Griggs v. Duke Power Co.
Based on Wikipedia: Griggs v. Duke Power Co.
In 1971, the Supreme Court told a story about a fox and a stork.
You might remember the fable. A fox invites a stork to dinner and serves soup in a shallow dish. The fox laps it up easily, but the stork's long beak can't get a drop. Later, the stork returns the favor, serving dinner in a tall, narrow jar. Now the stork eats comfortably while the fox goes hungry. Same offer. Same food. Completely different outcomes—because the vessel determines who can actually partake.
Chief Justice Warren Burger used this story to explain why Duke Power Company had broken the law, even though the company never intended to discriminate against anyone. The case, Griggs versus Duke Power Company, would fundamentally reshape how Americans think about fairness in the workplace. It introduced a revolutionary idea: that good intentions aren't enough. What matters is whether everyone can actually drink from the cup you're offering.
The Dan River Steam Station
Let's go back to North Carolina in the 1950s. Duke Power operated a facility called the Dan River Steam Station, and like many companies in the Jim Crow South, it had explicit racial policies. Black employees could only work in the "Labor" department. The name tells you everything you need to know—this was the hardest, lowest-paid work at the plant.
Here's the crucial detail: the highest salary you could earn in the Labor department was still less than the lowest salary in any of the other four departments. A Black worker could spend decades at the company, master every skill, work harder than anyone else, and still never earn what the newest white hire in another department made on day one.
In 1955, Duke Power added a new requirement. To work anywhere except the Labor department, you needed a high school diploma. The company would even pay two-thirds of your tuition if you wanted to go back to school—a seemingly generous offer. But think about who this policy affected. In North Carolina in 1960, thirty-four percent of white men had high school diplomas. For Black men? Just eighteen percent.
This wasn't because Black North Carolinians were less capable or less interested in education. It was the bitter fruit of decades of segregated, underfunded schools. The state had systematically denied Black children equal educational opportunities, and now a "neutral" diploma requirement locked them out of better jobs.
The Tests Arrive
Then came July 2nd, 1965—the day the Civil Rights Act of 1964 took effect. This landmark legislation made explicit racial discrimination in employment illegal. Duke Power could no longer simply refuse to hire or promote Black workers.
On that very same day, the company introduced something new: standardized tests.
Employees without high school diplomas could now transfer to better departments, but only if they passed two tests. The first was the Bennett Mechanical Comprehension Test, which measured mechanical aptitude—your understanding of how gears, pulleys, and physical systems work. The second was the Wonderlic Cognitive Ability Test, an intelligence test that had been around since 1939.
The timing is worth pausing on. The exact day that explicit racial barriers became illegal, Duke Power erected new barriers that looked completely race-neutral. Just objective tests measuring genuine skills. Nothing discriminatory about that, right?
Except look at the numbers. Fifty-eight percent of white test-takers passed. Six percent of Black test-takers passed.
White applicants were almost ten times more likely to meet the new requirements. And these tests had never been validated—nobody had studied whether they actually predicted who would do the job well. A company vice president admitted the requirements were adopted based on a general feeling that they would "improve the overall quality of the workforce." No data. No analysis. Just an assumption.
What the Lower Courts Said
Willie Griggs and twelve other Black employees sued Duke Power. They argued that these tests and diploma requirements violated Title Seven of the Civil Rights Act, which prohibits employment discrimination based on race.
The federal district court disagreed. Duke Power had abandoned its old explicitly racist policies, the court reasoned. The new tests applied equally to everyone. There was no evidence the company intended to discriminate. Case closed.
The Fourth Circuit Court of Appeals agreed. The tests weren't motivated by discriminatory intent, so they couldn't be unlawful. Intent was the key question, and Duke Power's intent seemed clean.
This reasoning had a certain logic to it. We usually think of discrimination as something someone does on purpose—a deliberate choice to treat people unfairly because of their race. If there's no bad intent, how can there be discrimination?
The Supreme Court saw it differently.
The Unanimous Decision
On March 8th, 1971, the Supreme Court ruled unanimously for the employees. Every single justice agreed.
Chief Justice Burger's opinion cut to the heart of the matter. Yes, the tests applied equally to everyone on paper. But "practices that are fair in form" can still be "discriminatory in operation." The Civil Rights Act, Burger wrote, addressed consequences, not just motivations.
Here's the key passage, and it's worth reading carefully:
Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job seeker be taken into account. It has—to resort again to the fable—provided that the vessel in which the milk is proffered be one all seekers can use.
