GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971) 91 S.Ct. 849
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 124.
Argued December 14, 1970
Decided March 8, 1971
Negro employees at respondent's generating plant brought this action,
pursuant to Title VII of the Civil Rights Act of 1964, challenging
respondent's requirement of a high school diploma or passing of
intelligence tests as a condition of employment in or transfer to
jobs at the plant. These requirements were not directed at or
intended to measure ability to learn to perform a particular job
or category of jobs. While Ãƒâ€šÃ‚Â§ 703(a) of the Act makes it an unlawful
employment practice for an employer to limit, segregate,
or classify employees to deprive them of employment opportunities
or adversely to affect their status because of race, color, religion,
sex, or national origin, Ãƒâ€šÃ‚Â§ 703(h) authorizes the use of any
professionally developed ability test, provided that it is not designed,
intended, or used to discriminate. The District Court found that
respondent's former policy of racial discrimination had ended, and
that Title VII, being prospective only, did not reach the prior
inequities. The Court of Appeals reversed in part, rejecting the
holding that residual discrimination arising from prior practices
was insulated from remedial action, but agreed with the lower court
that there was no showing of discriminatory purpose in the adoption
of the diploma and test requirements. It held that, absent
such discriminatory purpose, use of the requirements was permitted,
and rejected the claim that because a disproportionate number
of Negroes was rendered ineligible for promotion, transfer, or
employment, the requirements were unlawful unless shown to be
job related. Held:
1. The Act requires the elimination of artificial, arbitrary, and
unnecessary barriers to employment that operate invidiously to
discriminate on the basis of race, and, if, as here, an employment
practice that operates to exclude Negroes cannot be shown to be
related to job performance, it is prohibited, notwithstanding the
employer's lack of discriminatory intent. Pp. 429-433.
2. The Act does not preclude the use of testing or measuring
procedures, but it does proscribe giving them controlling force unless
they are demonstrably a reasonable measure of job performance.
420 F.2d 1225, reversed in part.
BURGER, C. J., delivered the opinion of the Court, in which all
members joined except BRENNAN, J., who took no part in the consideration
or decision of the case.
Jack Greenberg argued the cause for petitioners. With
him on the briefs were James M. Nabrit III, Norman C.
Amaker, William L. Robinson, Conrad O. Pearson, Julius
LeVonne Chambers, and Albert J. Rosenthal.
George W. Ferguson, Jr., argued the cause for respondent.
With him on the brief were William I. Ward, Jr.,
and George M. Thorpe.
Lawrence M. Cohen argued the cause for the Chamber
of Commerce of the United States as amicus curiae urging
affirmance. With him on the brief were Francis V.
Lowden, Jr., Gerard C. Smetana, and Milton A. Smith.
Briefs of amici curiae urging reversal were filed by
Solicitor General Griswold, Assistant Attorney General
Leonard, Deputy Solicitor General Wallace, David L.
Rose, Stanley Hebert, and Russell Specter for the United
States; by Louis J. Lefkowitz, Attorney General, pro se,
Samuel A. Hirshowitz, First Assistant Attorney General,
and George D. Zuckerman and Dominick J. Tuminaro,
Assistant Attorneys General, for the Attorney General
of the State of New York; and by Bernard Kleiman,
Elliot Bredhoff, Michael H. Gottesman, and George H.
Cohen for the United Steelworkers of America, AFL-CIO.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted the writ 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.[fn1]
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. All the petitioners are employed at the Company's
Dan River Steam Station, a power generating
facility located at Draper, North Carolina. At the time
this action was instituted, the Company had 95 employees
at the Dan River Station, 14 of whom were Negroes; 13 of
these are petitioners here.
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.[fn2] Promotions were
normally made within each department on the basis of
job seniority. Transferees into a department usually
began in the lowest position.
In 1955 the Company instituted a policy of requiring
a high school education for initial assignment to any
department except Labor, and for transfer from the Coal
Handling to any "inside" department (Operations, Maintenance,
or Laboratory). When the Company abandoned
its policy of restricting Negroes to the Labor Department
in 1965, completion of high school also was made a prerequisite
to transfer from Labor to any other department.
From the time the high school requirement was instituted
to the time of trial, however, white employees hired before
the time of the high school education requirement
continued to perform satisfactorily and achieve promotions
in the "operating" departments. Findings on this
score are not challenged.
