Griggs at Midlife
Deborah A. Widiss*
The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story. By Robert Belton. Edited by Stephen L. Wasby. Topeka: University of Kansas Press. 2014. Pp. xi, 424. $39.95.
“ ‘Midlife transition’ is a natural stage that happens to many of us at some point (usually at about age 40, give or take 20 years). . . . [It] can include . . . [q]uestioning decisions made years earlier and the meaning of life [and] [c]onfusion about who you are or where your life is going.”
— Psychology Today
Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989, a Supreme Court decision threatened to gut the doctrine by significantly decreasing the burden on employers to justify policies with such disparate effects. Two years later, Congress repudiated that decision, embracing disparate impact as a key aspect of discrimination law and codifying the more rigorous standard initially enunciated in Griggs. The bill passed with landslide majorities.
At the time, this seemed a significant victory that would put to rest claims that disparate impact liability was illegitimate. But in recent years, there has been growing doctrinal and theoretical criticism of disparate impact. In 2009, Justice Scalia warned of a coming “war” between disparate impact and equal protection, suggesting that the doctrine might be unconstitutional because it requires employers to assess whether a policy has racially disparate effects. The current Court has not been shy about reconsidering bulwarks of the civil rights revolution, and Title VII’s disparate impact provisions may likewise be in jeopardy. (Indeed, as this Review was being finalized for publication, the Supreme Court granted certiorari on a case regarding whether disparate impact claims are cognizable under the Fair Housing Act.) Aside from this brewing constitutional question, disparate impact has recently been criticized by leading commentators as being unreasonably disadvantageous to both employer and employee interests. For example, Professor Wax argues that disparate impact unfairly exposes businesses to liability for adopting measures that predict job performance but also cause a racially disparate impact. And Professor Selmi suggests that, although plaintiffs used the doctrine in some important victories, it may have hindered other efforts to address discrimination by curtailing conceptions of discriminatory intent. Moreover, as a practical matter, disparate impact plays a relatively small role in modern employment discrimination litigation, in part because a different portion of the 1991 Act enhanced the remedies available for plaintiffs who prove intentional discrimination. Thus, even if the Court reaffirms its constitutionality, disparate impact risks receding into obsolescence. Like other forty-year-olds, Griggs must come to terms with its place in modern society.
It is thus fortunate that, at this critical juncture, Robert Belton’s The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story has been published. The book is the first comprehensive history of the litigation campaign that led to this seminal decision. Belton, a former law professor and a nationally recognized expert in employment discrimination law, began his legal career as an attorney at the NAACP Legal Defense and Educational Fund (“LDF”). He was hired shortly after Title VII was enacted, and he was charged with figuring out how best to litigate under the new statute. Griggs was one of his first cases.
Belton’s primary objective in the book is to offer a window into disparate impact’s birth and early life. In this respect, the book unquestionably succeeds. Belton provides an insightful account of how lawyers, judges, academics, and activists sought to realize Title VII’s transformative potential; The Crusade for Equality is an important addition to the growing body of work on Griggs’s origins. Although Belton acknowledges debate over disparate impact, he offers little direct response to recent critical or doctrinal challenges. This Review addresses that crucial gap. My focus is not the looming question of disparate impact’s constitutionality—an issue that has been well plumbed in the years since Justice Scalia’s shot across the bow—but rather the deeper question of how much will, or could, the result in that coming war matter? In other words, how useful is disparate impact?
Part I of this Review fleshes out the history of Griggs, giving readers a sense of the rich detail found in the book. Belton introduces modern readers to the key players in the unfolding drama and helps us better understand the strategic choices that shaped the now-familiar doctrine. The book establishes that Griggs and its progeny played a central role in dismantling facially neutral tests and educational requirements—many of which were implemented by Southern employers who had previously relied on explicit racial classifications to relegate blacks to the least desirable jobs—that could have severely limited the efficacy of Title VII from its inception.
Part II of the Review also explores disparate impact’s early years, but it focuses on the development of the doctrine in sex discrimination cases, which are almost entirely absent from Belton’s narrative. By supplying this missing piece of the story, Part II provides a more nuanced discussion of disparate impact’s history and a more muted assessment of its achievements. This Part shows that courts have generally rejected efforts to use the doctrine to require changes to workplace policies that are insufficiently supportive of pregnancy or family caregiving responsibilities. Advocates have long recognized that women of color were—and remain—disproportionately harmed by such policies. This Part suggests that the failure to develop an intersectional understanding of disparate impact doctrine thus risks ignoring key vectors of exclusion.
Part III then turns to the present, looking at current efforts to use the doctrine to challenge employers’ use of criminal background screens in hiring. This campaign is still evolving, and it illustrates some of the pitfalls, but also the promise, that the early history of the doctrine suggested. Part III also further develops the discussion of intersectional disparate impact analysis. Arrest and conviction rates are heavily skewed by both race and sex; assessing the disparate impact of a background screening policy on the basis of either factor alone dilutes the disparate impact that such policies impose on black and Latino men. Finally, this Part discusses the central role that compliance work plays in modern efforts to ensure equal employment opportunity.
My title—and my focus—is optimistic. I hope and believe that disparate impact will remain viable and that Griggs’s early life offers lessons to capitalize further on the doctrine today. Of course, it is possible that Griggs may not be at midlife; it may be on its deathbed. If this turns out to be the case, Robert Belton’s book nonetheless deserves attention: it will serve as an eloquent eulogy for a foundational case that expanded employment opportunity in this country and that continues to be a model around the world.
