Review Last Class, Griggs v. Duke Power, and Weber Assignment

1. Agenda for 4th Class • Handouts • Slides • Readings • Name plates • Lunch, Friday 12:15-1:15, Law Library Room 214 • Review of Last Class • Griggs v Duke Power

2. Assignment for Next Class • Review any questions from today’s assignment that we don’t discuss in class • Read United Steelworkers v. Weber handout • Questions to think about / Short papers • Everyone should be prepared to discuss all the questions on pages 9-12 of the United Steelworkers v. Weber handout • Mandatory writing • Group 5. Q1 & Q5 • Group 6. Q2 & Q6 • Group 7. Q3 & Q7 • Group 8. Q4 & Q8 • Optional writing -- All questions that are not mandatory

3. Review of Last Class I • Reading a statute • Make sure you analyze a whole sentence, not isolated words • When a sentence is very complicated, use ellipses to focus on words that are of greatest relevance • But make sure, even with ellipses, you are still analyzing a full sentence • If focusing on sexual harassment • 701(a)(1): It shall be an unlawful employment practice for an employer to …. discriminate against any individual with respect to his … terms [and] conditions, …. of employment, because of such individual’s … sex • If focuses on test in Griggs • 703(h): nor shall it be an unlawful employment practice for an employer to give … any professionally developed ability test provided that such test … .is not designed, intended or used to discriminate…

4. Review of Last Class II • Legislative History • Legislators act strategically • Southern Democrats tried to strengthen Civil Rights Bill, in order to alienate Republicans and defeat the bill • Northern Democrats tried to weaken the bill, to ensure Republican support • It is often hard to figure out people’s motives • Was Senator Smith joking when he introduced the amendment forbidding gender discrimination? Was he trying to defeat the bill? Did he genuinely want to protect women from discrimination? • Maybe he wanted to do all of these things?

5. Griggs v. Duke Power I • In 1955, Duke Power started requiring a high school degree for all departments, except Labor • But those already in those departments could stay and be promoted, even if they did not have a high school degree • In 1965, Duke Power began requiring “satisfactory scores” on the Wonderlic (intelligence) Test and Bennett Mechanical Comprehension for all departments except Labor • But those already in departments other than Labor could transfer, if they were employed before 1965 and had a high school degree • Fewer African Americans had those qualifications • High school degree. 12% versus 34% • Able to pass tests: 6% versus 58% • No studies showed relationship between high school degree and/or test scores and job performance • Persons without high school degree and/or who did not pass tests, but were “grandfathered,” were promoted at similar rate as those with

6. Griggs v. Duke Power I • Lower courts found that Duke Power did not have an intent to discriminate • Instituted requirements to “improve overall quality of the work force.” • Duke Power paid “two-thirds of cost of tuition for high school training” • Supreme Court did not dispute lack of discriminatory intent • Supreme Court held, unanimously • Use of Wonderlic and Bennet tests violates Title VII • Employers must show that a test or requirement has a “manifest relationship to the employment in question” • Court gives “great deference” to EEOC interpretation of 703(h) • “professionally developed test” means “a test which fairly measures the knowledge or skills required by a particular job” • Legislative history shows that EEOC interpretation “comports with congressional intent

7. Questions on Griggs • 1. The Equal Employment Opportunity Commission’s views on tests are set out in footnote 7 above. The Court’s opinion states that “the Act and its legislative history support the commission’s interpretation of the statute.” Do you agree that the text of Title VII supports the Commission’s interpretation? How would you use the text to argue in favor of the Commission’s interpretation? How would you use the text to argue against it? • 2. The Equal Employment Opportunity Commission’s views on tests are set out in footnote 7 above. The Court’s opinion states that “the Act and its legislative history support the commission’s interpretation of the statute.” Do you agree that legislative history of Title VII supports the Commission’s interpretation? How would you use the legislative history to argue in favor of the Commission’s interpretation? How would you use the legislative history to argue against it? • 3. The Supreme Court notes that the lower courts found that Duke Power had not intended to discriminate, and the Supreme Court did not disagree. Can you argue that there is evidence that Duke Power intended to discriminate? Assuming that Duke Power did not intend to discriminate, can you argue that it should not be held liable in a suit by employees?

8. Questions on Griggs • 5. The Supreme Court devoted nearly all of its opinion to the Wonderlic and Bennet Tests. Was Duke Power’s high school graduation requirement also a violation of Title VII? Why and/or why not? • 6. Suppose that, in a particular city, for the last ten years, 20% of individuals with nursing qualification have been African American, but that, in the last ten years, only 10% of nurses hired by a hospital in that city are African American. Are those statistics sufficient to prove discrimination? • 7. Is it illegal for an employer to refuse to hire persons convicted of a crime? Think of arguments both for and against. • 8. Suppose an employer does not use tests or formal qualifications to determine whom to hire. Instead, its supervisors (who are all white males) interview candidates and make decisions based on the interviews. If the employer has hired very few women and minorities, has it violated Title VII? Think of arguments both for and against. • Bonus. Can you think of a situation where it would be appropriate and idiomatic in English to say that “X was used to Y,” but the person who used X did not intend to do Y?