Griggs v. Duke Power Company Reply Brief for Petitioners

    I n the

(EmirJ at %  llniUb States
October T erm, 1970 

No. <m »^

W illie S. Griggs, et al.,

v .
Petitioners,

Duke P ower Company, a  Corporation,
Respondent.

ON W R IT OE CERTIORARI TO T H E  U N ITED  STATES COURT OE APPEALS 
EOR T H E  EO U RTH  CIRCUIT

REPLY BRIEF FOR PETITIONERS

CONRAD 0. PEARSON 
2031/2 E. Chapel Hill Street 
Durham, North Carolina 17701

JULIUS LeVONNE CHAMBERS 
ROBERT BELTON 
216 West 10th Street 
Charlotte, North Carolina 28202

SAMMIE CHESS, J k.
622 E. Washington Dr.
High Point, North Carolina 27262

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
WILLIAM L. ROBINSON 
LOWELL JOHNSTON 
VILMA M. SINGER 
10 Columbus Circle 
New York, New York 10019

GEORGE COOPER 
CHRISTOPHER CLANCY 
401 West 117th Street 
New York, New York 10027

Attorneys for Petitioners

ALBERT J. ROSENTHAL 
435 West 116th Street 

New York, New York 10027 
Of Counsel



I N D E X

PAGE

Argument
I. The Record Does Not Substantiate, and, if 

Anything, Contradicts Respondent’s Claim
That the Test/Diploma Requirement Is Ne­
cessitated by Its Business Needs .................  3

II. The Respondents’ Tests Are Not Given a 
Privileged Status by § 703(h) of Title VII .... 7

III. The Legal Precedents Support the Peti­
tioner’s Position ............................................. 10

Conclusion .........................      12

T able op Authorities

Cases:

Arrington v. Massachusetts Bay Transportation Au­
thority, 306 F. Supp. 1355 (D. Mass. 1969) .............. 11

Dobbins v. Electrical Workers Local 212, 292 F. Supp.
413 (S.D. Ohio 1968) ................................................  11

Gregory v. Litton Systems, Inc., ----- F. Supp. ------ ;
63 Lab. Cas. (J9485 (C.D. Calif. July 28, 1970) ......  11

Hicks v. Crown Zellerbach Corp., 3 CCH Emp. Prac.
Dec. ([8037 (E.D. La. Nov. 6, 1970) ........................ 2,11

Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (5th Cir. 1969), cert, 
denied, 397 U.S. 919 (1970) .......................................  12



H

PAGE

Parham v. Southwestern Bell Telephone Co., 3 CCH 
Emp. Prac. Dec. H8021 (8th Cir. Oct. 28, 1970) ......  2

United States v. Sheetmetal "Workers, Local 36, 416 
F.2d 123 (8th Cir. 1969) ........................................... 12

Statute:
42 U.S.C. §2000e et seq., Title VII of the Civil Rights 

Act of 1964 ................................................................. 7, 8
Section 703(h), 42 U.S.C. §2000e-2(h) .....................  7,8

Federal Regulations on Testing:
EEOC, Guidelines on Employment Selection Proce­

dures, 35 Fed. Reg. 12333 (Aug. 1, 1970) .................  10

Other Authorities:
91st Cong., 2d Sess. 23, H.R. Rep. No. 91-1434 (1970) .... 10 
91st Cong., 2d Sess. S. Rep. No. 91-1137 (1970) ......  8



In the

Supreme (Emtrt nf %  Itttteb States
Octobeb Teem, 1970 

No. i t e f

W illie S. Griggs, et al.,

v.
Petitioners,

Duke P qweb Company, a Corporation,
Respondent.