The Company added a further requirement for new
employees on July 2, 1965, the date on which Title VII
became effective. To qualify for placement in any but
the Labor Department it became necessary to register
satisfactory scores on two professionally prepared aptitude
tests, as well as to have a high school education.
Completion of high school alone continued to render
employees eligible for transfer to the four desirable departments
from which Negroes had been excluded if the
incumbent had been employed prior to the time of the
new requirement. In September 1965 the Company began
to permit incumbent employees who lacked a high
school education to qualify for transfer from Labor or
Coal Handling to an "inside" job by passing two tests ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Â
the Wonderlic Personnel Test, which purports to measure
general intelligence, and the Bennett Mechanical Comprehension
Test. Neither was directed or intended to
measure the ability to learn to perform 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.[fn3]
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 was confronted with a question
of first impression, as are we, concerning the meaning of
Title VII. After careful analysis a majority of that
court concluded that a subjective test of the employer's
intent should govern, particularly in a close case, and
that in this case there was no showing of a discriminatory
purpose in the adoption of the diploma and test requirements.
On this basis, the Court of Appeals concluded
there was no violation of the Act.
The Court of Appeals reversed the District Court in
part, rejecting the holding that residual discrimination
arising from prior employment practices was insulated
from remedial action.[fn4] The Court of Appeals noted,
however, that the District Court was correct in its conclusion
that there was no showing of a racial purpose or
invidious intent in the adoption of the high school diploma
requirement or general intelligence test and that
these standards had been applied fairly to whites and
Negroes alike. It held that, in the absence of a discriminatory
purpose, use of such requirements was permitted
by the Act. In so doing, the Court of Appeals rejected
the claim that because these two requirements operated
to render ineligible a markedly disproportionate number
of Negroes, they were unlawful under Title VII unless
shown to be job related.[fn5] We granted the writ on these
claims. 399 U.S. 926.
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.[fn6] 420 F.2d 1225, 1239 n. 6. 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 and this Court
expressly recognized these differences in Gaston County
v. United States, 395 U.S. 285 (1969). There, because
of the inferior education received by Negroes in North
Carolina, this Court barred the institution of a literacy
test for voter registration on the ground that the test
would abridge the right to vote indirectly on account of
race. 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. What is required by Congress
is the removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate invidiously
to discriminate on the basis of racial or other
Congress has now provided that tests or criteria for
employment or promotion may not provide equality of
opportunity merely in the sense of the fabled offer of milk
to the stork and the fox. On the contrary, Congress has
now required that the posture and condition of the job-seeker
be taken into account. It has ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Â to resort again to
the fable ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Â provided that the vessel in which the milk is
proffered be one all seekers can use. 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 work force.
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 now used.[fn7] The promotion record of present
employees who would not be able to meet the new criteria
thus suggests the possibility that the requirements may
not be needed even for the limited purpose of preserving
the avowed policy of advancement within the Company.
In the context of this case, it is unnecessary to reach the
question whether testing requirements that take into account
capability for the next succeeding position or
related future promotion might be utilized upon a showing
that such long-range requirements fulfill a genuine
business need. In the present case the Company has
made no such showing.
The Court of Appeals held that the Company had
adopted the diploma and test requirements without any
"intention to discriminate against Negro employees."
420 F.2d, at 1232. 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 Company's lack of discriminatory intent is suggested
by special efforts to help the undereducated employees
through Company financing of two-thirds the
cost of tuition for high school training. But Congress
directed the thrust of the Act to the consequences of
employment practices, not simply the motivation. More
than that, Congress has placed on the employer the
burden of showing that any given requirement must
have a manifest relationship to the employment in
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.
History is filled with examples of men and women
who rendered highly effective performance without the
conventional badges of accomplishment in terms of certificates,
diplomas, or degrees. Diplomas and tests are
useful servants, but Congress has mandated the commonsense
proposition that they are not to become masters
The Company contends that its general intelligence
tests are specifically permitted by Ãƒâ€šÃ‚Â§ 703(h) of the Act.[fn8]
That section authorizes the use of "any professionally
developed ability test" that is not "designed, intended
or used to discriminate because of race . . . ." (Emphasis
The Equal Employment Opportunity Commission,
having enforcement responsibility, has issued guidelines
interpreting Ãƒâ€šÃ‚Â§ 703(h) to permit only the use of job-related
tests.[fn9] The administrative interpretation of the
Act by the enforcing agency is entitled to great deference.
