ing considerations, can only have the vaguest idea of what the law requires. Change, uncertainty, and instability in the law may be intriguing, and financially rewarding, for lawyers, but it is often quite bad for our clients. To judges the arguments in 5-4 decisions like Wards Cove may be fascinating ideological struggles; a new appointment, or a few second thoughts by a swing justice, may yield get another chapter. But for individuals and firms which must conform their conduct to these decisions, such uncertainty can be quite unwelcome.

From the point of view of civil rights, of course, these retrogressive decisions are unwelcome indeed. But more is wrong here than the technical merits of these decisions. It is wrong that 120 years after the adoption of the Fourteenth Amendment, and 25 years after the enactment of the 1964 Civil Rights Act, black Americans are being forced to fight all over again battles that were fought and won by past generations. Patterson has virtually eviscerated the 1866 Civil Rights Act. Wards Cove has so damaged Griggs that civil rights lawyers are reluctant to bring any more disparate impact cases. Lorance has been construed by one lower court judge as virtually legalizing systematic intentional discrimination. 13 The whole corpus of federal equal employment law is in critical condition.

Civil rights laws, of course, are not the only important social legislation in the country. But for some inexplicable reason, they are the only laws facing wholesale judicial evisceration. Other social problems, once addressed by legislation, stay solved. The U.S. Supreme Court has not indicated any inclination, for example, radically to shrink through reinterpretation the nation's laws forbidding child labor. The still intractable racial problems that the nation will face in the years ahead can never be solved if we have to devote our time and energies just to preserving the progress already made and the legislation already on the books. The national consensus regarding racial discrimination was won only after decades of suffering and at enormous cost. The nation has made a fundamental, if long overdue, decision to condemn racial discrimination, in all its forms and manifestations, and to insist that it be eradicated through all the means known to the law. That decision should not be subject to reconsideration, even in the highest court in the land.

As we discuss each case and the statutory language we seek to have adopted to change the result of the decision, one should note the following with respect to these decisions:

(1) Each deals with the interpretation of a federal statute or the Federal Rules of Civil Procedure, not the Constitution;

(2) Each was decided by a closely divided Court;

(3) In each case, as members of the Court and commentators agree, the Court cut back on principles long established by its own prior decisions, or the Court rejected the law as developed by all of the circuit courts;

14

(4) In each case there was no change in the language of the statute between the original decision and the 1989 Court decisions that wrought the drastic changes; and

(5) In each case the decision made it much harder, and in some cases impossible, for minorities or women to obtain the statutory rights that they would otherwise have been entitled to under the statute.

I will now discuss the statutory language suggested to overturn the results in the Wards Cove and Price Waterhouse v. Hopkins. 15

WARDS COVE

I would like to focus my remarks in particular on the provisions of the proposed legislation that would overrule certain aspects of the June 1989 decision in Wards Cove Packing Co. v. Atonio. Wards Cove is concerned with the application of, and threatens the vitality of, one of the most important title VII cases, Griggs v. Duke Power Co.16 Indeed, Griggs in the field of employment is comparable to Brown in

13 Davis v. Boeing, 1989 West Law 127509 (E.D. Pa. 1989).

14 See, eg., Wards Cove, 109 S.Ct. at 2130, n. 14 (Stevens, J., dissenting); Martin v. Wilks, 109 S.Ct. at 2374 and n. 3.

15 S.Ct. 1775 (May 1, 1989).

16 401 U.S. 424 (1971). Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), provides:

(a) It shall be unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

Continued

the field of education. That unanimous 1971 decision, written by then Chief Justice Warren Burger, contained two distinct and interrelated holdings. Griggs concluded, first, that title VII forbids the use of non job-related tests, job requirements, and other selection criteria, if they have a significant adverse impact on minorities or women. Where such disparate impact exists, it is irrelevant whether or not an employer acted with a discriminatory motive. "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. 17 The only defense would be that the practice was required by business necessity.

In addition Griggs and its progeny established a specific order and method of proof in a disparate impact case, specifically assigning the burden of proof on specific issues among the two adversary parties to the litigation.

First, the plaintiff must establish a prima facie case by demonstrating that the disputed requirement or requirements had a significant adverse impact on minorities or women. Albemarle Paper Co. v. Moody.18 Second, where a prima facie case has been so established, the burden of proof shifts to the employer to prove that the requirement is job related.19 Third, if the employer succeeds in doing so, the plaintiff can still prevail if he or she can show that some alternative requirement would be equally efficacious from the employer's perspective without entailing the objectionable adverse impact.20 This order and allocation of proof was, and is, essential to the holding of Griggs, and to its implementation in the years that followed.