ON W EIT  OP OEETIOEAEI TO T H E  U N ITED  STATES COURT OP APPEALS 

POE T H E  PO U E TH  CIRCUIT

REPLY BRIEF FOR PETITIONERS

Argument

The respondents in the lower courts in this case suc­
ceeded in reducing Title YII to dealing only with situations 
where there is a- showing of racial animus and they continue 
to pursue that notion in their briefs here. This approach 
has been rejected by the vast majority of District Courts 
and Courts of Appeals, which have made it clear that the 
focus must be on the impact and effect of practices rather 
than merely the motivation behind those practices. Where 
an apparently neutral practice has a serious discriminatory 
impact and effect, it has repeatedly been held to violate 
Title YII unless a continuation of the practice is neces­
sitated by the employer’s job performance needs. These 
cases involved seniority, nepotism, and use of arrest rec­



2

ords, as well as tests, and they make it clear that to know­
ingly and consciously persist in a practice having dis­
criminatory impact and not necessitated by job performance 
needs is to engage in discrimination within the meaning of 
Title VII. (See the discussion at pp. 25-28 of brief for 
Petitioner.)

Two important new decisions, released after the filing of 
our main brief, reaffirm and expand this body of authority 
supporting petitioners. First, in Parham v. Southwestern 
Bell Telephone Co., 3 CCH Emp. Prac. Dec. H8021 (8th 
Cir. Oct. 28,1970), the Court of Appeals reversed a District 
Court decision strongly relied upon in Brief for Respon­
dent (p. 44-45). The District Court had supported the em­
ployer’s use of a high school diploma requirement; but the 
Court of Appeals pointed out that the record contained in­
sufficient data to rule on this point. 3 CCH Emp. Prac. Dec. 
at p. 6051. The Court of Appeals went on to hold that the 
recruitment system of the employer which appeared racially 
neutral was unlawful because of its statistical impact and 
effect. 3 CCH Emp. Prac. Dec. at p. 6050-51. The second 
new decision, Hicks v. Crown Zellerbach Corp., 3 CCH Emp. 
Prac. Dec. 8037 (E.D. La. Nov. 6, 1970), is even more on 
point. The Crown Zellerbach case involved a use of the 
same Wonderlic and Bennett tests used by defendant Duke 
Power Co. here. The court plainly held that such tests 
could not be used unless justified by business necessity es­
tablished after full study and evaluation. The court 
explained:

“Without such study, no employer can have any con­
fidence in the reasonableness or validity of his tests; 
and he therefore cannot in good faith assert that busi­
ness necessity demands that these tests of unknown 
value be used. Title VII does not permit an employer 
to engage in unsubstantiated speculation at the expense 
of Negro workers.



3

Since it is clear that Crown Zellerbach has engaged 
in no significant study to support its testing program, 
the program is unlawful.” 3 CCH Bmp. Prac. Dec. at
p. 6108

Precisely the same analysis should he controlling here. 
In the present case, the discriminatory impact of the test/ 
diploma requirement is clear and incontrovertible. The only 
justification for this requirement advanced by respondents 
is their wishful thinking, wholly unsubstantiated and, if 
anything, contradicted by the record. The decision below 
can be affirmed only if Title YII is to be narrowly limited 
to precluding only racially motivated practices—which as 
Judge Sobeloff, dissenting below, warns, would reduce the 
law to “mellifluous but hollow rhetoric.”

The Brief for Respondent attempts to develop three 
arguments in support of its position: (I) that the test/ 
diploma requirement is based upon “legitimate business 
purpose,” (II) that the company’s tests are privileged under 
§ 703(h) of Title YII, and (III) that legal precedents do 
not support petitioner’s position. As already explained in 
petitioner’s main brief, each of these arguments is un­
founded. However, we will briefly reply here to each of 
these arguments in the order set out by respondents.

I. The record does not substantiate, and, if anything, 
contradicts respondent’s claim that the test/diploma re­
quirement is necessitated by its business needs.

First, contrary to respondent’s claim, their expert wit­
ness, Dr. Dannie Moffie, did not participate in establishing 
either the diploma or test requirement and he offered no 
conclusion that either of these requirements were necessi­
tated by the company’s job performance needs. (See Brief 
for Respondent at pp. 15-16, 18)



4

As to the high school diploma requirement, Dr. Moffie 
testified only that “the assumption is” that the requirement 
is job-related, not that he had verified or even supported 
the assumption (A. 181a). This is understandable since 
Dr. Moffie did not participate in establishing the require­
ment in the mid-1950’s (A. 177a) and was never asked to 
ratify it. He was qualified as an expert only in “Industrial 
and Personnel Testing” (A. 164a). He was asked on direct 
examination to testify only to the appropriateness of the 
tests used by the company (E. 162a-175a). Eespondents 
have tried to read an endorsement of their diploma require­
ment into Dr. Moffie’s testimony, but he clearly did not give 
such endorsement. See Brief for Petitioner at page 42 
n. 51.