* Associate Professor of Law, Indiana University Maurer School of Law. My thanks to KT Albiston, Rachel Arnow-Richman, Joseph Fishkin, Tristin Green, Serena Mayeri, Camille Gear Rich, and Leticia Saucedo, as well as to participants at the 2014 Annual Labor and Employment Law Scholarship Colloquium and the “Past and Future of Disparate Impact” panel discussion held at Vanderbilt Law School, for their helpful suggestions in response to earlier drafts. I also thank the editors of the Michigan Law Review for their extremely conscientious work.
. Mid-Life, Psychol. Today, http://www.psychologytoday.com/conditions/mid-life (last visited Sept. 25, 2014).
. 401 U.S. 424 (1971).
. Griggs, 401 U.S. at 431 (“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.”).
. Alfred W. Blumrosen, The Legacy of Griggs: Social Progress and Subjective Judgments, 63 Chi.-Kent L. Rev. 1, 1–2 (1987); see also H.R. Rep. No. 102-40(I), at 23 (1991) (characterizing Griggs as “[t]he single most important Title VII decision, both for the development of the law and in its impact on the daily lives of American workers”); Robert Belton, The Crusade for Equality in the Workplace: The Griggs v. Duke Power Story 5 (2014) (noting a television interview with Chief Justice Burger in which he identified Griggs as the most important case handed down in his first two terms on the Court).
. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989) (“[T]he dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. . . . [T]here is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ to the employer’s business.”).
. Civil Rights Act of 1991, Pub. L. No. 102-166, § 3, 105 Stat. 1071, 1071 (1991) (“The purposes of this Act are . . . to codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . [and] to confirm statutory authority and provide statutory guidelines for the adjudication of disparate impact suits . . . .”); id. § 105 (codified at 42 U.S.C. § 2000e-2(k) (2012)) (setting forth the burden of proof in disparate impact cases).
. The Act passed 93 to 5 in the Senate and 381 to 38 in the House. Pub. L. No. 102-166, 105 Stat. 1071.
. Ricci v. DeStefano, 557 U.S. 557, 595–96 (2009) (Scalia, J., concurring).
. See, e.g., Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) (holding unconstitutional section 4 of the Voting Rights Act, which set forth the coverage formula for preclearance requirements); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (holding unconstitutional use of race as a factor to increase diversity in K–12 schools); see also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (emphasizing that racially based affirmative action in the education context must be subject to a searching examination).
. See The Inclusive Communities Project, Inc. v. Tex. Dep’t of Hous. & Cmty. Affairs, 747 F.3d 275 (5th Cir. 2014), cert. granted in part, 82 U.S.L.W. 3686 (U.S. Oct. 2, 2014) (No. 13-1371). This case may well be decided on statutory interpretation grounds rather than constitutional grounds, but the Court’s reasoning might be significant in any subsequent challenge to disparate impact under Title VII.
. Amy L. Wax, Disparate Impact Realism, 53 Wm. & Mary L. Rev. 621 (2011) (arguing that, because job-predictive tests consistently cause racially disparate effects, disparate impact should be modified or eliminated); cf. Lawrence Rosenthal, Saving Disparate Impact, 34 Cardozo L. Rev. 2157, 2159 (characterizing research as establishing a “consensus in the scholarly literature that as a statistical matter, a cognitive ability test is likely to have something approaching one standard deviation of disparate racial impact on Blacks” but arguing that this finding emphasizes the need for retaining disparate impact liability).
. Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. Rev. 701 (2006); see also Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 Calif. L. Rev. 1, 20–24 (2006) (arguing that disparate impact has been ineffective at challenging subjective employment practices or other structural aspects of employment besides testing).
. See, e.g., Selmi, supra note 12, at 738–42 (finding that relatively few “pure” disparate impact claims succeed); Elaine W. Shoben, Disparate Impact Theory in Employment Discrimination: What’s Griggs Still Good For? What Not?, 42 Brandeis L.J. 597 (2004) (reviewing cases in which disparate impact could have been pleaded but was not). As discussed infra Part III, the doctrine has regained some prominence as a vehicle for challenging criminal background screens.
. Robert Belton was Professor of Law Emeritus, Vanderbilt Law School.
. Other significant accounts include the following: Robert Smith, Race, Labor, & Civil Rights: Griggs Versus Duke Power and the Struggle for Equal Employment Opportunity (2008) (emphasizing the role that Willie Boyd, one of the plaintiffs in Griggs, and other grassroots labor and civil rights activists played in early implementation of Title VII); Susan D. Carle, A Social Movement History of Title VII Disparate Impact Analysis, 63 Fla. L. Rev. 251 (2011) (emphasizing the extent to which state and federal agencies addressing employment discrimination even prior to Title VII’s enactment utilized disparate impact frameworks); Samuel Estreicher, The Story of Griggs v. Duke Power Co., in Employment Discrimination Stories (Joel Wm. Friedman ed., 2006) (tracing history and emphasizing a shift in statutory interpretation methods); David J. Garrow, Toward a Definitive History of Griggs v. Duke Power Co., 67 Vand. L. Rev. 197 (2014) (book review) (providing a positive review of Belton’s book that summarizes key aspects of the history he covers); and Selmi, supra note 12, at 708–24 (tracing history similar to that covered by Belton but emphasizing the extent to which these early cases dealt with specific instances of past discrimination).
. See generally, e.g., Helen Norton, The Supreme Court’s Post-Racial Turn Towards a Zero-Sum Understanding of Equality, 52 Wm. & Mary L. Rev. 197 (2010) (discussing disparate impact’s constitutionality under contemporary equal protection jurisprudence); Richard Primus, The Future of Disparate Impact, 108 Mich. L. Rev. 1341 (2010) (same); Rosenthal, supra note 11 (same).