Griggs and its progeny have been of enormous importance in removing, as Congress intended, “artificial, arbitrary and unnecessary barriers" 21 that had previously prevented minorities and women from entering many jobs. The tests at issue in Griggs, for example, excluded 94 percent of all blacks.22 In Albemarle over half of all blacks were denied promotions due to the disputed tests, compared to only 10 percent of white employees. 23 In Dothard v. Rawlinson 24 the combined height and weight requirements excluded approximately 41 percent of all women, but only 0.24 percent of all men.25 Given the potent capacity of such tests and requirements to exclude minorities and women from jobs and promotions, the continued vitality of Griggs is of enormous practical importance.

Prima Facie Case: I would like to begin with an aspect of Griggs, and of the holding in Wards Cove, which the proposed legislation does not affect in any mannerthe quantum of proof necessary to establish adverse impact. I touch on this because I understand that considerable concern was expressed about this question at another hearing earlier this week.

The specific concern, or more accurately the specific misunderstanding, that was expressed, was that a plaintiff could ordinarily establish a prima facie case of disparate impact merely by showing that an employer had a smaller proportion of minority employees than existed in the population as a whole. That was not the law as set forth in title VII of the 1964 Act, it is not the law established by the Griggs decision, it was not the law before Wards Cove,26 it is not the law after Wards Cove, and it would not be the law if this legislation is adopted.

Wards Cove makes clear, as have the lower courts for many years, that proof of a prima facie case requires two additional types of evidence. First, the plaintiff must ordinarily show what impact the requirement actually had on individuals who applied for the position at issue or took the disputed test.27 Plaintiffs may look to

(2) to limit, segregate, or classify his employees or applicants for employment 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 national origin."

17 401 U.S. at 432.

18 422 U.S. 405, 425 (1975).

19 Griggs, 401 U.S. at 437.

20 Albemarle, 422 U.S. at 426.

21 Griggs 401 U.S. at 431.

22 Id. 430 n. 6.

26 There is one very narrow exception to this rule: If the job in question is one which virtually everyone in the general population is qualified to perform, and there is no application process, then a significant disparity between the minority representation in the workplace as compared to the general population could in certain cases be the basis of a prima facie case. See Wards Cove, 109 S.Ct. at 2121 n. 6; Teamsters v. United States, 431 U.S. 324, 340 n. 20 (1977); Dothard v. Rawlinson, 433 U.S. 321, 329-330 (1977).

21 Wards Cove, 109 S.Ct. at 2123.

some other broader pool only if the application process itself is tainted by discrimination, or if there is no application process at all. Second, the plaintiff must show what impact the disputed requirement had on qualified actual or potential applicants.28 Of course in any disparate impact case the plaintiff, by definition, is challenging the legitimacy of one or more qualifications insisted upon by an employer, but where there are qualification requirements of undisputed legitimacy, a plaintiff must ordinarily take them into account in establishing a prima facie case.

Wards Cove clearly indicates that satisfying these requirements will often be difficult. Practical experience demonstrates that plaintiffs frequently have considerable difficulty establishing a prima facie case. There are in fact several hundred disparate impact cases which civil rights plaintiffs lost because they were unable to meet the stringent requirements needed to establish a prima facie case.

The Burden of Proof: Sections 3 and 4 of the bill seek to restore the rule that the burden of proof on the issue of justification in disparate impact cases is on the defendant employer. For 18 years prior to Wards Cove the burden of proof regarding job-relatedness clearly rested on the defendant employer. In Griggs in 1971 the U.S. Supreme Court held unanimously that

29

Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. 2 In Albemarle, decided in 1975, the Court emphasized that an employer must "meet the burden of proving that its tests are 'job related.'" 30 In Dothard v. Rawlinson, decided in 1977, the Court insisted that an "employer prov[e] that the challenged requirements are job related." 31 In 1982, the Court in Connecticut v. Teal held that an "employer must . . . demonstrate that any given requirement [has] a manifest relationship to the employment in question.'

132

The lower court decisions applying Griggs emphasized again and again that this burden was on the employer, not the plaintiff. That point was made in virtually every way it could be stated in the English language. These decisions insisted that the employer bore the "burden of proof," that the employer bore the "burden of persuasion," or that the employer was obligated to "prove," "demonstrate," "establish" or "show" that a disputed requirement was job related. There are a large number of lower court decisions reiterating these well established requirements and finding that a plaintiff failed to establish a prima facie because of these requirements.