As to the test requirement, on which Dr. Moffie did testify 
specifically, even the respondents are not able to claim that 
Dr. Moffie endorsed the requirement as being required by 
job performance needs. Eather, Dr. Moffie testified only 
that the test was a reasonable substitute for the diploma 
requirement (A. 180a-182a). He rendered no judgment on 
the reasonableness of the test as an independent require­
ment. This was a relatively easy judgment to make since 
test scores correlate well with academic level, as compared 
to their poor correlation with industrial job potential. Dr. 
Moffie could not responsibly comment on the test as an in­
dependent requirement in relation to job performance needs 
because of insufficient study and evaluation. See Brief for 
Petitioner at pp. 31-37.

Second, although the respondents make much of the fact 
that “minimum occupational scores in the utility industry” 
on the Wonderlie test generally coincide with the score re­
quired by the company, see Brief for Despondent at p. 18, 
this claim is fully nonsensical. These so-called “minimum 
occupational scores” are merely the “number of questions



5

correctly in 12 minutes reported by one or more companies 
participating in the study” (A. 138b). Since the Duke 
Power Co. participated in the study (A. 169a), these mini­
mum scores may only be confirming what Duke itself re­
ported. It is difficult to imagine a more obvious case of 
attempting to lift oneself by one’s own bootstraps.

Thus, the only thing in the record truly offering any 
support for the company’s diploma/test requirement is 
the testimony of its official, Mr. A. C. Theis.

As to the diploma requirement, Mr. Theis merely testi­
fied that the Company had found in the past that certain 
employees were unable to progress in certain jobs because 
of the limited reading and reasoning abilities. “This,” he 
said, “was why we embraced the High School education as 
a requirement” (A. 93a). This fond hope was, and still is, 
unsupported by any study, evaluation, or substantiation. 
Mr. Theis did not even determine that the poor employees 
were non-high school graduates. The record indicates, if 
anything, that non-high school graduates are able to pro­
gress just as well and perform just as well in the jobs at 
the Duke Power Co. as high school graduates. See data 
cited in Brief for Petitioner at p. 37 n.47 and Brief for the 
United States as Amicus Curiae at p. 20 n.22. This data 
confirms findings made in numerous professional studies 
that requirements like that of a high school diploma bear 
no significant relationship to job success. See Brief for 
Petitioner at p. 37. As to the test requirement, the testi­
mony of Mr. Theis is even weaker. He said only that he 
adopted these tests “because the white employees that hap­
pened to be in Coal Handling at the time, were requesting 
some way that they could get from Coal Handling into the 
Plant jobs. . . .” (A. 200a).

There may be other times and other places where the use 
of a diploma/test requirement can be justified despite its



6

gross discriminatory impact on black employees. However, 
it is intolerable that unsubstantiated speculation which is 
inconsistent with the facts in the record and which is based 
on a desire to help some white employees, should be ac­
cepted as a sufficient basis of justification.

The unreasonableness of permitting these requirements 
to stand in this case is further compounded by the fact that 
the primary effect of the requirements here is to deny black 
employees their only opportunity for good paying jobs. 
The good paying jobs which petitioners seek in the coal 
handling department are ones staffed primarily with non- 
high school graduates. These jobs were traditionally re­
served for whites under the Duke Power Company’s prior 
practice of naked racial segregation of jobs. Each of the 
petitioners has worked for many years for Duke in the 
traditionally black category of “semi-skilled laborer,” per­
forming a wide variety of mechanical and industrial tasks 
which are analogous to duties in the coal handling depart­
ment. See Brief for Petitioner at pp. 39-41. The diploma/ 
test requirement is the only thing standing between these 
blacks and a decent job opportunity. On the other hand, 
no white employee in the plant is cut off from a good pay­
ing job by the diploma/test requirement since all white em­
ployees are in departments which lead to well paying jobs. 
See Brief for Petitioner at pp. 4-7.1