See, e. g., United States v. City of Chicago, 400 U.S. 8
(1970); Udall v. Tallman, 380 U.S. 1 (1965); Power
Reactor Co. v. Electricians, 367 U.S. 396 (1961). 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.
Section 703(h) was not contained in the House version
of the Civil Rights Act but was added in the Senate
during extended debate. For a period, debate revolved
around claims that the bill as proposed would prohibit
all testing and force employers to hire unqualified persons
simply because they were part of a group formerly
subject to job discrimination.[fn10] Proponents of Title VII
sought throughout the debate to assure the critics that
the Act would have no effect on job-related tests. Senators
Case of New Jersey and Clark of Pennsylvania,
comanagers of the bill on the Senate floor, issued a
memorandum explaining that the proposed Title VII
"expressly protects the employer's right to insist that
any prospective applicant, Negro or white, must meet the
applicable job qualifications. Indeed, 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.[fn11] (Emphasis added.) Despite
these assurances, Senator Tower of Texas introduced an
amendment authorizing "professionally developed ability
tests." Proponents of Title VII opposed the amendment
because, as written, it would permit an employer to give
any test, "whether it was a good test or not, so long as
it was professionally designed. Discrimination could actually
exist under the guise of compliance with the statute."
110 Cong. Rec. 13504 (remarks of Sen. Case).
The amendment was defeated and two days later Senator
Tower offered a substitute amendment which was
adopted verbatim and is now the testing provision of
Ãƒâ€šÃ‚Â§ 703(h). Speaking for the supporters of Title VII, Senator
Humphrey, who had vigorously opposed the first
amendment, endorsed the substitute amendment, stating:
"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.
The amendment was then adopted.[fn12] From the sum of
the legislative history relevant in this case, the conclusion
is inescapable that the EEOC's construction of
Ãƒâ€šÃ‚Â§ 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, as to that
portion of the judgment appealed from, reversed.
MR. JUSTICE BRENNAN took no part in the consideration
or decision of this case.
[fn1] Page 426
The Act provides:
"Sec. 703. (a) It shall be an unlawful employment practice for
an employer ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Â
. . . . .
"(2) to limit, segregate, or classify his employees in any way
which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion, sex, or
. . . . .
"(h) Notwithstanding any other provision of this title, it shall
not be an unlawful employment practice for an employer . . .
to give and to act upon the results of any professionally developed
ability test provided that such test, its administration or action
upon the results is not designed, intended or used to discriminate
because of race, color, religion, sex or national origin. . . ."
78 Stat. 255, 42 U.S.C. Ãƒâ€šÃ‚Â§ 2000e-2.
427 A Negro was first assigned to a job in an operating department
in August 1966, five months after charges had been filed with the
Equal Employment Opportunity Commission. The employee, a high
school graduate who had begun in the Labor Department in 1953,
was promoted to a job in the Coal Handling Department.
[fn3] Page 428
The test standards are thus more stringent than the high school
requirement, since they would screen out approximately half of
all high school graduates.
[fn4] Page 429
The Court of Appeals ruled that Negroes employed in the Labor
Department at a time when there was no high school or test requirement
for entrance into the higher paying departments could not
now be made subject to those requirements, since whites hired
contemporaneously into those departments were never subject to them.
The Court of Appeals also required that the seniority rights of those
Negroes be measured on a plantwide, rather than a departmental,
basis. However, the Court of Appeals denied relief to the Negro
employees without a high school education or its equivalent who
were hired into the Labor Department after institution of the
[fn5] Page 429
One member of that court disagreed with this aspect of the
decision, maintaining, as do the petitioners in this Court, that Title
VII prohibits the use of employment criteria that operate in a
racially exclusionary fashion and do not measure skills or abilities
necessary to performance of the jobs for which those criteria are
[fn6] Page 430
In North Carolina, 1960 census statistics show that, while 34%
of white males had completed high school, only 12% of Negro males
had done so. U.S. Bureau of the Census, U.S. Census of Population:
1960, Vol. 1, Characteristics of the Population, pt. 35, Table
Similarly, with respect to standardized tests, the EEOC in one
case found that use of a battery of tests, including the Wonderlic
and Bennett tests used by the Company in the instant case, resulted
in 58% of whites passing the tests, as compared with only 6% of
the blacks. Decision of EEOC, CCH Empl. Prac. Guide, Ãƒâ€šÃ‚Â¶ 17,304.53
(Dec. 2, 1966). See also Decision of EEOC 70-552, CCH Empl.
