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the 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. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.
The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. 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. On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the company testified, the requirements were instituted on the company's judgment that they generally would improve the overall quality of the workforce.
The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are not used. The Court of Appeals held that the company had adopted the diploma and test requirements without any "intention to discriminate against Negro employees." We do not suggest that either the District Court or the Court of Appeals erred in examining the employer's intent; but 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.
The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. The company contends that its general intelligence tests are specifically permitted by Section 703(h) of the Act. That section authorizes the use of "any professionally developed ability test" that is not "designed, intended or used to discriminate because of race." (Emphasis added.) The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting Section 703(h) to permit only the use of job-related tests. The administrative interpretation of the Act by the enforcing agency is entitled to great deference. Since the Act and its legislative history support the commission's construction, this affords good reason to treat the guidelines as expressing the will of Congress.
From the sum of the legislative history relevant in this case, the conclusion is inescapable that the EEOC's construction of Section 703(h) to require that employment tests be job related comports with congressional intent. Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. The judgment of the Court of Appeals is reversed.
Questions
1. According to the Supreme Court, what was Congress's objective in enacting Title VII?
2. Had Duke Power been able to establish that its reasons for adopting the diploma and test standards were entirely without discriminatory intent, would the Supreme Court have ruled differently? Explain.
3. What is the central issue in this case?
4. Why was North Carolina's social and educational history relevant to the outcome of the case?
5. Statistical evidence showed that 35 percent of new hires in grocery and produce at Lucky Stores, a retail grocery chain, were women, while 84 percent of new hires in deli, bakery, and general merchandise were women. Statistical evidence also showed that 31 percent of those promoted into apprentice jobs in grocery and produce were women, while women comprised 75 percent of those promoted into apprentice jobs in deli, bakery, and general merchandise. Grocery and produce jobs generally were higher-paying jobs than those in deli, bakery, and general merchandise. Women received significantly fewer overtime hours than men. Do these facts regarding Lucky Stores suggest discrimination? Explain. See Stender v. Lucky Stores, Inc., 803 F.Supp. 259 (DC Cal. 1992).
6. To determine whether police officers were using illegal drugs, the Boston Police Department used hair tests. The police department took adverse employment actions against several African-American police officers who had failed the test. The officers brought a Title VII action claiming the test created a disparate impact based on race. African-American officers had passed the test at rates between 97 and 99 percent, while white officers' pass rate was 99 and 100 percent. However, the officers' expert offered evidence that fail rates of African-American police officers were "statistically significant"-between two and four standard deviations. The Boston Police Department asked for summary judgment. Should the disparate impact claim be allowed to proceed? Explain. See Jones v. City of Boston, 2012 U.S. Dist. LEXIS 141440 (D. Mass. 2012).
7. Eighty-one percent of the hires at Consolidated Service Systems, a small Chicago janitorial company, were of Korean origin. The EEOC brought a disparate treatment claim, saying the firm discriminated in favor of Koreans by relying primarily on word-of-mouth recruiting. Hwang, the owner, is Korean. Seventy-three percent of the job applicants were Korean. One percent of the Chicago-area workforce is Korean, and not more than 3 percent of the janitorial workforce for the area is Korean. The court found no persuasive evidence of intentional discrimination, although the government claimed that 99 applicants were denied jobs because they were not Koreans.
a. Does restricting hiring to members of one ethnic group constitute discrimination where hiring is accomplished by word of mouth? Explain.
b. What if a firm, using the word-of-mouth approach, hired only white applicants? Explain.
c. In this case, the EEOC brought but dropped a disparate impact claim. Analyze the case using the disparate impact test. See Equal Employment Opportunity Commission v. Consolidated Service Systems, 989 F.2d 233 (7th Cir. 1993).