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Question: Before Title VII, Duke Power hired black


Before Title VII, Duke Power hired black employees only in the labor department, where the highest pay was less than the lowest earnings in the other departments. After Title VII, the Company required all new hires for jobs in the desirable departments to have a high school education or satisfactory scores on two tests that measured intelligence and mechanical ability. Neither test gauged the ability to perform a particular job. The pass rate for whites was much higher than for blacks and blacks were also less likely than whites to have a high school diploma. The new policy did not apply to the (exclusively white) employees who were already working in the preferred departments. These “unqualified” whites all performed their jobs satisfactorily.
Black employees sued Duke Power, alleging that this hiring policy violated Title VII. The trial court dismissed the case. The Court of Appeals ruled that the policy was not in violation of Title VII because Duke Power did not have a discriminatory purpose. The Supreme Court granted certiorari.
Issue: Does a policy violate Title VII if it has a discriminatory impact but no discriminatory purpose?
Excerpts from Chief Justice Burger’s Decision: Congress did not intend by Title VII to guarantee a job to every person regardless of qualifications. 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 impermissible classification.
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 without meaningful study of their relationship to job performance ability. Rather, 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.
[G]ood 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. 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 question.
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 common sense proposition that they are not to become masters of reality.
Nothing in the Act precludes the use of testing or measuring procedures; obviously, they are useful. 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.
Reasoning: Under Title VII, employers may establish job requirements that exclude more blacks than whites, but only if the requirements are necessary to do that particular work. In this case, there was no evidence that either a high school diploma or the two tests bore any relationship to the job in question. Indeed, white employees without any of these qualifications had been doing the jobs well for years, and had even been promoted.
Whether or not Duke Power intended to discriminate is irrelevant. Title VII is concerned with the consequences of an employer’s practices, not its motivation. The burden is on the employer to show that all job requirements have an important relationship to the work in question. Any tests must measure the person for the job and not the person in the abstract.

Required:
a. What is a factor that the court looked at to determine if Duke Power had a discriminatory purpose?
b. What does disparate impact mean?


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