As recently as November 1987 the Department of Justice openly agreed that the employer bore the burden of proof. In its amicus brief in Watson v. Fort Worth Bank,33 the Department insisted:

[I]n Griggs... the Court said "Congress has placed on the employer the burden of showing that any given requirement. . . ha[s] a manifest relationship to the employment in question." 34

[A]n employer must show that the device challenged is "demonstrably a reasonable measure of job performance." 35

[A]n employer ordinarily must . . . demonstrate . . . that the selection process has a sufficient connection with effective job performance or efficient business operation. 36

The Department also argued that an employer's burden ought to be greater in a disparate impact case than in a disparate treatment case:

[T]he principle difference between disparate treatment and disparate impact analysis is the showing that a defendant must make in order to rebut a prima facie case of discrimination. In a disparate treatment case based on statistical evidence, the defendant must produce evidence of the “legitimate”, non discriminatory reasons it had for the actions it took and in that way refute the inference than an improper discriminatory motive was at work... By contrast, in a disparate impact case, the defendant must make the more rigorous initial showing that the selection device producing the statistical disparity has a "manifest relationship" to successful job performance or to the safe and efficient operation of its business. 37

28 Id., at 2122 and n. 7.

29 401 U.S. at 432 (emphasis added); see also id. at 431.

30 422 U.S. at 425 (emphasis added).

31 433 U.S. at 329 (emphasis added).

32 457 U.S. 440, 446 (1982) (citing Griggs, 401 U.S. at 432) (emphasis added).

33 108 S.Ct. 2777 (1988). This brief was signed, inter alia, by the Honorable Charles Fried, Donald Ayer, and the Honorable William Bradford Reynolds (hereinafter, "Brief'"').

34 Brief, at 8.

35 Id. at 18 (emphasis added).

36 Id. (emphasis added).

37 Id. at 17 (emphasis added).

The lower courts and commentators 38 have recognized that Wards Cove overturned 18 years of precedent when it placed on the plaintiff the burden of proof regarding job relatedness. In Hill v. Seaboard Coast Line Railroad Co.,39 the Eleventh Circuit commented that "[t]he Supreme Court's decision in Wards Cove made clear that the employer merely has the burden of production. . . and overruled the existing law in this circuit on this issue." In Allen v. Seidman 40 Judge Posner observed Wards Cove... modified the ground rules that most lower courts had followed in disparate-impact cases. Before Wards Cove it was generally believed that if the plaintiff in a Title VII case showed . . . that a criterion . . was disproportionately excluding members of a group protected by the statute, the employer to persuade the judge... that the criterion. effective operation of the employer's business ..

the burden shifted to

was necessary to the Wards Cove returns the burden of persuasion to the employee, while leaving the burden of production on the employer.

The legislation now before this Committee-Sections 3 and 4—would merely restore the law to where it stood prior to the 1989 decision in Wards Cove, placing on the employer, as did Griggs, Albemarle, Dothard and Teal, the burden of proof regarding job relatedness. That allocation of the burden of proof was entirely workable over the last 18 years, and it is eminently fair. When job relatedness is at issue, the employer is in possession of all the relevant evidence, and because all the key workers and supervisors are in its employ, a defendant company is in a position to conduct a validity study; it would be virtually impossible for a plaintiff to obtain the degree of cooperation from defendants knowledgeable employees necessary to conduct an "invalidity study". Wards Cove, as a practical matter, requires civil rights plaintiffs to "prove a negative”—to demonstrate that among the enormous number of conceivable business interests, not one is connected in the requisite manner to the disputed job requirement. That is a burden that few plaintiffs could ever meet. The majority opinion in Wards Cove misuses the precedent in cases like McDonnell Douglas Corp. v. Green,1 and Texas Dept. of Community Affairs v. Burdine 42the disparate treatment cases-to justify shifting the burden of proof on the justification issue to the plaintiff. In the disparate treatment cases plaintiff alleges that the discrimination is intentional. Once he puts in evidence sufficient to establish a prima facie case-sufficient to overcome a motion to dismiss at the end of the plaintiff's case the defendant then offers reasons why what looks like intentional discrimination is not. Because this proof goes to the same factual issue raised by plaintiff's initial prima facie case-the motive of the employer in taking the disputed action-the plaintiff continues to bear the burden of proof. In the disparate impact cases, however, there is no issue of intent, and the issue of business necessity arises only if the plaintiff has carried its burden of proof and persuasion as to disparate impact, which as was demonstrated above represents a vigorous standard of proof. In this situation, therefore, the defense is in the posture of trying to show the court that, even though disparate impact has been proven, there is nonetheless a business necessity that justifies such business practices.43

Accordingly, allocating the burden of proof with respect to business necessity in the disparate impact cases to defendant employers, as Justice Stevens observed in his dissenting opinion in Wards Cove,44 is consistent with the normal rule placing that burden on the party asserting a justification defense. Congress has on occasion expressly provided by statute that the burden of establishing such a justification must be borne by the defendant. The Robinson Patman Act, for example, provides

Upon proof being made... that there has been discrimination in price or services or facilities furnished, the burden of rebutting the prima-facie case thus made by showing justification shall be upon the person charged with a violation of this section, and unless justification shall be affirmatively shown, the [Feder

38 See, note, the U.S. Supreme Court 1988 Term, 103 Harv. L.Rev., 40, 350-361 (1989). 39 1989 U.S. App. LEXIS (5335, p. 23 n. 12, 11th Cir., Oct. 10, 1989)

40 Slip opinion, pp. 1-2 (No. 88-1811, 7th Cir., July 27, 1989)

41 411 US. 792 (1973).