1 Respondents argue that the number of Negroes affected by the 
test requirement was not disproportionately greater than the num­
ber of whites so affected, because the requirement applied to 11 
Negroes and 9 whites. Brief for Respondent at p. 23. Respondent 
neglects to note, however, that all of the whites were in the coal 
handling department where they were eligible for promotion to 
jobs paying as much as $3.31 per hour even if they failed to meet 
the diploma/test requirement, while all of the Negroes were in the 
labor department where they could expect to earn no more than 
$1,895 per hour unless they met the diploma/test requirement 
(A. 72b). (The foreman job in the labor department is reserved 
for high school graduates (A. 63b). Thus the burden of the re­



7

II. The respondents’ tests are not given a privileged 
status by %703(h) of Title VII.

Our view of the legislative history of the §703 (h) is fully 
developed in our main brief (pp. 46-50), as well as in the 
brief for the United States as Amicus Curiae (pp. 21-30), 
the brief of the Attorney General of the State of New 
York as Amicus Curiae in Support of Reversal (pp. 15-20), 
and Judge Sobeloff’s dissenting opinion below. We believe 
that this legislative history clearly shows that §703(h) was 
not intended to offer any protection for tests which are 
not justified by job performance needs. At the very least, 
.however, the legislative history can be said to be conflicting 
and uncertain as to the precise nature of the justification 
required for test use. In such a situation, a subsidiary 
clause like §703(h) must be harmonized with the overall 
purpose of the statute and cannot be read to undercut that 
overall purpose as respondents suggest.

The one thing that is undisputably clear about §703 (h) 
is that it was directed at the problem raised by the Motorola- 
Illinois FEPC case. This case involved a situation where 
tests were struck down because of their adverse impact on 
black applicants without considering whether in fact that 
adverse impact was related to Motorola’s job performance 
needs. The question raised by that case was very different 
from that raised by this case where petitioners concede that 
job performance needs are a reasonable and acceptable 
justification for test use. Because of ambiguous draftsman­
ship, §703(h) could be read to apply to the problem

quirement on the black employees is of a much different magni­
tude than that imposed on white employees. Moreover, even putting 
aside this differential burden, the imposition of a requirement 
which would adversely affect 11 blacks and 9 whites is dispropor­
tionately affecting the Negroes in the context of a plant with only 
14 black employees and 81 white employees.



8

presented in this ease, bnt to do so would take the pro­
vision out of its legislative context and cause a result 
which was not really being considered or focused upon by 
Congress in its consideration of §703(h). We submit that 
it would be a distortion of §703 (h) to apply it to create a 
privileged status for the tests used in this case.

Subsequent legislative developments bear out petitioner’s 
view of §703(h). The respondents have attempted to but­
tress their argument by referring to the fact that a May, 
1968, amendment to Title VII requiring that tests be job- 
related was not enacted. Brief for Respondent at p. 35. 
Respondents’ reliance is misplaced. First, the May, 1968 
amendment was not defeated, as respondents claim, but 
rather was not acted upon by Congress. Since the amend­
ment was only a minor part of a larger bill designed to 
give the Equal Employment Opportunity Commission cease 
and desist powers, the fact that the bill died without Con­
gressional action can hardly be read to say much about 
the test amendment. Subsequently, on August 21, 1970 
(after the filing of our main brief), the Senate Committee 
on Labor and Public Welfare reported out a new bill giv­
ing cease and desist powers to the Equal Employment 
Opportunity Commission. See S. Rep. No. 91-1137, 91st 
Cong., 2d Sess. (1970). The Committee report makes it 
clear that this new bill is directed at precisely the kind of 
problem raised in this case.

