Griggs at Midlife

• Author: Widiss, Deborah A

GRIGGS AT MIDLIFE

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."1

- Psychology Today

Introduction

Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co.,2 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.3 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."4 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.5 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.6 The bill passed with landslide majorities.7

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.8 The current Court has not been shy about reconsidering bulwarks of the civil rights revolution,9 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.10) 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.11 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.12 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.13 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 Story14 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.15 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 bow16-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.

1. Disparate Impact's Early Years: Race Discrimination

   Belton characterizes the story as an "insider's, first-person, behind-thescenes history of the litigation campaign that led to Griggs and much of its progeny" (p. 6). We are lucky to have it. Belton brings readers into the heady days of first litigating under Title VII, a time when leading public interest organizations, private lawyers, government agencies, academics, and judges were all grappling with what "discrimination" would mean under the new law. Belton has a rich trove of sources for his story, including LDF case files and documents that are not yet open to the public; interviews with key participants; papers of some of the judges and Supreme Court justices who participated in the major cases in the story; and, of course, his own memories (pp. 10-11). The manuscript was largely completed prior to Belton's death in 2012. It was finalized for publication by Stephen Wasby, a respected political scientist with an expertise in the civil rights movement and the federal courts (pp. x-xi). The book is well indexed; readers interested in particular civil rights advocates or particular cases during these pivotal years will easily be able to identify their role in the story.

   Belton provides context for and texture to the factual allegations recited in the Supreme Court decision in Griggs. Students and scholars of employment discrimination law know that, prior to the enactment of Title VII, Duke Power relegated black workers to the least desirable class of jobs in the Dan River power plant (pp. 108-09). The company then used facially neutral rules to freeze these racially discriminatory policies in place; only employees who had graduated from high school or who could pass a standardized intelligence test were permitted to transfer to jobs inside the plant.17 Belton reminds us that the test requirement was implemented on the day Title VII became effective. We also learn that, notwithstanding the new law, the plant maintained racially segregated locker rooms, showers, drinking fountains, and toilets (p. 109). White employees had facilities inside the power plant's main...