The metaphor is precise. Duke Power was offering everyone the same vessel—the same tests, the same diploma requirements. But that vessel was shaped in a way that only certain people could use effectively. Black workers, denied equal education for generations, couldn't drink from this particular cup. The formal equality masked a deep substantive inequality.
The Touchstone of Business Necessity
The Court didn't say employers could never use tests. It said something more nuanced: if a test disproportionately excludes minority applicants, the employer must prove the test is "reasonably related" to the job. Burger called this "business necessity"—the touchstone for evaluating any employment practice.
Can you show that people who score well on this test actually perform better at this job? Can you demonstrate that a high school diploma genuinely predicts success in this role? If not, you can't use these requirements to filter candidates.
The evidence at Duke Power was damning on this point. Employees who had never finished high school or passed these tests were already doing the jobs successfully. They were performing well and getting promoted within their departments. The tests weren't measuring anything that mattered for actual job performance.
The facts of this case demonstrate the inadequacy of broad and general testing devices, as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality.
That last line deserves emphasis. Tests and credentials are useful servants, not masters. They're tools that should help us find qualified workers, not arbitrary gates that exclude capable people for irrelevant reasons.
Built-In Headwinds
Burger used another memorable phrase: "built-in headwinds." Employment practices that seem neutral can create invisible resistance for certain groups, like trying to run a race while facing a constant wind your competitors don't feel.
The Court acknowledged that Duke Power didn't seem to harbor discriminatory intent. The company had even tried to help undereducated employees by paying for their high school training. But good intentions, the Court ruled, "do not redeem employment procedures or testing mechanisms that operate as built-in headwinds for minority groups and are unrelated to measuring job capability."
This was the revolutionary move. Before Griggs, proving discrimination generally meant proving someone meant to discriminate. After Griggs, the focus shifted to effects. If your hiring practices disproportionately exclude protected groups, you bear the burden of proving those practices are genuinely necessary for the job.
What Disparate Impact Means
The legal doctrine that emerged from Griggs is called "disparate impact." It's different from "disparate treatment," which is what most people think of as discrimination—treating someone differently because of their race, explicitly and intentionally.
Disparate impact is subtler. The treatment looks the same on the surface. Everyone takes the same test. Everyone faces the same requirements. But the impact falls unequally on different groups.
Think of it this way. A company could require all employees to be at least six feet tall. That rule doesn't mention race or gender. It applies equally to everyone. But it would exclude the vast majority of women and disproportionately affect certain ethnic groups. Unless height is genuinely necessary for the job—maybe you're hiring basketball players or airplane mechanics who need to reach high storage compartments—such a requirement creates an unjustified disparate impact.
The genius of this framework is that it acknowledges how discrimination can persist without anyone intending it. Systems and practices can encode historical inequalities, carrying the past forward into the present. By focusing on outcomes rather than intentions, disparate impact doctrine addresses these structural barriers.
The Connection to Segregated Schools
The Court made an important connection explicit. Why did Black applicants perform worse on these tests? Because they had received inferior education in segregated schools. The Court had recognized this just two years earlier in a voting rights case called Gaston County versus United States, which struck down literacy tests for voter registration in North Carolina specifically because the state's segregated school system had denied Black citizens equal educational opportunity.
The same logic applied here. You can't systematically undereducate a population for generations and then use educational credentials to lock them out of jobs. The diploma requirement and aptitude tests didn't measure innate ability—they measured access to educational resources that had been racially distributed.
Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools.
This is a profound point about what tests actually measure. A test of "general intelligence" isn't some pure metric of cognitive capacity. It's a measure of whether someone has learned certain skills, absorbed certain knowledge, developed certain test-taking abilities—all of which depend heavily on educational opportunity. When that opportunity has been systematically denied, test scores reflect the denial, not the person's underlying potential.
What Griggs Did Not Say
The Court was careful to set limits. The Civil Rights Act doesn't guarantee anyone a job regardless of qualifications. It doesn't require hiring people who can't do the work. It doesn't mandate "discriminatory preference for any group, minority or majority."
What it requires is "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification."
The key words are "artificial, arbitrary, and unnecessary." If a requirement genuinely relates to job performance, employers can use it even if it has disparate impact. A trucking company can require a commercial driver's license. A hospital can require medical degrees for doctors. An accounting firm can test actual accounting skills.
The prohibition is on requirements that don't relate to the job—the diploma demanded when the work doesn't require one, the aptitude test that hasn't been validated, the credential used as a filter rather than a genuine measure of capability.
