Griggs at Midlife

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.