“In 1964, employment discrimination tended to be viewed 
as a series of isolated and distinguishable events, for 
the most part due to ill-will on the part of some iden­
tifiable individual or organization. It was thought that 
a scheme that stressed conciliation rather than com­
pulsory processes would be most appropriate for the 
resolution of this essentially ‘human’ problem, and that 
litigation would be necessary only on an occasional



9

basis in the event of determined recalcitrance. This 
view has not been borne out by experience.

“Employment discrimination, viewed today, is a far 
more complex and pervasive phenomenon. Experts 
familiar with the subject generally describe the prob­
lem in terms of ‘systems’ and ‘effects’ rather than 
simply intentional wrongs, and the literature on the 
subject is replete with discussions of, for example, the 
mechanics of seniority and lines of progression, per­
petuation of the present effects of pre-act discrimina­
tory practices through various institutional devices, 
and testing and validation requirements. In short, the 
problem is one whose resolution in many instances re­
quires not only expert assistance, but also the tech­
nical perception that a problem exists in the first place, 
and that the system, complained of is unlawful.”

The Committee report goes on to explain that, this recogni­
tion of the scope of discrimination requires the creation 
of an expert commission with cease and desist powers. 
However, and this is the crucial point for us, the Commit­
tee did not think it necessary to include any significant 
amendment in the substantive violation provisions of Title 
VII in order to enable this commission to accomplish its 
purposes. In other words, the Senate Committee believed 
that discriminatory “systems” and “effects” were already 
covered by the substantive provisions of the Act. The bill 
proposed by this Committee report was passed by the
whole Senate in September, 1970. -----  Cong. Ree. ------
(daily ed. September, 1970).

A similar bill has also been reported out of Committee 
in the House of Representatives. The House bill specifically 
requires that tests be “directly related to the determination 
of bona fide occupational qualifications reasonably necessary



10

to perform the normal duties of the particular position con­
cerned.” H. R. Rep. No. 91-1434, 91st Cong., 2d Sess. 23 
(1970). The House Committee report makes it clear that 
the present language of Title VII already requires that tests 
he related to job performance needs, but that this amend­
ment is necessary to legislatively overrule the misinterpre­
tation given the statute by the Court of Appeals in this case 
below. Id. at 10-11. At this date, the House bill is pending 
in the Rules Committee. Because of the vagaries of the 
legislative process, the eventual outcome of this legislation 
giving cease and desist powers to the EEOC will have to 
await further developments. Whatever the outcome, how­
ever, the crucial lesson for this case is that the substantive 
committees of both houses of Congress and the entire 
Senate are on record as supporting the interpretation of 
Title YII being advanced by petitioners in this case. If 
subsequent legislative developments are ever to cast any 
light on the proper interpretation of a statute, it is clear 
that this case presents the strongest possible instance of 
such subsequent legislative development supporting the pe­
titioners’ position.

III. The legal precedents support the petitioner’s posi­
tion.

First, contrary to respondents’ claim, it is clear that the 
Equal Employment Opportunity Commission opposes the 
imposition of tests and/or diploma requirements under cir­
cumstances such as those presented here. This is made 
clear in the Amicus brief filed by the Solicitor General on 
behalf of the EEOC. Moreover, the EEOC Guidelines 
on Employee Selection Procedures, 35 Fed. Reg. 12333 
(Aug. 1,1970) are unmistakeable in this regard. The EEOC 
guidelines cover both tests and educational requirements. 
See id. at §1609.2. In this regard, the EEOC is fully sup­
ported by the Office of Federal Contract Compliance in its



11

order covering Validation of Tests by Contractors and Sub­
contractors, 33 Fed. Reg. 14392 (1968).

