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Politics Foreign Affairs Culture Fellows Program

Overturn Griggs v. Duke Power

We could undercut woke bureaucrats and the higher ed complex in one blow.

Iq,Test,-,Intelligence,Measuring,Concept
Featured in the August 2022 issue
(Jirsak/Shutterstock)

Overturning Roe seemed like a pipe dream until it finally happened. Now that the worst modern legal precedent is gone, we asked TAC contributors: Which bad decision should the Supreme Court overturn next?

Few Supreme Court cases are so little known by the public yet so damaging in effect as Griggs v. Duke Power (1971). When the idiosyncratic right-wing political scientist Richard Hanania recently mentioned the case on Twitter, liberal pundit Matt Yglesias admitted he’d never heard of it. Yet Griggs was arguably the first important instantiation of the principles of critical race theory in government policy and as such has had a uniquely deleterious effect on American life.

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The underlying facts in Griggs were fairly straightforward: North Carolina’s Duke Power Company gave its employees an IQ test and mechanical aptitude tests to make it easier for workers to earn transfers to more attractive positions. The gap in aptitude as measured by these tests for white and black employees eligible for promotion was very large. The court found unanimously that these tests did not reflect employees’ ability to do their jobs and were thus illegally discriminatory. 

Griggs introduced the concept of “disparate impact” into U.S. law. Now a process that had an outcome that varied by race could potentially be illegal even if no racial discrimination was intended. It is important to note that even pre-Griggs, pretextual discrimination, i.e discrimination with a nominally race-neutral standard but with discriminatory intent, was illegal. 

The decision, little noted in the media when it was announced, was a legal earthquake. Today disparate impact theory affects not just employment law but housing policy, education, and criminal background checks and credit checks.

In 1989, the Court attempted to substantially limit the scope and burden of proof of the Griggs ruling in Wards Cove Packing Company v. Atonio, in which the Court ruled that only a “business justification” was needed to avoid running afoul of disparate impact law.   

However, that ruling was undone by the GOP’s cowardice under President George H.W. Bush, who signed the 1991 Civil Rights Act, which, among other things, effectively reversed Wards Cove. The burden of proof for a business reason for a disparate outcome shifted back to the employer.   

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While in theory the scope of Griggs was technically fairly modest, in practice, it had a dramatic effect on hiring and employment practices. It was also the first governmental endorsement of critical race theory as put forward by writers such as Ibram X. Kendi, which suggests that any difference in outcome between racial groups is presumptively due to racism.

For example, in 2013, the Dollar General store chain was fined $6 million and forced to change its hiring practices after a suit that showed its criminal background check disproportionately harmed black applicants, even though there was no suggestion that this was why the background check was put in place.  

Because Griggs was subsequently codified into law, the Supreme Court would have to actively reverse it, rather than simply return the issue to the states as they did in Dobbs. Fortunately, the original Griggs decision is so explicitly Kendian in its logic that a full reversal is merited and likely, given the current composition of the court. The Court should rule Griggs and its legal successors in disparate impact theory what they are: clearly unconstitutional cases of racial discrimination. 

A Griggs reversal would open up a whole host of possibilities. First, it would again allow corporations to hire the best candidates for jobs, banks to make loans to the most creditworthy applicants, etc. without fear of legal retribution. The explosive growth in higher education in recent decades has been attributed by some critics to companies using it as a substitute for IQ and other aptitude tests. By eliminating legal concerns about the validity of such tests, a reversal of Griggs could open up a non-college path to employment for millions of Americans.

Ultimately the attempt to avoid issues of intelligence in employment is a fool’s errand. Intelligence, as measured by IQ tests, is highly related to job performance in almost every field—this is why the Army effectively mandates an IQ test score for incoming recruits. As University of Pennsylvania law professor Amy Wax wrote in National Affairs, the Court has consistently argued that Griggs would lead to a competitive meritocracy, not to quotas or affirmative action. Yet clearly those predictions have not been borne out. As often happens, the courts have spoken in airy generalizations while the bureaucracy, in this case, the Equal Employment Opportunities Commission (EEOC), which actually administers the law, has charged ahead with the liberal political project of making the personnel of an organization roughly match the population as a whole.

Gail Herriot, law professor and former member of the U.S. Commission for Civil Rights, recently published a paper with the provocative title, “Disparate Impact Liability Makes Almost Everything Presumptively Illegal.” Because of this, EEOC enforcement will be inherently arbitrary and capricious. Google and other companies friendly to the administration are unlikely to face credible EEOC actions under a Biden administration. Meanwhile, Elon Musk now finds Tesla under EEOC investigations for systematic discrimination. 

This is the real legacy of Griggs: the exercise of raw political power disguised as an appeal to equity. It is not a panacea for the reform of our corrupted civil rights regime, but overruling Griggs can be the first domino in restoring freedom of association as a bedrock American principle. In our current multicultural environment, individuals, communities, and businesses can be trusted more than the federal government to ensure fair and equal treatment for all Americans.