Prac. Guide, Ãƒâ€šÃ‚Â¶ 6139 (Feb. 19, 1970).
[fn7] Page 432
For example, between July 2, 1965, and November 14, 1966, the
percentage of white employees who were promoted but who were
not high school graduates was nearly identical to the percentage of
nongraduates in the entire white work force.
[fn8] Page 433
Section 703(h) applies only to tests. It has no applicability
to the high school diploma requirement.
[fn9] Page 433
EEOC Guidelines on Employment Testing Procedures, issued
August 24, 1966, provide:
"The Commission accordingly interprets `professionally developed
ability test' to mean a test which fairly measures the knowledge
or skills required by the particular job or class of jobs which the
applicant seeks, or which fairly affords the employer a chance to
measure the applicant's ability to perform a particular job or class
of jobs. The fact that a test was prepared by an individual or
organization claiming expertise in test preparation does not, without
more, justify its use within the meaning of Title VII."
The EEOC position has been elaborated in the new Guidelines on
Employee Selection Procedures, 29 C.F.R. Ãƒâ€šÃ‚Â§ 1607, 35 Fed. Reg. 12333
(Aug. 1, 1970). These guidelines demand that employers using
tests have available "date demonstrating that the test is predictive of
or significantly correlated with important elements of work behavior
which comprise or are relevant to the job or jobs for which candidates
are being evaluated." Id., at Ãƒâ€šÃ‚Â§ 1607.4(c).
[fn10] Page 434
The congressional discussion was prompted by the decision of
a hearing examiner for the Illinois Fair Employment Commission
in Myart v. Motorola Co. (The decision is reprinted at 110 Cong.
Rec. 5662.) That case suggested that standardized tests on which
whites performed better than Negroes could never be used. The
decision was taken to mean that such tests could never be justified
even if the needs of the business required them. A number
of Senators feared that Title VII might produce a similar result.
See remarks of Senators Ervin, 110 Cong. Rec. 5614-5616; Smathers,
id., at 5999-6000; Holland, id., at 7012-7013; Hill, id., at 8447;
Tower, id., at 9024; Talmadge, id., at 9025-9026; Fulbright, id., at
9599-9600; and Ellender, id., at 9600.
[fn11] Page 434
The Court of Appeals majority, in finding no requirement in
Title VII that employment tests be job related, relied in part on a
quotation from an earlier Clark-Case interpretative memorandum
addressed to the question of the constitutionality of Title VII. The
Senators said in that memorandum:
"There is no requirement in title VII that employers abandon
bona fide qualification tests where, because of differences in background
and education, members of some groups are able to perform
better on these tests than members of other groups. An employer
may set his qualifications as high as he likes, he may test to determine
which applicants have these qualifications, and he may hire,
assign, and promote on the basis of test performance." 110 Cong.
However, nothing there stated conflicts with the later memorandum
dealing specifically with the debate over employer testing, 110 Cong.
Rec. 7247 (quoted from in the text above), in which Senators Clark
and Case explained that tests which measure "applicable job
qualifications" are permissible under Title VII. In the earlier memorandum
Clark and Case assured the Senate that employers were
not to be prohibited from using tests that determine qualifications.
Certainly a reasonable interpretation of what the Senators meant,
in light of the subsequent memorandum directed specifically at
employer testing, was that nothing in the Act prevents employers
from requiring that applicants be fit for the job.
[fn12] Page 436
Senator Tower's original amendment provided in part that a
test would be permissible "if . . . in the case of any individual who
is seeking employment with such employer, such test is designed to
determine or predict whether such individual is suitable or trainable
with respect to his employment in the particular business or enterprise
involved . . . ." 110 Cong. Rec. 13492. This language indicates
that Senator Tower's aim was simply to make certain that job-related
tests would be permitted. The opposition to the amendment
was based on its loose wording which the proponents of Title VII
feared would be susceptible of misinterpretation. The final amendment,
which was acceptable to all sides, could hardly have required
less of a job relation than the first.