42 450 U.S. 248 (1981).

43 The majority in Wards Cove got misled by Justice O'Connor's opinion in Watson v. Fort Worth Bank, 108 S.Ct. 2777 (1988). In that case it was held that subjective or discretionary employment practices challenged as violating title VII could be attacked under the disparate impact approach. But because she was dealing with a subjective practice she thought that that was the same as intentional discrimination and therefore she wrongly applied the rules developed in McDonald Douglas Corp. v. Green rather than the rules developed in Griggs.

** 109 S.Ct. at 2131 and n. 17.

al Trade] Commission is authorized to issue an order terminating the discrimination.45

the U.S. Supreme Court has adopted a similar burden-shifting rule under the Clayton Act.46 The Equal Pay Act permits an employer, under certain specified circumstances, to utilize salary scales that discriminate, but once there is a

showing that the employer pays workers of one sex more than workers of the opposite sex for equal work, the burden shifts to the employer to show that the differential is justified under one of the Act's four exceptions.47

When a state or locality subject to section 5 of the Voting Rights Act seeks approval of a change in its election laws, whether from the Attorney General or from the federal courts, that state or locality bears the burden of proving that the change has neither a discriminatory purpose nor a discriminatory effect. 48 State statutes in a wide variety of circumstances shift the burden of proof to defendants concerning particular issues. 49

Standard of Job Relatedness: The bill in Section 3 seeks to restore the requirement that the defendant shows business necessity for a rule which has a disparate impact on minorities or women. Judge Posner observed in Allen v. Seidman that Wards Cove "dilutes the 'necessity' in the 'business necessity' defense." 50 Indeed "necessity," once central to the concept of job-relatedness, seems unfortunately to have disappeared completely from the minds of those who joined the majority opinion in Wards Cove. In Griggs the Court held that title VII requires "the removal of ... unnecessary barriers to employment when the barriers operate invidiously to discriminate." 51 "The touchstone is business necessity." 52 In Dothard v. Rawlinson the Court reiterated that title VII mandated removal of such "unnecessary barriers, "53 and held unlawful the requirements there at issue because they were not "essential to effective job performance. "54 Connecticut v. Teal again emphasized the statutory directive for the elimination of "unnecessary barriers" to the employment of minorities or women. 55 As recently as Watson v. Ft. Worth Bank the Court treated as synonymous "the 'business necessity' or 'job relatedness' defense.

1156

But with the advent of Wards Cove the requirement of such necessity was abruptly and categorically rejected:

[T]here is no requirement that the challenged practice be "essential" or "indispensable" to the employer's business for it to pass muster.57

The proposed statutory standard-“essential to effective job performance"-is deliberately, and undeniably more stringent than the new standard announced in Wards Cove: "whether a challenged practice serves, in a significant way, the legitimate employment goals of the employers." 58 In its brief in Wards Cove the Justice

45 15 U.S.C. § 13(b).

46 United States v. Philadelphia National Bank, 374 U.S. 321, 363 (1963):“[A] merger which produces a firm controlling on undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive affects.'

47 Cornina Glass Works v. Brennan, 427 U.S. 188, 196 (1974)

48 Georgia v. United States, 411 U.S. 526, 538 n. 9 (1973); Pleasant Grove v. United States, 479 U.S. 462, 479 (1987).

49 See, e.g., Shifting the Burden of Proof in State Environmental Protection Acts: A Blessina to Environmental Plaintiffs, 8 Envtl. L. 851 (1978); Lungren, Deep Horizons-Legislative Shifting of the Burden of Proof in Implied Covenant Cases, 24 Washburn L. J. 30 (1984)

50 Slip opinion, p. 2

51 401 U.S. at 431

52 Id.

53 433 U.S. at 328

54 433 U.S. at 331

55 457 U.S. at 447

56 108 S.Ct. at 2789.

57 109 S.Ct. at 2125.THE LEGISLATION BEFORE THE COMMITTEE WOULD OVERTURN Wards Cove also in this regard, restoring "business necessity" as the affirmative defense to proof of disparate impact, and defining that phrase to mean "essential to effective job performance." "Necessity" was the touchstone of this defense in Griggs, Dothard, Teal and Watson; the phrase "essential to effective job performance" is taken verbatim from the decision in Dothard. Both that phrase, and the requirement of business necessity, have been widely used by the lower courts to articulate the standard of job relatedness in a disparate impact case. Despite the wide currency of these standards, employers succeeded in large numbers of cases in meeting that requirement and sustaining the legality of tests and job requirements with a proven adverse impact.

58 109 S.Ct. at 2125.