The Burden Shifts
One of Griggs's most significant holdings concerned who bears the burden of proof. Once a plaintiff shows that an employment practice has disparate impact—that it disproportionately excludes protected groups—the burden shifts to the employer. The company must prove that the practice serves a legitimate business necessity and is genuinely related to job performance.
This matters enormously in practice. Proving what's in someone's heart is almost impossible. But analyzing statistical outcomes and evaluating whether job requirements are actually necessary—that's manageable. The employer knows their own business practices. They have the data on who they hire and why. They're in the best position to justify their requirements.
The Aftermath and Erosion
Griggs didn't end the story. Almost two decades later, in a 1989 case called Wards Cove Packing Company versus Atonio, a more conservative Supreme Court weakened the doctrine. The employer's burden was reduced from proving "business necessity" to merely producing some evidence of "business justification"—a lower standard that was easier to meet.
Congress responded. The Civil Rights Act of 1991 amended the law to restore the Griggs standard, explicitly overturning this portion of Wards Cove. There's an odd footnote to this story: the legislation included language specifically exempting the Wards Cove company itself from the restored standard, a carve-out that raised eyebrows about congressional dealmaking.
The doctrine has also never applied to constitutional claims in the same way it applies under Title Seven. In Washington versus Davis, a 1976 case, the Supreme Court held that equal protection challenges under the Fifth and Fourteenth Amendments require proof of discriminatory intent—disparate impact alone isn't enough. So a private employer with fifteen or more employees is subject to the full Griggs framework under Title Seven, but lawsuits against government employers sometimes face different rules and may be blocked by sovereign immunity.
The Deeper Question
Griggs versus Duke Power forced Americans to grapple with a difficult question: what does fairness actually mean?
One answer says fairness means treating everyone the same. Apply identical rules to everyone. Use the same measuring stick. Let the chips fall where they may.
Another answer says true fairness requires recognizing that people start from different places. If historical injustices have given some groups advantages and others disadvantages, then identical treatment preserves those inequalities. Real fairness might require adjusting the vessel so everyone can drink.
The conservative writer David Frum argued that Griggs redefined discrimination from meaning "unequal treatment" to meaning "failure to make special allowances for the historically-imposed circumstances of protected groups." That's one way to frame it, with the implied criticism that the decision went too far.
But you could frame it differently. Griggs recognized that formally equal treatment can perpetuate substantively unequal outcomes. It asked employers to examine whether their requirements actually serve legitimate purposes or merely filter out people who were disadvantaged by circumstances beyond their control.
Diplomas and Tests as Gatekeepers
The case has resonance far beyond its specific facts. We live in a credential-obsessed society. Job postings routinely require bachelor's degrees for positions that don't actually need them. Standardized tests shape who gets into selective schools and who doesn't. Licensing requirements in field after field create barriers to entry.
Some of these requirements serve genuine purposes. We want doctors who have demonstrated medical knowledge. We want engineers whose bridges won't collapse. Credentials and tests can be valuable signals of competence.
But as Griggs reminds us, they can also be arbitrary barriers—gatekeepers that filter people out for reasons unrelated to actual capability. Every time we impose a requirement, we should ask: does this really predict success in the role? Or is it just a convenient filter that happens to exclude people who were denied educational opportunities?
History, as the Court noted, is filled with examples of remarkable achievement by people without conventional credentials. Abraham Lincoln was a self-taught lawyer. Frederick Douglass educated himself while enslaved. Countless entrepreneurs, artists, and innovators succeeded without the diplomas that gatekeepers might have demanded.
Tests and diplomas are useful servants. They should not become masters of reality.
The Stork and the Fox Today
More than fifty years after Griggs, the fable of the stork and the fox remains instructive. We still build systems that appear fair on their surface but create vastly different outcomes for different people. Sometimes these disparities reflect genuine differences in qualification or effort. Sometimes they reflect historical injustices baked into present-day structures.
The challenge is distinguishing between the two—and having the honesty to change our practices when we discover they're serving as built-in headwinds rather than genuine measures of merit.
Willie Griggs and his coworkers at Duke Power's Dan River Steam Station probably had no idea their lawsuit would reshape American employment law. They just wanted a fair shot at better jobs. They wanted to be judged by what they could do, not filtered out by arbitrary requirements that had nothing to do with the work itself.
The Supreme Court agreed. And in doing so, it taught us that fairness isn't just about offering everyone the same vessel. It's about making sure everyone can actually use it.