Furthermore, it is clear that the decisions in numerous 
analagous cases below affirm the correctness of petitioners’ 
interpretation of Title VII. On the specific question of 
tests, the decisions in Hicks v. Crown Zellerbach Corp., 3 
CCH Emp. Prac. Dec. f[8037 (E.D. La. Nov. 6, 1970) (dis­
cussed at p. 2 supra) and Arrington v. Massachusetts 
Bay Transportation Authority, 306 F. Supp. 355 (D. C. 
Mass. 1969), are foursquare in requiring substantial study 
and evaluation to justify use of tests having a discrimina­
tory impact. To the same effect is Bobbins v. Electrical 
Workers Local 212, 292 F. Supp. 413 (S. D. Ohio 1968). 
Respondents attempted to distinguish Dobbins on the 
ground that the purpose of the tests there was to discrim­
inate. However, among the things held unlawful in Dobbins 
was a test which the court acknowledged to be “objectively 
fair and objectively fairly graded” on the ground that it 
was unnecessarily difficult. Id. at 433-34. That of course 
is the precise problem here: the test is unnecessarily and 
unreasonably difficult in relation to many, if not all, of the 
jobs to which it applies. It is also clear that numerous cases 
involving analogous practices, rather than tests as such, 
support petitioners’ position. Thus, in striking down the 
use of arrest records as a hiring criterion, the court in 
Gregory v. Litton Systems, Inc., 63 Lab. Cas. 1J9485 held:

“In a situation of this kind, good faith in the origina­
tion or application of the policy is not a defense. An 
intent to discriminate is not required to be shown so 
long* as the discrimination shown is not accidental or 
inadvertent. The intentional use of a policy which in 
fact discriminates between applicants of different races 
and can reasonably be seen so to discriminate, is inter­
dicted by the statute, unless the employer can show



12

a business necessity for it. In this context, ‘business 
necessity’ means that the practice or policy is essential 
to the safe and efficient operation of the business. 
Paper-makers Local 189 v. United States [416 F.2d 980 
(5th Cir. 1969), cert, denied, 397 U.S. 919 (1970)] As 
previously stated, no such justification or necessity has 
been shown for the policy involved in this case.”

Similarly, in cases involving seniority and nepotism the 
courts have found that the particular practices involved 
were adopted innocently by the employer and bore some 
relationship to the employer’s business. However, require­
ments were struck down under Title VII because the em­
ployer’s business interests could be adequately protected 
by excluding unqualified employees without the imposition 
of an arbitrary requirement which had a great discrimina­
tory impact on black workers. See Local 189, United Paper- 
makers and Paper Workers v. United States, 416 F. 2d 980 
(5th Cir. 1969), cert, denied 397 U.S. 919 (1970); United 
States v. Sheetmetal Workers, Local 36, 416 F.2d 123 (8th 
Cir. 1969). This point is more fully described and docu­
mented in our main brief at pp. 22-29.

CONCLUSION

Respondent’s brief persists in misconceiving the issue 
raised by this case. The company believes that we seek 
to “attribute to the respondent a base motive and sinister 
intent to discriminate against its Negro employees.” Brief 
for Respondent at p. 54. As we have tried to make clear, 
that is not our purpose. It would serve the interests of no 
one if Title VII were reduced to a statute requiring claims 
of malice and sinister intent to be established. Rather, it is 
petitioners’ position that respondents have taken a set of 
requirements which are neutral on their face and may be



13

reasonably applied in certain situations, and misapplied 
those requirements to the disadvantage of its black workers 
in the Labor Department. This misapplication of a neutral 
practice, whether maliciously intended or not, has the effect 
of and does discriminate within the meaning of Title VII. 
It has denied petitioners the opportunity which Title VII 
extends to every man and woman—the right to be judged 
on his or her own individual merits rather than under 
arbitrary and discriminatory requirements. It should be 
declared unlawful.

Respectfully submitted,

CONRAD 0. PEARSON 
203% E. Chapel Hill Street 
Durham, North Carolina 17701

JULIUS LeVONNE CHAMBERS 
ROBERT BELTON 
216 West 10th Street 
Charlotte, North Carolina 28202

SAMMIE CHESS, J r .
622 E. Washington Dr.
High Point, North Carolina 27262

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
WILLIAM L. ROBINSON 
LOWELL JOHNSTON 
YILMA M. SINGER 
10 Columbus Circle 
New York, New York 10019

GEORGE COOPER 
CHRISTOPHER CLANCY 
401 West 117th Street 
New York, New York 10027

Attorneys for Petitioners

ALBERT J. ROSENTHAL 
435 West 116th Street 

New York, New York 10027 
Of Counsel



MEILEN PRESS INC. — N. Y. C. 219